With today’s order list, the Court:

• issued merits opinions in seven cases (discussed below), including a toxic torts-based takings claim against a city, an important case about seeking injunctive relief against state officials, a case between two governmental hospital districts, a premises-liability case involving a floodgate, how res judicata might affect a divorce decree, and two cases about what formalities are needed to preserve an appellate point (in a family-law case and in a prison-inmate case);

• granted the petition for review in In re B.G., C.W., E.W., B.B.W., and J.W., No. 07‑0960 (DB), a case about when a party to a parental-termination case is entitled to a free record on appeal; and

• granted the motion for rehearing in Texas Parks and Wildlife v. The Sawyer Trust, No. 07‑0945 (DB), restoring that previously denied petition to the docket.

Toxic torts; taking by public nuisance

City of San Antonio v. Charles Pollock, et al., No. 04-1110 (DB).

This case involves a claim for birth defects alleged to result from the city’s operation of a landfill near a family home. By a 6-2 vote, (( Justice Green did not sit on this case in the Texas Supreme Court. )) the Texas Supreme Court reversed and rendered judgment in favor of the City.

Justice Hecht wrote the majority opinion, joined by the Chief Justice, Justice Wainwright, Justice Johnson, and Justice Willett joined, and (in part) by Justice Brister.

The Court spent the bulk of its time rejecting the plaintiffs’ claims on causation grounds, concluding that the expert testimony had an “analytical gap” in how the expert analyzed certain test results. (( If you want to see the Court’s reasoning about gas dynamics, here’s an excerpt:

The City contends that none of these facts or analyses support Kraft’s conclusion that the Pollocks were exposed to benzene at a level of 160 ppb in the air in their home and on their property. Assuming from Kraft’s data that in 1993-1994, gas in the monitoring well would have been 50% methane and 160 ppb benzene, and that gas of that composition migrated onto the Pollocks’ property, it unquestionably dissipated in the ambient air. Unless the landfill gas was less than 28% of the ambient air — and the methane concentration reduced below 14%, with a benzene concentration of 44.8 ppb — the Pollocks would have suffocated from the methane. Unless gas like that found in the well were less than 10% of the ambient air — and the methane concentration reduced below 5% methane, with a benzene concentration of 16 ppb — there would almost certainly have been an explosion from the methane. There is no evidence whatever from which one could infer the concentration to which Tracy Pollock was exposed in the ambient air of her home and yard, but at the highest concentration possible, the methane — and consequently the level of benzene — could have been only a fraction of that in the sealed monitoring well. Kraft’s opinion that she was chronically exposed to benzene concentrations of 160 ppb has no basis in the record. Indeed, it is directly contradicted by his own data showing such concentrations present only in the well. Kraft’s opinion is the kind of naked conclusion that cannot support a judgment.

That last sentence is the key. The Court treated this analytical gap as a conclusory statement rather than a question of reliability. ))

The Court concluded that the analytical gap in the expert’s reasoning was the kind of unsubstantiated conclusion that could be challenged for the first time on appeal.

Justice Media, in a dissenting opinion joined by Justice O’Neill, contended that this question of characterization was really the key. In the dissent’s view, the appellate court should not have been in the business of second-guessing this expert conclusion because it was really about realibility — and the City had failed to challenge the expert’s reliability in the trial court.

Without an objection, a trial court simply cannot be expected to fulfill its role as gatekeeper. Nor can an appellate court assume this role, particularly after the witnesses have testified, been dismissed, and the record closed. Nevertheless, the Court here assumes the role of gatekeeper ex post facto, allowing the City to complain about analytical gaps for the first time on appeal. Because the City did not object to the reliability of either expert witness in the trial court or complain about the analytical gaps it now details in this appeal, I would hold that the complaint has been waived.

The dissent recognized that it is sometimes difficult to tell which defects in expert testimony are about “reliability” (and thus require a timely objection in the trial court) and which defects about it being “conclusory” (and thus can be raised for the first time on appeal).

The dissent’s suggestion was somewhat philosophical — “[t]he distinction apparently is the difference between something and nothing. As the Court recently explained in Arkoma Basin Exploration Co. v. FMF Assocs. 1990-A, Ltd., 249 S.W.3d 380, 389 (Tex. 2008): An expert’s testimony is conclusory if the expert merely gave an unexplained conclusion or asked the jury to ‘take my word for it’ because of his status as an expert.” Here, because the expert gave a methodology (even if flawed), the dissent would have classified this appellate complaint as going to reliability — and thus to have been waived.

The dissent would, however, have reduced the plaintiffs’ award to fit within the Texas Tort Claims Act cap. So the gap between the majority and dissent is perhaps smaller than first appears, at least insofar as the plaintiffs’ finances are concerned.

