Category: 'Order Lists'
June 21st, 2013 · Comments Off on Four sets of opinions; one grant; one rehearing granted [Jun. 21, 2013]
Opinions
A non-suit can toll the expert report requirement for a medical-malpractice suit
The Court holds that the 120-day deadline for medical expert reports is tolled when a plaintiff files a voluntary non-suit. Thus, a plaintiff who filed a lawsuit and then voluntarily non-suited that claim 4 days before the 120-day deadline could later file a new lawsuit and expert report.
The Court rejected the argument that a plaintiff who voluntarily non-suits cannot later file a claim. Instead, the Court held that a plaintiff re-filing a suit just has a shorter time period to file the report, reflecting whatever portion of the original 120 days remained at the time of the first non-suit.
When must a mineral owner accommodate a prior agricultural use of the land?
The Court holds that a cattle rancher failed to overcome a motion for summary judgment brought by a mineral company, which argued that the rancher could not prove that their wells violated the “accommodation” doctrine.
The Court ultimately held that the rancher’s evidence on summary judgment was not specific enough about the precisely narrow point — whether he had other, reasonable ways to conduct each aspect of his cattle business even with the operating well on his land.
Although it ruled against the rancher on this record, the Court announced two legal holdings that may favor the next landowner in a similar position:
- The Court holds that it was irrelevant whether the rancher held other short-term land leases to which cattle might in theory have been moved.
-
The Court also holds that, when the prior use was cattle ranching, it is no answer for the mineral company to argue that the rancher could have switched to some other “agricultural” use other than cattle ranching.
Scope of the remand in this class-action case
Continuing a theme of the term, this marks the Court’s return to a previous case: the oil-and-gas class-action case KATHRYN AYLOR BOWDEN, BEULAH POORMAN VICK, OMER F. POORMAN... v. PHILLIPS PETROLEUM COMPANY, GPM GAS CORPORATION, PHILLIPS GAS MARKETING COMPANY..., No. 03-0824
.
After the case was remanded, the trial court permitted the class plaintiffs to add a new claim. The defendants challenged that with both a mandamus petition (arguing to enforce the mandate) and an interlocutory appeal (arguing that the class certification was improper).
The Court ultimately concluded that the interlocutory appeal was the right procedural vehicle to use and that “the trial court abused its discretion in allowing the addition of a class claim for breach of the implied covenant to market without requiring Yarbrough to file an amended motion for class certification or holding a certification hearing[] and that the trial court abused its discretion in failing to conduct a rigorous analysis of res judicata in contravention of our mandate in Bowden.”
Today’s orders list also dismissed as moot the parallel mandamus petition, In re ConocoPhillips Company f/k/a Phillips Petroleum Company, Dcp Midstream, Lp f/k/a Gpm Gas Corporation..., No. 12-0199
.
Home equity lending rules
This is the long-awaited decision about Texas’s home-equity lending rules. I’ll write more about this case in a separate post.
Petitions Granted
This is (another) petition about the “certificate of merit” expert-report requirement for those suing licensed architects or engineers. The wrinkle in this case is that the claim was filed as a cross-claim, not by the original plaintiff. The question is whether a cross-claim must also include a certificate of merit at the time of filing or face dismissal.
Rehearing of a Previously Denied Petition Granted
This petition challenges a trial court award of sanctions against a litigant. Some of the issues include whether it was proper to sanction the litigant (rather than counsel) and whether the record supported a sanction measured by the full attorneys fees incurred by the other side. The Court has not set an argument date or granted the petition. Instead, it has just withdrawn its previous order denying review and returned this to the active docket.
Tags: Order Lists
June 14th, 2013 · Comments Off on Two opinions, no grants [Jun. 14, 2013]
The Texas Supreme Court released two opinions with today’s orders list. It did not grant any new cases for review.
Opinions
The scope of “abuse” in parental-termination case can include risk of harm, including evidence that other children in the home were abused
This is an expedited parental-termination appeal. The Court heard oral argument in April, and today it issues an opinion upholding the state’s decision to terminate.
