Benny P. Phillips, M.D. v. Dale Bramlett, et al., No. 07-0522 (DB)

In an order issued on Monday, the Texas Supreme Court denied the pending motion for rehearing in Phillips v. Bramlett, a 5-4 case about the duties of insurance companies to the physicians they cover in medical-malpractice cases.

Court-watchers know that almost all orders denying rehearing are listed on the Friday order lists. Why the unusual timing of this denial?

The answer comes from Article 5 of the Texas Constitution §31(d):

(d) Notwithstanding Section 1, Article II, of this constitution and any other provision of this constitution, if the supreme court does not act on a motion for rehearing before the 180th day after the date on which the motion is filed, the motion is denied.

The motion for rehearing in Phillips was filed on April 3, 2009. The 180th day would have been Wednesday, September 30, 2009 — before the next Friday order list.

This very specific, 180-day deadline is a nice benchmark for Texas docket watchers. If the Texas Supreme Court keeps a rehearing petition around for more than a few months, that is a strong indication that some action is being considered. (( That action might be (1) a true rehearing, in which the Court resets the case for argument; (2) a conclusive rehearing in which it issues a judgment different than the previous judgment; or (3) a revised opinion in the case that leaves the Court’s earlier judgment intact. ))

My DocketDB site maintains a list of recent motions for rehearing in the Texas Supreme Court, as well as motions that have been pending from 45 to 90 days and more than 90 days.

In re International Profit Associates, Inc., No. 08-0531 (Tex. Jun. 12, 2009) (per curiam) (DocketDB)

The first draft of this note was written the day this opinion came out, but it was left in the cutting room when the blog took a hiatus this summer.

At last week’s State Bar of Texas appellate CLE in Austin, the subject of enforcing forum-selection clauses against non-signatories to a contract was a big point of discussion, so I’ve decided to dust off this case note and share it. Please let me know if you have further thoughts about how this case fits in with general Texas contract law or the evolving law about how to enforce contract provisions against nonsignatories.

This is a strange little contract case.

If two parties innocently sign a contract that clearly has a missing page — say, “page 7 of 14” is left out of the final deck — what is the legal effect? Is that page nonetheless part of the contract? Do the parties mean to formally incorporate it by reference? Would one party have to try to “reform” the contract to enforce a term on that page against the other? If the counter-party had never seen that page or discussed its terms at any point in the negotiation, how would contract reformation be shown?

Put down your pens. The contract exam is over.

This case has an added wrinkle — one that moves us down the hall from the first-year “Contracts” classroom to the “Conflict of Laws” course. The disputed page in this case includes a forum-selection clause. And that might make all the difference.

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Islamic Society of Arlington Texas, Inc. v. Joe Kaufman, No. 09-0699 (DB)

This pending petition involves a defamation claim brought against an author whose work appeared on an internet site.

The substantive defamation question is probably not as interesting as the threshold question of whether this defendant was entitled to an immediate, interlocutory appeal of the denial of his summary judgment motion.

Under Texas law, very few trial court actions can trigger an interlocutory appeal. One of those is a special provision for a class of defamation claims, which is triggered when the trial court:

denies a motion for summary judgment that is based
in whole or in part upon a claim against or defense by a member of
the electronic or print media, acting in such capacity, or a person
whose communication appears in or is published by the electronic or
print media, arising under the free speech or free press clause of
the First Amendment to the United States Constitution, or Article
I, Section 8, of the Texas Constitution, or Chapter 73; (( See Tex. Civ. Prac. & Rem. Code §51.014(a)(6). ))

The plaintiffs in this case argued that Kaufman did not qualify as a “member of the electronic or print media” because of the nature of the website on which he published his work.

The Second Court of Appeals disagreed in this opinion, making clear that they were not announcing a bright-line rule. The Court held that it had jurisdiction over this appeal because of the particular facts about this author and this website. It then reversed the trial court, rendering judgment for the defendant.

Now the plaintiffs have filed a petition with the Texas Supreme Court. No response has yet been filed or requested. (The current docket status and a few other articles are linked here).

Hat tip: The procedural question in this case originally came to my attention through the post “Texas Islamic Groups Argue That Internet Speech Should Be Less Protected Than Print, Radio, or Television Speech” on the Volokh Conspiracy, and I made a note to follow the case.

On Friday, the Texas Supreme Court granted an emergency stay in In re Art Harris, No. 09-0761, a petition filed by a freelance reporter who is fighting an order to turn over his hard drive in civil litigation growing out of the Anna Nicole Smith estate battle.

Although this petition involves a freelance journalist (and thus might involve some broader First Amendment principles or even Texas’s recently enacted shield law), it may boil down to a more general question about discovery in civil cases: Have the standards for electronic discovery that the Court announced in In re Weekley Homes, L.P., No. 08-0836 (DocketDB), been met in this case?