As for the takings question, all eight Justices agreed that the evidence did not show that the City had the requisite intent to take property. Mere negligence would not be enough for a taking:

The Pollocks contend that the fact the City knew that [gas leakage was] inherent in the operation of a landfill is sufficient to show that the City knew its operation of the landfill was substantially certain to damage their property. We rejected essentially the same argument in City of Dallas v. Jennings, where homeowners attempted to show the city’s intent to damage their property by sewage flooding from the fact that the city knew that unclogging a sewer can sometimes cause it to back up. The governmental entity’s awareness of the mere possibility of damage is no evidence of intent.

Immunity in intergovernmental suits about who pays for medical care

Harris County Hospital District v. Tomball Regional Hospital, No. 05‑0986 (DB)

Divided 5-4, the Texas Supreme Court held that the Legislature had not waived the immunity held by a regional hospital district to permit suit by a county hospital district. Thus, the Court reversed and dismissed the case for want of jurisdiction.

The majority opinion was delivered by Justice Johnson and joined by Justice Hecht, Justice Wainwright, Justice Medina, and Justice Green. The dissenting opinion was delivered by the Chief Justice, joined by Justice O’Neill, Justice Brister, and Justice Willett.

Injunctive relief against state officials; Ex parte Young comes to Texas

The City of El Paso, et al. v. Lilli M. Heinrich, No. 06‑0778 (DB)

A recipient of city government pension benefits sued the board members and the mayor, alleging that her benefits had been improperly reduced contrary to state law.

The Texas Supreme Court, with the Chief Justice writing an opinion for a unanimous Court, held that “while governmental immunity generally bars suits for retrospective monetary relief, it does not preclude prospective injunctive remedies in official-capacity suits against government actors who violate statutory or constitutional provisions.”

To reach that result, the Court addressed several points that will interest anyone who litigates against the government. The Court affirmed in part (because the officials sued in their official capacities did not have immunity), reversed in part (because the governmental entities did have immunity and because the court of appeals had been mistaken about the capacity in which the individual defendants were sued), and remanded to the trial court.

The Court first emphasized that suits for prospective relief must indeed be brought against state officials, not against state entities. That is because of the old logic of Cobb that “acts of officials which are not lawfully authorized are not acts of the State.” The Court recognized that, “for all practical purposes,” these types of suits are against the State. But the Court nonetheless followed the traditional rule that had been applied in the federal context and in some state cases. Accordingly, the Court affirmed the dismissal of the governmental entity defendants — they retained immunity against this action.

The Court next addressed the difficult question of what remedy could be available in one of these ultra vires suits against state officials. It concluded:

The best way to resolve this conflict is to follow the rule, outlined above, that a claimant who successfully proves an ultra vires claim is entitled to prospective injunctive relief, as measured from the date of injunction. Cf. Edelman, 415 U.S. at 669 (using entry of injunction to distinguish retrospective from prospective relief). Thus, while the ultra vires rule remains the law, see Federal Sign, 951 S.W.2d at 404, Epperson‘s retrospective remedy does not.

Distinguishing between proper and improper relief is likely to be the real sticking point in these cases. The Court’s opinion today provides the framework for those future battles. Retrospective injunctive relief is, as the Court pointed out, often just damages by another name. But prospective injunctive relief — “as measured from the date of the injunction” — is instead a proper attempt to bring government officials back into line.

Because these types of suits require that government officials be named as defendants, they also force courts to sort out whether each named official has been sued in an “official capacity” or an “individual capacity.” An “official capacity” suit asks the official to take some action within the scope of their official powers; an “individual capacity” suit seeks monetary recovery from the individual.

Here, the court of appeals concluded that the officials had been sued in their individual capacities. The Texas Supreme Court disagreed, holding that they were sued in their official capacities. The Court construed the pleadings liberally and looked at the overall relief sought.

Practice tip for future litigants: Specify this in your pleadings to avoid later squabbling about what should be a simple matter. (( It is possible to sue someone in both official and individual capacities, where appropriate, seeking different relief for each capacity. But if you have overreached, you may cause extra proceedings and perhaps even an interlocutory appeal to sort out. ))

The Court also rejected the City’s argument that Heinrich’s claim should fail because she did not offer evidence that the particular reduction in her benefits was against the law. The Court held that there was enough evidence to raise a fact question about this point and thus that disposition on a plea to the jurisdiction was improper.

