On the last day of its oral-argument sitting last week, the Court also requested briefing on the merits in a dozen cases.

Two of them drew amicus involvement at the petition stage:

• Lowe v. Hernandez, No. 07-0574, from Fort Worth (2nd COA). An amicus submission was made by the Texas Alliance for Patient Access.

• In re Honza, No. 08-0011, from Waco (10th COA). Two amicus letters were submitted, both pro se: one by Kendall Drew and another by Gary Harrison.

The other ten are:

• Truckload Fireworks v. Morrow, No. 07-0362, from Eastland (11th COA)

• The Cadle Co. v. Ortiz, No. 07-0497, from Corpus Christi (13th COA)

• Nacogdoches County Hospital District v. Newman, No. 07-0588, from Tyler (12th COA)

• Retamco Operating, Inc. v. Republic Drilling Co., No. 07-0599, from San Antonio (4th COA)

• Seger v. Yorkshire Insurance Co., No. 07-0612, from Amarillo (7th COA)

• City of Lubbock v. Nunez, No. 07-0655, from Amarillo (7th COA)

• Pharr-San Juan-Alamo Independent School District v. Acosta, No. 07-0731, from Corpus Christi (13th COA)

• In re Collins, No. 07-0737, from Tyler (12th COA)

• Texas Department of Criminal Justice v. Mcelyea, No. 07-0754, from Austin (3rd COA)

• R.C. Jones v. Rustin Transportation Co., No. 07-0851, from Houston (1st COA)

Last month, the Court decided Igal v. Brightstar, No. 04-0931 (majority dissent), addressing what happens to a claimant whose administrative proceeding fails because he did not comply with the 180-day time limit set by the Texas Payday Law. The eight members of the Court sitting on the case ((Justice Hecht was recused.)) deadlocked 4-4, and the Chief Justice requested that the Governor appoint a court of appeals Justice to break the tie. Justice McCoy of the Second Court of Appeals in Fort Worth ultimately joined the side that held that subsequent litigation was barred under res judicata principles by the adverse administrative judgment.

I wrote about an earlier amicus filing in the case here.

After receiving an extension of time to do so, counsel for Igal has just filed his motion for rehearing. In one of the few rigid timetables the law imposes on the Texas Supreme Court, it now has 180 days (from yesterday) to rule on this pending motion.

In re LaRhonda Torry, No. 08-0026.

Early this afternoon, the Texas Supreme Court issued an order denying the petition for mandamus relief in the pending Fort Worth election case involving State Senate District 10. Sometime later in the day, the Court amended that order list to also deny “without prejudice” the pending Houston case involving Texas House District 147 (held by Rep. Garnet Coleman).

Like the Court’s disposition of the Fort Worth case, this order also cited Texas Rule of Appellate Procedure 52.3(e), which generally requires that a mandamus petition first be presented to the intermediate court of appeals. The rule is discussed in the earlier post about the Fort Worth case.

In re Cerda, No. 08-0028.

This was the petition for mandamus relief filed with much fanfare in the Texas Supreme Court last Friday by a group of firefighters in Fort Worth challenging whether Wendy Davis could be on the Democratic Primary ballot for the nomination to challenge State Senator Kim Brimer.

Later that same day, the Court requested a response to the mandamus petition that would have been due this Friday

But, this afternoon the Texas Supreme Court issued an order denying the petition for mandamus relief “without prejudice.”

The Court’s order merely cited Texas Rule of Appellate Procedure 52.3(e), which generally requires that a mandamus petition first be presented to the intermediate court of appeals (here, the Second Court of Appeals in Fort Worth):

(e) Statement of jurisdiction. The petition must state, without argument, the basis of the court’s jurisdiction. If the Supreme Court and the court of appeals have concurrent jurisdiction, the petition must be presented first to the court of appeals unless there is a compelling reason not to do so. If the petition is filed in the Supreme Court without first being presented to the court of appeals, the petition must state the compelling reason why the petition was not first presented to the court of appeals.

