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Category: 'Order Lists'

No opinions or grants this week [Sep. 13, 2013]

September 13th, 2013 · Comments Off on No opinions or grants this week [Sep. 13, 2013]

With this week’s orders list, the Texas Supreme Court did not issue any opinions or choose any new cases for argument.

The Court held its first argument sitting this week. On Monday, Chief Justice Jefferson made some remarks about his departure, noting that cases argued this week are unlikely to be decided before October 1. With that in mind, he sat out the arguments and let Justice Hecht as the senior Justice preside. On Tuesday, the Governor made the same choice, selecting Hecht to be the next Chief Justice effective October 1.

Tags: Order Lists

SCOTX takes the Deepwater Horizon case [Sep. 6, 2013]

September 6th, 2013 · Comments Off on SCOTX takes the Deepwater Horizon case [Sep. 6, 2013]

With today’s orders, the Texas Supreme Court formally accepted review of In re Deepwater Horizon, No. 13-0670 , the case that it received from the Fifth Circuit last week. The issues covered by the certified questions will now be briefed, and the Court will most likely set the case for argument in January or February.

The Court did not grant any other petitions for review. Among the denials, there was only one case that had reached the merits-briefing stage: Texas Tech University Health Sciences Center v. Margarita Hernandez Villagran, et al., No. 12-0531 . Because petitions that reach full briefing are usually handed down after conference weeks (which this week was not), I decided to look a little more closely.

The Texas Tech petition raised immunity issues under §101.106 and had been fully briefed for about six months. It was apparently waiting on the outcome of Texas Adjutant General's Office v. Michele Ngakoue, No. 11-0686 . That decision was handed down last week, and marked a 5-4 rejection of the state’s strict view of §101.106 — which was also at the heart of the petition denied today.

Next week: The first oral arguments of the new term will be held Monday, Tuesday, and Wednesday. The Court’s calendar shows both Thursday and Friday blocked out for the State Bar appellate CLE in Austin, at which several Justices and members of the Court staff will be speaking.

I’m working on a kind of “StatPack” about the Court’s term. I hope to finish that next week. If you’d like numbers sooner, you can peek at the updated authorship tables and voting charts. These tables are integrated with my case database, so you can drill down to see exactly which opinions are being counted.

Tags: Case Notes · Order Lists

13 decisions in the Court’s end-of-term orders [Aug. 30, 2013]

August 30th, 2013 · 1 Comment

With today’s orders list, the Texas Supreme Court ends its 2013 Term. The Court issued 13 decisions overall, including 11 signed opinions.

The past two weeks’ decisions have been remarkably fragmented for this Court. Before last week, there had only been 2 pure concurring opinions issued all term, 4 pure dissents, and 3 concurrence/dissent combinations. In the past two weeks alone, there have been 7 pure concurrences, 9 dissents, and 1 concurrence/dissent combination.

With today’s orders, the Court also lifted the abatement in Larry T. Long, L. Allan Long, and B. Virginia Long... v. Castle Texas Production Limited Partnership, No. 11-0161 , setting it for oral argument in November.

As the term ends, the Court has 12 cases argued but still awaiting a decision.

Decisions

Because what my readers secretly want on the Friday before Labor Day weekend is a stack of case summaries…

The Court held that, when a trial court grants a motion for new trial, its stated reasons can be substantively challenged through a mandamus action to see whether they fit with the record.

This was today’s only unanimous signed opinion.

In it, the Court reaches a split decision on whether personal jurisdiction applies to these claims. On the trade-secrets claim, the Court concludes that two meetings in Texas are sufficient contacts to confer personal jurisdiction. On the tortious-interference claims, the Court found that the contacts were not sufficient. So the Court partially affirms and partially reverses the decision below.

The Court holds that Texas courts should use a “neutral principles of law” approach to resolve competing claims to church property. “Under the neutral principles methodology, courts decide non-ecclesiastical issues such as property ownership based on the same neutral principles of law applicable to other entities”. Applying that method, a majority of the Court concluded that the record here did not support summary judgment. The national church body had requested summary judgment based on the competing “deference” model of First Amendment law, which the Court declined to adopt. Accordingly, the record that was assembled to support summary judgment showed only that the national church body had recognized a certain local faction as being “true” and “loyal,” not that this faction had a legal entitlement to the property on neutral principles. The Court therefore remanded to the trial court for further proceedings.

The dissent agreed that “neutral principles” should be the approach taken by Texas law but disagreed about the application of that rule to this summary-judgment record.

Applying its decision today in Robert Masterson, Mark Brown, George Butler... v. The Diocese of Northwest Texas, the Rev. Celia Ellery, Don Griffis..., No. 11-0332 , the Court holds that the summary judgment record was not sufficient for either side to prevail. Accordingly, it returns the case to the trial court.