Divorce decrees and res judicata

Raoul Hagen v. Doris J. Hagen, No. 07‑1065 (DB)

The Texas Supreme Court addressed whether a trial court’s later “clarification” of a prior divorce decree was barred by res judicata. On this record, the Court concluded that it was not. (( The Court’s summary:

Doris and Raoul Hagen’s 1976 divorce decree awarded a percentage of Raoul’s military retirement pay to Doris to be paid if, as, and when he received it. After Raoul’s subsequent retirement from the Army, he was determined by the Veterans’ Administration (VA) to have a service-connected disability. He then elected to be paid VA disability benefit … [which] reduced the amount of military retirement pay he received. When Doris began receiving her percentage of the reduced Army retirement pay Raoul received, she sought enforcement and clarification of the divorce decree. The trial court determined that the decree divided only the military retirement pay being received by Raoul, it did not divide his VA disability benefits, and Doris was entitled to only a percentage of the military retirement pay. The court of appeals reversed. The appeals court held that the trial court modified the 1976 decree instead of clarifying it, and the modification was barred by res judicata principles. We hold that the trial court correctly clarified the unambiguous original decree, and its action was not a modification barred by res judicata principles. We reverse the court of appeals’ judgment and affirm the judgment of the trial court.
))

Justice Johnson wrote a majority opinion joined by the Chief Justice, Justice Hecht, Justice Wainwright, Justice Green, and Justice Willett. Justice Brister delivered a dissenting opinion, in which Justice O’Neill and Justice Medina joined.

Premises liability on the public roadways

Denton County, Texas v. Dianne Beynon, et al., No. 08-0016 (DB)

The Court’s summary:

In this premise-liability case, we decide whether a seventeen-foot floodgate arm located approximately three feet off a two-lane rural roadway is a “special defect” under the Texas Tort Claims Act (TTCA). We hold the floodgate arm does not meet the TTCA’s narrow definition of a special defect. Accordingly, we reverse the court of appeals’ judgment and dismiss the case.

This was a rare Rule 59.1 (decision without oral argument) case in which the Court divided. Justice Willett delivered the majority opinion, in which Justice Hecht, Justice Wainwright, Justice Brister, Justice Green, and Justice Johnson joined. Justice O’Neill delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Medina joined.

The dissent’s view:

It is hard to imagine anything more dangerous than a seventeen-foot metal pole pointing like a spear in the direction of oncoming traffic. The Court doesn’t appear to disagree. It concludes, however, that ordinary users of the roadway are not expected to veer off the asphalt pavement, so anything they might encounter if they do cannot be a special defect. I would agree with the Court if the particular hazard were further from the road than the metal pole that impaled the plaintiff’s vehicle here. But departing a mere three feet from the road to avoid a collision is not out of the ordinary, and the floodgate arm’s close proximity to the road’s edge posed a threat that normal users of the road would not expect. Because the Court concludes otherwise, I respectfully dissent.

The §263.405(i) “statement of points” in a parental termination case did not bar a later claim for ineffective assistance of counsel

In re J.O.A., T.J.A.M., T.J.M., and C.T.M., children, No. 08-0379 (DB)

Justice Medina delivered the opinion of the Court. Justice Willett delivered a concurring opinion.

From the Court’s opinion:

The Texas Family Code requires that a statement of points on which a party intends to appeal be presented to the trial court within fifteen days after the signing of a final order terminating parental rights. Tex. Fam. Code §263.405(b). The Code further provides that an appellate court is to consider only those issues presented to the trial court in a timely filed statement of points. Id. § 263.405(i). The issue in this parental rights termination case is whether the failure to follow these procedural rules in the Family Code precludes appellate review of an ineffective assistance of counsel claim.

Along the way, the majority held that §263.405(i) of the Family Code would be unconstitutional if applied to prevent a parent from raising a meritorious complaint about the insufficiency of evidence supporting a parental-termination an issue mentioned this previous post and that the Court had previously reserved judgment upon when denying review in In re D.W., T.W., and S.G., No. 08-0258 (DocketDB).

Today, the Court concluded that:

an ineffective assistance of counsel claim can be raised on appeal despite the failure to include it in a statement of points. We also agree with the court of appeals that section 263.405(i) is unconstitutional as applied when it precludes a parent from raising a meritorious complaint about the insufficiency of the evidence supporting the termination order.

Justice Willett’s concurrence makes reference to the amicus curiae brief filed by the Solicitor General of Texas (mentioned in this earlier post) and addresses steps that courts can take to prevent manipulation of this rule by advocates.

A prison inmate’s hand-typed copy was sufficient to satisfy a technical prerequisite to suit

Michael Lou Garrett v. Jack M. Borden, et al., No. 08-0506 (DB)

In a per curiam decision issued without oral argument, the Court held that a prison inmate was not barred from pursuing his grievance claim in court for failure to file “a copy of the written decision” from the prison’s internal grievance system, as required by Texas Civil Practice and Remedies Code §14.005(a)(2).

It seems that the inmate actually filed a “a hand-typed, verbatim reproduction” rather than an imaged photocopy. The court of appeals held that was insufficient; the Texas Supreme Court reversed and remanded, holding that this copy satisfied the statute.