A key issue in the case was whether the statute allowed removal of a child based on evidence, not that the child himself or herself had been abused, but that another child in the same house had been. The Court concluded that the statute permitted this because the concept of “abuse” was written broadly enough to include risk from an unsafe environment:
Consistent with chapter 262’s removal standards, ‘abuse or neglect of the child’ necessarily includes the risks or threats of the environment in which the child is placed. Part of that calculus includes the harm suffered or the danger faced by other children under the parent’s care.
Whistleblower Act and internal university policies
In this per curiam opinion, the Court revisits the case The University of Houston v. Stephen Barth, No. 08-1001
. This time, the Court reached the merits and held that the Whistleblower Act did not protect a report of violation of mere university rules to an internal official of the university lacking law-enforcement authority.
The specific decision here is narrow enough that the Court thought a per curiam was appropriate, even though (as the Court noted), “We have never before construed the phrase ‘a rule adopted under a statute or ordinance'” — the statutory language at issue. The Court had previously held that a rule adopted by a University’s board of regents could qualify under the statute. So the question here became whether the particular policy at issue had been approved by the Board of Regents (and thus was law enough for Whistleblower Act protection).
The Court examined the trial record here, and found that the record and testimony was not specific on that point and thus there was no evidence to support a waiver of immunity. (( Page 6: “In fact, the record is unclear as to which party enacted the SAM’s administration’s policies.” )) The Court also took judicial notice of the Board of Regents policies, which suggested that the rules in question normally would have been approved by the Chancellor (and, implicitly, not the Board of Regents).
Tags: Order Lists
June 7th, 2013 · Comments Off on Three opinions, two grants [Jun. 7, 2013]
With this week’s orders list, the Texas Supreme Court issued opinions in three cases, one of which was a per curiam opinion. The Court also chose two cases for oral argument this October.
Opinions
What is the effect of a remand for a new judgment to be entered?
If this case name looks familiar, it may be because you’re remembering its earlier visit to the Texas Supreme Court as Benny P. Phillips, M.D. v. Dale Bramlett, individually and as Independent Administrator of the Estate of Vicki Bramlett, Deceased..., No. 07-0522
.
In that case, the Court remanded for entry of a new judgment with a lower damages figure. The trial court did so, but its award calculated post-judgment interest from the new judgment date on remand rather than the original judgment date. The Bramletts filed an appeal (to the court of appeals) and a mandamus (directly to the Texas Supreme Court). The Texas Supreme Court declined the mandamus while the appeal continued.
The court of appeals disagreed with the trial court, concluding that interest should have been calculated based on the original judgment.
Then Phillips filed a petition for review. With today’s decision, the Texas Supreme Court holds that interest should have been computed based on the original judgment:
For purposes of the present case, we need not (and do not) decide whether postjudgment
interest runs from the date of the original judgment in every remanded case, or particularly in cases in which the trial court is required to conduct a new trial or other evidentiary proceeding before entering the remand judgment. Here, we remanded the case for the trial court to enter judgment in accordance with our opinion, and the trial court was not required to admit or consider any additional evidence before entering its remand judgment.
[Thus,] the date the
trial court entered the original judgment is the “date the judgment is rendered,” and postjudgment
interest began to accrue and must be calculated as of that date.
Also interesting to appellate lawyers is the Court’s extensive discussion of the effect of a remand on a lower court’s power. The Court makes clear that the mandate did not limit the trial court’s formal “jurisdiction”, but it did limit its “authority” to make certain decision. In other words, it narrowed the range of options the trial court could take without committing reversible error.
Because the trial court’s mistake was not jurisdictional in nature, the court of appeals had power to review whether this second judgment computed interest correctly, and (in turn) the Texas Supreme Court had authority to affirm that aspect of its decision.
Does the “sale for resale” tax exemption apply to the fulfillment of government contracts?