You can follow future activity in this petition at DocketDB.

Other materials about the underlying state court suit have been collected by the Citizen Media Law Project here (and materials about a related federal court suit here). Other background is available here.

Sources: “Court grants freelancer’s motion to protect hard drive” (RCFP)

Marks v. St. Luke’s Episcopal Hospital, No. 07-0783 (Aug. 28, 2009) (DocketDB)

Is an injury caused by a defective hospital bed a “health care liability” claim subject the expert-report requirement imposed by Texas’ recent medical-malpractice reforms?

The Justices on the Texas Supreme Court divided 5-4 on that question this morning, issuing a total of five separate opinions. The answer? “No.” (( Court watchers might note that Justice Brister, who has announced his departure next week, was among the 5 Justices in the majority. If this opinion had lingered a little longer, it would have been a 4-4 deadlock awaiting a new Justice to decide. ))

If this fact pattern seems familiar, it should. In 2006, the Texas Supreme Court considered this same case:

After full briefing, we granted the Hospital’s petition. Rather than parse through Marks’s claims, however, we vacated the court of appeal’s judgment without reference to the merits and remanded for the court of appeals to consider the nature of these claims in light of Diversicare. St. Luke’s Episcopal Hosp. v. Marks, 193 S.W.3d 575 (Tex. 2006) (per curiam). Following our remand, a divided court of appeals affirmed the trial court’s dismissal for want of a timely expert report, concluding that Marks had asserted only health care liability claims. 229 S.W.3d at 402. One justice dissented in part, urging that Marks’s fourth claim concerning the defective footboard was a premises-liability claim rather than a health care liability claim under the Medical Liability and Insurance Improvement Act. Id. at 403 (Jennings, J., dissenting in part).

Justice Medina wrote the majority opinion. Its conclusion was that the medical-malpractice reform statute was meant to affect malpractice, not just any accident that happened to occur at a medical facility:

By comparison, neither the statute nor the historical background suggests that physicians or health care providers were similarly challenged when obtaining commercial general liability insurance coverage for ordinary, non-medical accidents on their premises. The Legislature was responding only to a medical-malpractice insurance crisis, and medical malpractice insurance generally does not cover premises liability claims. . . .

All patient injuries in a health care setting, regardless of cause, may be said to implicate patient safety in the broader sense, but not all patient injuries involve malpractice. Given the statute’s objective and the Legislature’s express concern, the Legislature evidently did not intend to define safety as broadly as the Hospital proposes.

The Chief Justice joined that opinion and also wrote an interesting separate concurrence, in which he noted that he had disagreed with this position in Diversicare but was joining today’s opinion out of respect for stare decisis (although he did not use that term).

The principal dissent, which had four votes, was written by Justice Johnson:

In order to preclude Marks’s suit from being subject to the MLIIA, the Court must, and does, reach three conclusions with which I disagree. The first is that one injury based on a single set of facts can, by the manner in which pleadings are formulated, be both a health care liability claim and a non-health care liability claim. The second is that a hospital bed furnished to a post-surgery hospital inpatient is not an inseparable part of health care provided by the hospital. The third is that accepted standards of hospital safety do not include providing safe hospital beds to patients confined in the hospital.

Justice Hecht and Justice Wainwright each wrote separate dissents as well.

This was the most divisive case on today’s fiscal-year-end order list. More summaries are on the way.

Yesterday, the Court issued briefing requests in Combs v. Texas Entertainment Association, No. 09-0481 (DocketDB), the petition challenging the Third Court’s ruling earlier this year about the constitutionality of the tax colorfully known as the “pole tax”. This briefing request does not mean that the Texas Supreme Court will ultimately grant review in the case. But it is the next significant step in the Court’s internal process, in which both sides and any interested amici can present their full written arguments to the Court.

This briefing request followed the Court’s conference on Tuesday, at which it was considering more petitions held over from its summer recess. The Court also asked for briefing in ten other petitions. The full list of the Texas Supreme Court’s briefing requests can be accessed through this link for the next 30 days.

In re Boma O. Allison, No. 08-0705 (Jefferson, C.J.) (DocketDB)

The lawyer in this disciplinary appeal appeared before a six-member hearing panel. Only four members could attend the hearing itself — three of whom were lawyers and one a member of the general public.

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Combs v. Texas Entertainment Association (DocketDB)

That was pretty quick. Just last week, a three-judge panel of the Austin Court ruled 2-1 (in three separate opinions) that Texas’s $5-per-patron fee for certain, ahem, gentlemen’s clubs that serve alcohol was unconstitutional. Justice Henson and Chief Justice Jones would have applied slightly different standards for assessing governmental intent; Justice Puryear would have upheld the law.

The petition for review has already been filed. It’s available for download as a PDF. The State’s policy rationale? In 15 pages, the word “rape” appears 19 times.

Article: Star-Telegram (AP)