The mandamus petition asserted that there was insufficient time before the March 4th primary to first seek relief from the court of appeals. The Court appears not to have been persuaded that this was a compelling reason, at least in this case.

In re LaRhonda Torry, No. 08-0026.

This election-related mandamus petition was filed in the Texas Supreme Court on Friday by former Representative Ron Wilson. In today’s Houston Chronicle, Clay Robison reports that:

Rep. Garnet Coleman, D-Houston, drew a last-minute challenger, LaRhonda Torry, in the Democratic primary, but a few days later Harris County Democratic Chairman Gerry Birnberg rejected Torry’s application. Birnberg said he couldn’t accept her filing fee because she had not yet designated a campaign treasurer.

The Texas Secretary of State’s Office disagreed with Birnberg but couldn’t order the party to put Torry on the ballot.

Torry then retained lawyer and former state Rep. Ron Wilson, who late last week filed a petition with the Texas Supreme Court seeking an order to have Torry placed on the ballot.

The Court has requested a response by 10:00 am this morning, January 14th. (( The response date in the other election-related mandamus filed last Friday (see this earlier post) was set for Friday, January 18th. That might or might not reflect the Court’s judgment about the strength of the petitions. One possibility is that — because the mandamus petition in that other case indicates that the relator was not even sure if the respondent had counsel — the Court was simply trying to ensure time for an adequate response. )) Given that the Court left several openings on its early-February calendar, it’s quite possible that the Court would decide to set this case for argument on February 6th or 7th.

[Updated evening of 1-14-2008: Late today, the Texas Supreme Court denied this petition without prejudice under Texas Rule of Appellate Procedure 52.3(e) — in essence, instructing the parties to first seek relief from the intermediate court of appeals.]

It does not appear that the Court’s private conference yesterday led to any new briefs-on-the-merits requests. But, last Friday, the Court did request full briefing in the merits in Brookshire Grocery Co. v. Goss, No. 07-0085. (Docket Sheet).

That case style should sound familiar. That same day, the Court issued a sharply divided 5-4 decision denying mandamus relief in In re Brookshire Grocery Co., No. 05-0300 (majority dissent).

Through that mandamus, Brookshire sought to have the trial court’s award of damages vacated in its entirety and the case returned for a new trial, consistent with the trial court’s untimely order to that effect. The Court denied that requested mandamus relief last Friday. By requesting full briefing on this parallel appeal, the Court has given Brookshire an opportunity to present its additional complaints about the merits of that trial court’s judgment.

The case deals with the tort duty owed by a grocery store to its employee who was injured on the job by tripping over a cart loaded with frozen Thanksgiving turkeys, for which she was eventually awarded substantial damages:

Goss began working at Brookshire Grocery Company in Quitman in 1999. She worked for a while in the Mineola store, but had returned to the Quitman store and, in November 2002, was working in the deli section of the store. Shortly before Thanksgiving 2002, Brookshire’s employees had been taking orders for frozen turkey dinners for customers. To keep them at the proper temperature, the employees stacked the dinners on a lowboy cart and placed the cart in the deli cooler while the market freezer was being rearranged.

A lowboy cart is used to move inventory and stands about ten inches off the ground. It is approximately five feet long, and about two-and-one-half feet wide. A lowboy cart has a handle on one end and can only be maneuvered using this handle. This lowboy was loaded with Thanksgiving foods which were boxed and stacked three to four boxes high, leaving less room in the cooler for employees to move around. Goss had to go into the cooler to get some frozen potato logs to cook and put in the deli. There were also other carts–regular shopping buggies–in the cooler at the time.

Goss admitted she noticed the lowboy cart when she entered the cooler November 23, 2002. She stepped over the corner of the lowboy to get over to the area where the potato logs were located. On obtaining the necessary items, she turned around, hit her shin on the lowboy, reached around to grab a shelf to keep from falling, and “pulled [her] back.” In her petition, she explained similarly that she tripped over the lowboy and then “twist[ed] as she fell, injuring her knee and back.”