I suppose this is one way to (ever so slightly) bring down the cost of federal health programs. The opinion issued in these two consolidated cases holds that the Texas subcontractors of those federal health services are largely exempt from paying sales tax on goods and services that they use fulfilling that contract.
Texas has an exemption for sales tax for items that a business purchases for resale, on the logic that the eventual purchaser will pay sales tax on the whole price (including those component costs).
The twist here is that the ultimate “purchaser” in the chain is the federal government, administering some health-care programs. Needless to say, the federal government does not pay sales tax to the state — so the services being provided are non-taxable services.
In 1975, the Texas Supreme Court held that similar items purchased to fulfill a federal contract for ammunition were exempt from sales tax because of a provision that formal title to the goods transferred on purchase. Day & Zimmerman v. Calvert, 519 S.W.2d 106 (Tex. 1975). The Comptroller argued that Day & Zimmerman was distinguishable (as being about goods, not services) and that it no longer applied due to changes to the tax statutes.
The Court concluded that none of these changes spoke specifically enough to this unusual situation to “abrogate” the Court’s earlier Day & Zimmerman opinion. Accordingly, until the statutes are changed more explicitly, the firms are entitled to sales tax refunds.
The broad workers compensation bar can apply to government “employees” hired through a contractor
This case is an application of Port Elevator-Brownsville, L.L.C. v. Rogelio Casados and Rafaela Casados, individually and as Representatives of the Estate of Their Son, Rafael Casados, No. 10-0523
, which held that the bar against lawsuits created by a firm’s Workers Compensation enrollment applied to a firm’s temporary workers — even if the firm had not paid for them to have that coverage.
The wrinkle here is that the third-party employee worked for a government contractor, who in turn billed his hours to the city. In the court of appeals, the dispute was whether he was covered by the specific terms of the workers compensation coverage obtained by the city.
Applying Casados, the Supreme Court says that was the wrong question. Instead of coverage breadth, what matters is whether the plaintiff was an employee — “the undisputed evidence does establish as a matter of law that the City controlled the details of Johnson’s work and, thus, that Johnson was its employee.” As such, he falls within the reach of the Workers Compensation Act provision and his only recourse was through workers compensation, not through a separate tort suit.
Grants
Good-faith belief of the Whistleblower Act
Before being granted, this had been the longest-pending case at the merits-briefing stage, with its reply brief on the merits filed in March 2011.
The issues involve some fine-grained parsing of the Whistleblower Act, involving whether a complaint made to a supervisor of alleged fraud qualified as a report to an appropriate law-enforcement authority about a violation of law.
Because the general subject matter overlaps with some other recent cases about the Whistleblower Act, the long time this petition was pending might have been a “hold” (to see if those other cases resolved the issue) that turned into a failed attempt at a per curiam. Whatever the reason, four Justices eventually decided the issues warranted oral argument.
Beachfront takings
This is another case about whether the Texas General Land Office has taken land along a beachfront without compensation by moving the line at which the public has an easement for access. I can’t adequately summarize the details here, so if you’re interested, you should take a look at the briefs.
I’ll note two things:
Tags: Order Lists
June 6th, 2013 · Comments Off on Catching up on orders: Harmless error in a juvenile justice case
The May 24 orders and May 31 orders were fairly quiet, with now grants and just one opinion issued. The opinion was in In the Matter of L.D.C., a child, No. 12-0032
, a juvenile-justice case that actually might have some application to normal civil litigation.
Harmless error in a jury charges that lumps together factual theories that should have been separate
The crime here was firing an AK-47. The defendant in this case and a friend were part of a “street party” near a middle school. The defendant admitted he fired a few shots “in the air.” That sound attracted the police, at which point the story is more confused:
[A police office] heard the shots and drove up as L.D.C. and a friend, T.J., were running through a field behind the school. When [the officer] yelled “police” and ordered them to stop, one of the two turned and fired toward him and the row of houses behind him. [The officer] and T.J. testified it was L.D.C.; L.D.C. testified it was T.J.
