In today’s very busy order list, the Texas Supreme Court decided six cases (including two certified questions from the Fifth Circuit) and set three new cases for oral argument.

Visitors from Above the Law…

Welcome! The part of this post that relates to “a talent for bench-slappery down in Texas” was originally buried at the end. Here’s what you’re looking for:

In today’s order list, the Texas Supreme Court granted review in City of Waco v. Kelley, No. 07-0485, from the intermediate court of appeals located in Waco, Texas. COA Majority COA Dissent

The dissent, written by the Chief Justice of the Waco Court of Appeals, has a (cited) quote from Pretty Woman and concludes one of its sections with “I dissent, I really dissent.”

It also contains the following epilogue, which I quoted in my original post:

Dear City of Waco,

Sorry to put you through this, but you are going to have to go to the Supreme Court in Austin, again. The Tenth Court of Appeals in Waco has some problems right now that I hope are fixed real soon. But for now, you are in the appellate district that was reversed in 2006 more often than any other appellate court in Texas. I have done what I could, by writing lots of dissenting opinions, but it has not really helped the situation any. Good luck on your trip to Austin.

Sincerely,

The dissenting Chief Justice

Back to regularly scheduled blog programming …

This post covers the first three decisions and also the three granted cases. I’ll have another post up shortly that discusses today’s other three decisions.

• Evanston Insurance Co. v. ATOFINA Petrochemicals, Inc., No. 03-0647. As with Frank’s Casing two weeks ago, this is another case in which the Court grants a motion for rehearing and then reconsiders its earlier decision.

  The pre-rehearing decision, also written by Justice Green, was 9-0, holding that “the policy language excludes coverage for the additional insured’s sole negligence.” The Court reversed and remanded.

  The post-rehearing decision reaches the opposite conclusion. By a vote of 9-0, the Court holds that the policy in question did provide that coverage. And it then proceeds to walk through (and reject) the insurer’s other arguments for denying coverage. The Court thus affirmed the court of appeals’s conclusion that ATOFINA was an insured entitled to coverage but it reversed the aspect of the judgment that had approved attorney’s fees and damages under article 21.55 of the Texas Insurance Code.

  Justice Green delivered the majority opinion (unanimous on some points), in which Chief Justice Jefferson, Justice O’Neill, Justice Wainwright, Justice Brister, Justice Medina, and Justice Willett joined, and in which Justice Hecht and Justice Johnson joined as to the parts not covered by their separate opinion. Justice Hecht filed an opinion concurring in part and dissenting in part, in which Justice Johnson joined. Those two Justices would have remanded the question whether the insured should now be estopped from challenging the reasonableness of the underlying settlement because it refused to participate in those negotiations. The dissent argues that is a factual dispute warranting a remand.

• Bowden v. Phillips Petroleum Co., No. 03-0824. In this oil-and-gas class action, the court of appeals had reversed a trial court order that had certified three subclasses of plaintiffs. The Texas Supreme Court affirmed as to two of those subclasses, but it reversed the court of appeals as to one of those subclasses — holding that a class action was permissible.

  With regard to the subclass of plaintiffs whose certification was approved, the court of appeals had concluded that the contract language they sought to enforce was ambiguous and thus that individual issues would predominate. The Texas Supreme Court disagreed, holding that the language was unambiguous.

  As for the other two subclasses, the Court analyzed the claims and concluded that individual issues would predominate.

  In this analysis, the Court took an approach at odds with that of the court of appeals, which had focused on the adequacy of the class representatives. The court of appeals had concluded that, because the class representatives were willing to narrowly tailor their claims to try to meet the other requirements for class certification, they were per se inadequate. ((The reason would have to do with how res judicata would apply to class actions. Those strategically excluded claims might preclude individual class members from bringing similar claims.))

  The court of appeals summarily concluded the “willingness of the class representatives to abandon claims for the sake of achieving commonality” means the representatives cannot adequately represent the class, and thus the trial court abused its discretion in certifying the class. 108 S.W.3d at 404. Under that approach, class representatives would always risk being inadequate representatives if they did not assert all possible claims for each individual class member. At the same time, though, class representatives bringing excessive numbers of individual claims may burden their ability to satisfy the typicality and predominance requirements.