The four-Justice dissent in this case argued that the direct appeal was outside the Texas Supreme Court’s jurisdiction because the trial court’s order did not purport to rule on the constitutionality of a state statute.

The Court rules that an attorney’s affidavit (as an expert in a legal-malpractice case) was too conclusory to support summary judgment because it had a “fatal analytical gap.” Here, the question is whether the law firm should have obtained a settlement amount higher than they did. The Court found that the analysis in the affidavit — which did not compare these settlements to specific other settlements, by comparable injuries and circumstances — was inadequate to raise a fact issue that might defeat summary judgment.

Law school professors take note: This is a real, live statute of frauds case. Here, the question involved the bar on oral agreements that are a suretyship: “an oral promise ‘by one person to
answer for the debt, default, or miscarriage of another person’ is generally unenforceable.” Tex. Bus. & Com. Code §26.01(a), (b)(2). The claim here involved “an oral promise to an attorney to pay the attorney’s fees incurred by one of Dynegy’s former officers.” The Court held that agreement barred by the statute of frauds.

The Court examined the common-law “unlawful acts doctrine” — under which a plaintiff cannot recover for injuries if they were engaged in some unlawful act. The Court holds that common-law defense must yield to the Legislature’s adoption of a comprehensive scheme for proportionate responsibility in Chapter 33 of the Civil Practice and Remedies Code. Under that law, any misconduct like this must “be apportioned rather than barring recovery completely.” The Court thus agreed that the summary judgment was improper and returned the case for trial.

The three-Justice dissent argued that the unlawful-acts doctrine is not about apportioning responsibility but has more to do with whether a competing legal principle (that an act is illegal) should prevent an enforecable duty from arising: “A court’s refusal to enforce an illegal contract is not to benefit or punish either party but to protect public policy in not allowing the law to further an illegal purpose. The application in tort cases serves the same end.”

The Court holds that a municipality’s moratorium on development (aimed at preventing overtaxing the city’s scarce sewage resources) did not apply to a subdivision that has already been approved.

The dissent argues that the result of the case will be cities more reluctant to approve development projects in advance — “a wonderful irony in a case won by a developer.” The dissent takes issue with the majority’s strict adherence to statutory text rather than looking for a broader purpose.

The Court addresses what happens when a plaintiff sues a government employee but, under §101.106, should have sued the government unit. The holding is that the suit is treated as if it had been filed against the proper defendant (the governmental unit), and that proceedings to dismiss the claim against the wrong defendant (the employee) do not undermine a plaintiff’s right to sue the governmental unit. In short, “while it makes sense to interpret the section as curtailing suits against employees that could be brought instead against the government, it would be illogical for the election-of-remedies provisions to prohibit the very suits the TTCA authorizes.”

The four-Justice dissent argued that the statute requires a plaintiff to actually dismiss the claim against employee, and that failure to strictly comply with that statute requires dismissal of the claim against the governmental unit as well.

The Court holds that the requirement that medical expert reports be served on all “parties” by the 120th day extends to those parties named in the petition as defendants but who have not yet been formally served with process for the lawsuit. The Court further holds that this “service” of a medical expert report does not need to follow the formalities that Rule 106 requires for serving the citation in the underlying lawsuit.

The Court holds that a rule issued by a state agency cannot create a procedure to allow decisions about permanent lifetime workers-compensation benefits to be reopened — “a procedure the Legislature deliberately removed in 1989. The Legislature’s choice is clear, and it is not our province to override that determination.”

The dissent argued that, “Without the implied power to determine continuing eligibility for [lifetime benefits], the Division could not ensure that income benefits are administered in a cost-effective way. It is unlikely that the Legislature would require the workers’
compensation system and its carriers to allocate resources in such a way as to require the payment
of lifetime benefits, often for decades, to workers who do not meet the statutory criteria.”

The Court concludes that a school district employee’s report of problems to various school administrators was not a report to a “law enforcement official” within the scope of the Whistleblower Act.

The Court holds that the provision of the Texas Uniform Fraudulent Transfer Act that claims are “extinguished” after four years is a statute of repose, not a statute of limitations. Therefore, the Court holds that it cannot be extended by the statutory tolling provision (§16.064(a) of the Civil Practice and Remedies Code) that can reopen the statute of limitations if a pending lawsuit is dismissed for want of jurisdiction.

Tags: Order Lists

8 Decisions, 10 Grants, and More [Aug. 23, 2013]

August 23rd, 2013 · Comments Off on 8 Decisions, 10 Grants, and More [Aug. 23, 2013]

Today’s orders list was extensive, with opinions handed down in eight cases, ten cases granted for oral argument this fall, and a large number of petition denials (including those that had advanced to the “briefing on the merits” stage and were thus considered at a full conference).