The jury charge in L.D.C.’s case was written disjunctively, in a way that would have allowed a conviction even if the twelve jurors disagreed about whether L.D.C. had pulled the trigger in the second incident, the first, or both.
The Texas Supreme Court ultimately held that this was harmless error because it would have taken an “irrational” juror to disbelieve both L.D.C.’s admission that he fired the first set of shots at the street party and his denial that he fired at the officer (emphasizing those words below):
For the jury to have agreed that L.D.C. engaged in deadly conduct either during the party or in the field, but not to have agreed that it occurred at one place or both, at least one juror would have had to: disbelieve both L.D.C.’s denial that he shot in the field and his admission that he shot during the party; or believe that he shot at either vehicles or habitations, but not both; or believe that L.D.C. consciously disregarded the possible presence of occupants in either the surrounding vehicles or the surrounding habitations, but not both; or have been irrational.
Applying the normal civil standard for harmless error, the Court held “we will not base reversible error on the possibility that a juror might act irrationally, which a correct instruction cannot prevent.”
Tags: Order Lists
May 20th, 2013 · Comments Off on Attorney fee awards need not be bonded for appeal; scope of defamation per se; liability for a spouse’s debts [May 17, 2013]
The Texas Supreme Court released four opinions with this week’s orders list.
Among other orders, the Court rescheduled its upcoming oral argument in In re K.M.L., a child, No. 12-0728
from June 3rd to June 24th.
Opinions
A supersedeas bond can ignore attorneys fees awarded in the judgment
A party who loses a money judgment is allowed to post a supersedeas bond to suspend enforcement of the judgment (collections activity) pending appeal. The statute prescribes that certain damage elements must be included (including compensatory damages) and some need not be included (including exemplary damages). But it does not explicitly place attorneys fees, which can be substantial relative to smaller judgments, into either category. This question had divided the intermediate courts of appeals.
With this decision, the Texas Supreme Court holds that a supersedeas bond need not include the amount of attorneys fees awarded on a judgment.
Texas adopts a narrower view of defamation per se
A doctor argued that a written accusation that he had a “reputation for a lack of veracity” and “deals in half truths,” circulated among some of his peers, caused him professional harm. The trial court awarded him $90,000 for actual damages and $85,000 for exemplary damages.
The Texas Supreme Court today reverses that damage award. First, it concludes that the statement at issue did not constitute defamation per se. Noting that the Court had not addressed defamation per se since the 1940s, the Court chose to clarify Texas law by adopting certain parts of the subsequently issued Restatement (Second) of Torts. The opinion quotes extensively from some of the comments and examples in the Restatement, which aim to delineate what statements affecting one’s profession might constitute defamation per se.
The Court found the type of statement at issue here — about a “reputation for a lack of veracity” — easy to classify under the Restatement. In a passage quoted by the Court, the commentary notes that dishonesty in billing (something related to his professionalism) is actionable but “an imputation of dishonesty in other respects” is not.
Having concluded that the statement was not defamatory per se, the Court then examined the damages evidence without the benefit of any presumption in its favor. (( That presumption is what was at stake: Did the jury need specific evidence, or could the jury presume at least some general harm from the “defamatory per se” nature of the statement? ))
Walking through the evidence, the Court concluded that no evidence demonstrated harm to the plaintiff, either in terms of mental anguish or loss of professional reputation. Accordingly, the Court reversed the actual damages and the exemplary damages.
When creditors can seek to recover debts owed by a (former) spouse
The specific dispute was whether one spouse in a divorce proceeding can be directly sued by their former spouse’s law firm over legal fees. The Court held that, under the governing statute, legal fees are not “necessities” that would create this type of direct claim by a third party against the spouse who did not incur them.
Along the way, the Court dealt with some interesting procedural issues likely to affect cases beyond the divorce context. Those include:
- A discussion of when intervention is proper (hint: it wasn’t proper here), and the requirement that a ruling be obtained on the issue in the trial court (no motion to strike was filed here).