Goss immediately went to the hospital. She filled out an accident report two days later, listing the “cart in cooler” as the cause of her injury. Her supervisor also filled out a report in connection with the accident, stating that “Barbara turned around and fell over the blue stock cart.”

More details can be found in the court of appeals’s opinion. The case also involves questions of causation and damages, as well as an alleged charge error involving the submission of both a premises liability and negligence claim when both were not supported by the trial record.

Kroger has weighed in by filing an amicus curiae brief at the petition stage.

Once the merits briefing is complete later this spring, the Court will decide whether to deny review, to set the case for argument, or to hold the case for possible summary disposition.

Yesterday’s Austin American-Statesman has a feature article delving into the background of a pending Texas Supreme Court case — Exxon Corp. v. Emerald Oil & Gas Co., No. 05-0729 [docket sheet] and No. 05-1076 [docket sheet].

The Statesman article, titled “A Texas tale: Oil, business meet history, sabotage“, places this case against a larger backdrop of oil, land, and politics in Texas. It also gives a quick overview of the policy debate raging about who should bear these risks:

The bottom line, the one the state’s petroleum industry is focused on, is not whether Exxon sabotaged the wells. It’s whether Exxon was required to plug the wells in a way that minimized re-entry problems for the next operator.

Jerry Patterson, chairman of the Texas General Land Office, urged the Supreme Court to rule against Exxon, arguing that its method of plugging denied access to an essential natural resource and deprived the state of tax money.

Reopening old wells is the only economical way to extend the life of many Texas oil fields, Patterson said in a brief. If Exxon ‘is allowed with impunity to submit false reports to the Railroad Commission,’ companies may decline to reopen plugged wells for fear of incurring unexpected costs, he added.

But Exxon argued that existing law and court precedent require it to plug a well in ways that preserve the environment, not preserve access for other companies. It warned the Supreme Court that siding with Emerald could create a flood of lawsuits against oil field operators that file public records containing mistakes.

In addition to the Texas Land Commissioner, other amicus curiae briefs have been submitted by the Texas Alliance of Energy Producers, the Texas Land and Mineral Owners’ Association, the Texas Oil & Gas Association (which also submitted an amicus letter earlier in the case), the Texas and Southwestern Cattle Raisers Association

On February 13, 2007, the Court heard oral argument in two segments. ((The Court elected not to consolidate these related petitions for purposes of argument, instead permitting counsel for the various parties more latitude in advancing their divergent arguments. One would, however, expect the Court to consolidate the two cases for purposes of issuing a single global decision in the case.)) The oral argument in docket No. 05-0729 focuses on the common-law background rule and the governing substantive statute. [audio] The oral argument in docket No, 05-1076 focuses on Exxon’s statute-of-limitations defense and the fraud-related claims against Exxon. [audio]

The Texas Supreme Court’s decision this June in Westbrook v. Penley, 231 S.W.3d 389 (Tex. 2007) [No. 04-0838] is the subject of this case note in the December issue of Harvard Law Review..

An excerpt from the case note’s analysis:

Recently, in Westbrook v. Penley, the Texas Supreme Court held that a civil court lacked subject matter jurisdiction over a claim against a pastor and state-licensed professional counselor who released information he learned in a counseling session to church elders for the purpose of disciplining a congregant-counselee.
* * * *
Although the court was appropriately concerned about the effect liability would have on internal church disciplinary procedures, it inadequately protected Penley’s confidences and set a precedent that allows the improper disclosure of private information. Instead, the court should have recognized that Westbrook himself decided what set of standards should prevail when he chose to accept state certification as a professional counselor. By accepting state certification, Westbrook voluntarily assumed a duty of confidentiality and therefore should have faced liability notwithstanding the Free Exercise Clause, just as others assuming similar duties may face reduced protection of their free speech rights.

(Via Concurring Opinions.)