That’s too much for one blog post.

Opinions issued

You can click on these to reach each separate opinion. Summaries to follow.

If you’re keeping score at home, Justice Boyd — with three pure concurring opinions and one concurring/dissenting opinion today — is making a strong push to be the Justice with the most separate opinions this term. (My running totals are here.)

Grants

The Court granted review in the two “gay divorce” cases (previous blog post) that have been pending on its docket, setting an argument date of November 5, 2013:

The Court also formally accepted the certified question in the mortgage modification case I blogged about earlier this week, as well as another certified question about how to allocate settlement funds among multiple beneficiaries and an intervening insurance carrier:

Other cases granted:

Tags: Order Lists

The last “catching up” post of summer

August 21st, 2013 · Comments Off on The last “catching up” post of summer

August has begun quietly at the Court, as the summer ends and the Court starts to welcome new law clerks.

With the orders issued this week, last week, and the week before that, the Court issued no opinions and chose no new cases for oral argument.

There are 24 cases that have been argued this term (and one from last term) that are awaiting a decision. For some of those, the wait may not be much longer, with the traditional burst of opinions as August draws to a close (and the Court’s fiscal and statistical calendars reset for September).

The Court’s public calendar shows two conference days this week and one next week, so we may also see some new petition grants.

Tags: Order Lists

Catching up on July orders [July 26, 2013]

July 26th, 2013 · Comments Off on Catching up on July orders [July 26, 2013]

July is the quietest month at the Court, and this month has been no exception. With the orders issued this week, last week, and the week before, the Court issued no opinions and chose no new cases for oral argument. The petitions on the list were disposed without full briefing and without being held for discussion at the Court’s next conference, in mid-August.

Meanwhile, the actual day-to-day work of appellate law carries on. And I’ve been using the slight break from blogging to advance some projects that, if things go well, should be ready to share this fall.

Tags: Order Lists

Very quiet orders list today [July 5, 2013]

July 5th, 2013 · Comments Off on Very quiet orders list today [July 5, 2013]

Today’s orders list had no activity, other than two previously abated cases being granted for purposes of settlement.

The Court’s public calendar does not show any private conferences scheduled until mid-August.

Unlike the U.S. Supreme Court, the Texas Supreme Court does not freeze the issuance of orders or opinions during the heat of summer. Consistent with the last few Julys, we may continue to see a trickle of orders, and perhaps even opinions, as the Court moves toward the traditional burst of activity in August.

Tags: Order Lists

Six sets of opinions; four grants [Jun. 28, 2013]

June 28th, 2013 · Comments Off on Six sets of opinions; four grants [Jun. 28, 2013]

With today’s orders list, the Texas Supreme Court issued opinions in six cases and chose four petitions for oral argument this fall.

There was a defamation case that will get media attention. (Everyone likes to read about their own business, newspaper and TV reporters included.) With that in mind, those of you readers in the appellate business should pay especially close attention to two of the less prominent cases today — both of which were decided on questions of appellate waiver.

Opinions

Defamation for republishing defamation by others; the substantive-truth “gist” defense

The Court revisited its earlier decision in McIlvain v. Jacobs, 794 S.W.2d 14 (Tex. 1990), dealing with media reports that repeat third-party allegations. The McIlvain opinion was very short, and somewhat unclear.

In this case, the broadcaster reported various allegations against a medical provider, some of which were statements made in third-party disciplinary proceedings. The story juxtaposed details of disciplinary proceedings related to substance abuse with (unrelated) allegations being made in a lawsuit about medical mistakes, weaving them together in a way that the doctor claims conveyed the impression that he had been disciplined for using substances while operating on patients, which was not true.

The court of appeals, relying on McIlvain, concluded that Texas law did not allow defamation liability to someone who repeated a third-party’s defamatory allegation, such as the raw materials for this story.

The Texas Supreme Court disagreed, both with that holding and with whether these defendants had carried their summary-judgment burden of showing the broadcast as a whole was substantially true.

As the Court explained, “the almost-universal rule in the United States is that one is liable for republishing a defamatory statement. McIlvain did not change that rule but rather reaffirmed that one must prove the substantial truth of the gist of a broadcast to avail oneself of the truth defense.” So, the “third-party allegation” rule is not a complete defense.

The Court then analyzed whether the record conclusively established the “substantial truth” of the story to support summary judgment. The measuring stick is whether the “broadcast taken as a whole is more damaging to the plaintiff’s reputation than a truthful broadcast would have been.”

In that, the Court looks to the story’s “gist”: “A broadcast with specific statements that err in the details but that correctly convey the gist of a story is substantially true. … On the other hand, a broadcast ‘can convey a false and defamatory meaning by omitting or juxtaposing facts, even though all the story’s individual statements considered in isolation were literally true or non-defamatory.'” Thus, the focus is not on whether small details are precisely true, but rather on the overall impact on the reader.