-
How the rule about suits on sworn accounts (Texas Rule of Civil Procedure 185) applies to situations where the debt is that of a third-party, such as a spouse (or, presumably, someone whose debt is otherwise guaranteed).
-
A clarification of the distinction between mere “community debt” and more conventional debts that create joint liability between two spouses.
Clarifying an earlier decision about Medicaid reimbursements
In El Paso Hospital District d/b/a R.E. Thomason General Hospital District, et al. v. Texas Health and Human Services Commission and Don Gilbert, Commissioner, No. 05-0372
, the Court held that an administrative rule the state had adopted to govern certain Medicaid reimbursements was invalid.
After the case was remanded, the hospitals argued that the Court’s decision laid a foundation to reopen previous administrative cases in which they had been paid the lower rate. The district court agreed. The court of appeals reversed, concluding that the Texas Supreme Court’s decision did not provide a basis for the hospitals to circumvent the normal error-correcting procedures available under administrative law.
The Texas Supreme Court granted review to clarify the scope of its earlier decision. It chose to affirm the court of appeals, explaining that:
We did not decide whether the hospitals could reopen past agency proceedings or obtain relief for past years. Nor did we expressly order the agency to recalculate these hospitals’ rates, although that relief was available to the hospitals under the agency’s error-correction rules. We accordingly agree with the court of appeals’ interpretation and application of our judgment in the previous appeal, and its judgment is therefore affirmed.
Tags: Order Lists
May 10th, 2013 · Comments Off on Catching up on orders: A beneficiary of a trust can be forced to arbitrate; parental rights case set for June argument
With the May 3 orders list, the Texas Supreme Court issued one opinion and chose one new case for oral argument on June 3, 2013. The case set for argument is In re K.M.L., a child, No. 12-0728
, the second parental-rights case that the Court has granted this spring for expedited argument.
The Court also announced its first two argument sittings for the fall, which will begin on Tuesday September 9, 2013 and Tuesday October 8, 2013. The October sitting still has some argument slots open, for the next round of petition grants.
The May 10 orders list did not include any opinions or grants.
Arbitration against a trust beneficiary
A written trust contained a broad arbitration clause. One of the trust’s beneficiaries, who had not personally signed the trust itself, sued the trustee for misconduct. The trustee sought to invoke the arbitration clause against the (non-signatory) beneficiary.
The court of appeals concluded that this clause could not be enforced because it was not part of “an agreement” between the trustee and the beneficiary.
The Texas Supreme Court disagreed. The Court rejected the argument that trusts do not qualify as “agreements” under the Texas Arbitration Act. Unlike traditional contracts negotiated between two parties, they are created by one party (the settlor) for the benefit of others (beneficiaries). But the Court noted other cases where Texas law enforced an arbitration clause against a non-signatory through the doctrine of “direct benefits estoppel,” which holds that a person who seeks to enforce a contract has assented to its arbitration clause as well. The Court was unpersuaded that the unilateral nature of a trust made it less of an “agreement” for purposes of the Texas Arbitration Act.
Looking at the particular claims here, the Court concluded that the beneficiary had framed his claims in terms of enforcing the terms of the trust. For that reason, bringing this lawsuit “constituted the assent required to form an enforceable agreement to arbitrate under the [Texas Arbitration Act].”
Parental termination: affidavits of voluntary relinquishment and what right a non-custodial father has to notice or to counsel
This set of petitions (filed by the mother, father, and grandmother) raise a number of issues related to parental termination, including:
An expedited oral argument date has been set for Monday June 3, 2013. This is the only case on the argument calendar between now and September.
Tags: Order Lists
April 26th, 2013 · Comments Off on No opinions or grants this week [Apr. 26, 2013]
The Texas Supreme Court did not issue any opinions or choose any new cases for review with this week’s orders list.