  We previously explained that a class representative’s decision to assert certain claims and abandon others affects the certification determination. The choice of claims to pursue or abandon is one relevant factor in evaluating the requirements for class certification such as typicality, superiority, and adequacy of representation. …

  Although the Court affirmed the court of appeals with regard to two of the subclasses, it did so on the different ground of predominance. With regard to the third subclass, the Court reversed the court of appeals and remanded the case to the trial court.

  Justice Wainwright delivered the opinion of the Court. (Justice Brister not sitting)

• PR Investments and Specialty Retailers, Inc. v. State of Texas, No. 04‑0431. This case concerns the nature of a trial court’s jurisdiction over a condemnation action. Here, TxDOT began condemnation proceedings involving a parcel owned by PR Investments. At some time between a valuation being suggested by a commissioners hearing and the trial de novo in the trial court, TxDOT announced some changes to its plans for the proposed roadway. PR Investments moved, and the trial court agreed, that those changed facts meant that it had no jurisdiction to hear the case because its jurisdiction was merely “appellate,” echoing the Texas Supreme Court’s use of that term in a prior case. ((State v. Nelson, 334 S.W.2d 788 (Tex. 1960). ))

  In a unanimous opinion authored by Justice Willett, the Court today explained that the “appellate” metaphor cannot be carried so far as to exclude the trial court from hearing new evidence:

  The trial court’s function in a condemnation proceeding is “appellate” in the sense that the case is first considered by the special commissioners, and hence, as we noted in Nelson, the court’s jurisdiction “is appellate as distinguished from original or concurrent.” The court’s jurisdiction is not, however, “appellate” in the sense that the evidence is fixed in the record of the proceedings below and the court is confined to that paper record, as ordinarily occurs when an appellate court reviews a case. Quite the opposite, the statutory scheme makes no provision for the commissioners’ hearing to be recorded, and provides that “[i]f a party files an objection to the findings of the special commissioners, the court shall cite the adverse party and try the case in the same manner as other civil causes.” In other words, the proceedings that occurred before the special commissioners are not considered, and the case is tried to the court de novo. There is no option typically available to an appellate tribunal to simply affirm the special commissioners’ award; instead, “[u]pon the filing of objections, the Special Commissioners’ award is vacated and the administrative proceeding converts into a normal pending cause . . . .” We agree with TxDOT that it is incongruous to label the trial court as appellate in the ordinary sense “given that its function is not to review and correct, but to determine the value of the property anew.”

  The Court thus affirmed the court of appeals judgment and remanded for the trial court to reconsider its original award of discovery sanctions (which had been predicated on the trial court’s erroneous conclusion that it had been divested of jurisdiction).

The next blog post will cover the following three decisions, also handed down today:

• Fairfield Insurance Co. v. Stephens Martin Paving, L.P., No. 04-0728.

• National Union Fire Insurance Co. v. Crocker, No. 06-0868.

• Chau v. Riddle, No. 07-0035. With a per curiam opinion, the Court reverses the court of appeals’ judgment and remands the case to that court.

Three cases set for oral argument

The date and time for these arguments has yet to be announced.

Petitions granted

• Kerlin v Sauceda, No. 05-0653, from Cameron County; 13th district (13‑01‑00062‑CV, ___ SW3d ___, 06‑09‑05) COA Decision

  This case goes way back, involving the ownership of Padre Island as traced back to a Mexican land grant in 1829. That interest was conveyed, mortgaged, litigated, and contested in courts of both nations for years. The current litigation involves about as many flavors of claim and issue preclusion as can be found in any textbook.

• City of Waco v. Kelley, No. 07-0485, from McLennan County; 10th district (10‑03‑00214‑CV, 226 SW3d 672, 05‑02‑07). COA Majority COA Dissent

  Here’s an excerpt from the dissent:

  Dear City of Waco,

  Sorry to put you through this, but you are going to have to go to the Supreme Court in Austin, again. The Tenth Court of Appeals in Waco has some problems right now that I hope are fixed real soon. But for now, you are in the appellate district that was reversed in 2006 more often than any other appellate court in Texas. I have done what I could, by writing lots of dissenting opinions, but it has not really helped the situation any. Good luck on your trip to Austin.

  Sincerely,

  The dissenting Chief Justice

Mandamus set for argument

• In re Schmitz, No. 07‑0581,from Bexar County; 4th district (04‑07‑00359‑CV, ___ SW3d ___, 07‑11‑07) (Chief Justice Jefferson not sitting)