The Court concluded that, based on this summary-judgment record, “a person of ordinary intelligence could conclude that the gist of the broadcast at issue was that the physician was disciplined for operating on patients while taking dangerous drugs or controlled substances.” Because that is more damaging to his reputation than a truthful report would have been, it was not proper to grant summary judgment on the substantial-truth defense.

Waiver: Failing to appeal certain dismissed health-care claims can effectively waive your right to contest the others

Among other claims, the plaintiff filed sued this nursing home for retaliation and fraudulent billing and filed an expert report, which the trial court found to be deficient. The trial court dismissed the billing claim but not the retaliation claim. The nursing home appealed the retaliation claim; the plaintiff appealed the dismissal of the billing claim.

Ultimately, the Texas Supreme Court did not reach the merits of whether a retaliation claim was covered. Instead, the Court noted that it was based on the same facts as one of the other medical claims that was dismissed — and because the plaintiff here failed to appeal that dismissal, the issue was essentially waived in the trial court.

This is an interesting holding for those who are deciding which issues to appeal, and I’m still digesting how it fits with the recent holding in Certified EMS, Inc. d/b/a Cpns Staffing v. Cherie Potts, No. 11-0517 that an expert report need only address a single valid health-care liability theory to avoid dismissal. The suggestion of Certified EMS is that having one valid theory is enough to win on appeal; the suggestion of PM Management-Trinity is that failing to appeal every related theory can result in waiver on appeal. The lesson for plaintiffs may be to winnow out your weakest claims before the expert-report stage so you don’t risk an appellate waiver later.

Waiver: When it’s ambiguous whether a claim has been disposed by summary judgment

What should an appellant do if it’s not clear whether a summary-judgment motion actually addressed all claims in the case?

Here, two claims were advanced: social-host liability and negligent undertaking. The trial court granted summary judgment. On appeal, the plaintiff argued that the defendant’s motion had failed to address one of the claims (negligent undertaking) and thus the trial court’s award of summary judgment should be reversed in part. The court of appeals agreed.

The Texas Supreme Court concluded that the trial-court motion actually was broad enough to reach both claims because one of the motion’s grounds was framed broadly enough to cover both duty rules. So the Court reversed without reaching the merits of whether summary judgment was proper.

But, instead of remanding to the court of appeals for it to address those merits, the Court concluded it could not. Why? Because the appellant’s brief here only challenged the procedural question whether the summary judgment reached both claims, not whether the record was sufficient to support summary judgment on the second claim, the substantive question was waived on appeal. The Court thus reinstated the trial court’s original summary judgment.

The lesson: If it’s not clear whether a summary-judgment motion resolves all claims, a careful appellate lawyer will argue both about that procedural question and the substance of the claim to avoid this case-killing waiver.

Estoppel is not effective against a child-support obligation

After a child-support obligation was imposed on a father, the two parents agreed that in exchange for him acceding to a termination of parental rights, his child-support obligation would cease. They signed paperwork to that effect, which was never filed with a court.

Nine years later, the father was sued by OAG seeking to collect $81,000 in child support and arrearages. The father argued that he had relied on the mother’s representation and that collection should thus be estopped as inequitable.

The Court rejected the estoppel argument, explaining that under the statute, child support

is not a debt owed to the other parent. For that reason, estoppel would be inappropriate here. That doctrine protects a party who is harmed by relying on the promises or actions of another. In such situations, the harmed party, who might otherwise be at fault, is excused from performance or payment of a debt. But in cases involving child support, the assertion of the defense would compromise the welfare of a child who is at the mercy of his parents’ choices. …

As a result, the parents’ actions, either collectively or alone, cannot affect the support duty, except as provided by statute.

The Court did not address whether the trial court could have approved the parties’ agreement here, but in the absence of such an order, the father could not avoid the duty to pay support.

Gambling machines

The Court agreed with the State that certain “eight-liner” machines qualified as gambling equipment for purposes of civil forfeiture. The dispute was whether the machines offered “exclusively … noncash merchandise prizes, toys, or novelties, or a representation of value redeemable for those items.” The State argued, and the Court agreed, that the machines fell outside that narrow exclusion.

Calculating benefits for city workers

The Court construed some city ordinances about calculating overtime pay and termination benefits for firefighters. Ultimately, it concluded that certain overtime pay by these plaintiffs was not earned but that the city had underpaid termination benefits by excluding certain aspects of their compensation from the calculation of their prior “salary.”

Chosen for Argument

The descriptions of the cases below were taken from Osler McCarthy’s summary of the issues:

Tags: Order Lists