The Court’s calendar shows a two-day private conference of the Justices next Monday and Tuesday. Most results of that conference will be released with next Friday’s orders list.
Tags: Order Lists
April 19th, 2013 · Comments Off on Two opinions: Texas Hospitals lose a round against HMOs; evidence needed to show back child support [Apr. 19, 2013]
The Texas Supreme Court issued two opinions with today’s orders list. It chose four new did not select any new cases for oral argument. (( My mistake. By the time I wrote this post on Friday afternoon, my eyes just didn’t focus correctly on the screen. A separate post will describe the new cases. ))
The Court will hear oral argument next Tuesday in In re E.C.R., a child, No. 12-0744
. This is the only case that was given an April argument date, due to the time-sensitive subject matter. Other cases in which review has been granted are waiting for argument dates in the fall.
Opinions
Texas’s Prompt Pay law does not protect hospitals in disputes against HMO network providers
The medical services that led to this payment dispute were accumulated beginning in the 1990s. At that time, Aetna delegated its HMO care through a third party (called “Management Services” in the opinion) that, in turn, entered contracts with each of these hospitals. Management Services hit financial troubles in 2000 and was, shortly thereafter, removed from Aetna’s system.
Ultimately, the hospitals billed $13 million that the middleman refused to pay. They then brought suit directly against Aetna under Texas’s prompt-pay law that applies to insurers.
With today’s opinion by Justice Willett, the Supreme Court holds that the statute does not apply here because there was no direct contractual privity between Aetna and the hospitals for this care. The Court’s reasoning was based on the text, as well as a subsequent amendment to the statute. The Court rejected the hospitals’ argument that the statute applied to the whole web of agreements involved in HMO care rather than requiring direct privity between two parties. The Court pointed to statutory language that payment amounts should be “in accordance with the contract between the physician or provider and the health maintenance organization.” Because there was no direct “contract between” these litigating parties, the Court held, the statute did not apply.
More interesting to appellate advocates may be the Court’s reliance on the subsequent history of the statute as an interpretative aid about what a prior Legislature had meant:
… a 2001 amendment to the Prompt Pay Statute, though inapplicable here, is instructive, and underscores Aetna’s nonliability for its delegated network’s failure to pay the Hospitals. Specifically, the Legislature in 2001 gave the Insurance Commissioner the discretionary authority to compel an HMO to “reassum[e] the functions delegated to the delegated entity, including claims payments for services previously rendered to enrollees of the health maintenance organization . . . .” Tellingly, the 2001 change provides administrative relief in situations like this, but it nowhere grants providers a private action against HMOs. It authorizes administrative intervention but not private litigation. As the Legislature is presumed to know its previous enactments, we read statutes not in a vacuum but contextually, and the implication of this 2001 amendment is significant: There would be no need for the Legislature to impose such a duty on HMOs (notably, one triggered solely by discretionary administrative action) if the pre-2001 statute already imposed that duty (actionable by private lawsuit).
The lesson for advocates is that sometimes even a Justice with no love for legislative history arguments can be moved by one. And the lesson for lobbyists is that your success in lobbying today — like reaching a compromise that could get hospitals paid in the most egregious cases with no litigation expenses — might inadvertently be creating “instructive” evidence that cuts against your clients in the future.
Reasoning from the “subsequent history” of a law is tricky because it’s guessing not what the Legislature was voting for, but what it was voting against. Commonly, people argue that a subsequent amendment confirms what an ambiguous law meant before. In that case, the Legislature is rejecting the ambiguity.
Here, the opinion reasons that by adding an administrative remedy in 2001, the Legislature confirmed that there had been no private claim before. This presumes that the Legislature’s goal was to expand relief to hospitals through this administrative process, rather than limiting litigation costs (another common legislative goal). That may be so, based on this legislative history. But it is analytically a question of legislative history and purpose — one that lobbyists and legislators should be attentive to when explaining the purpose behind these amendments. (( Of course, not all people voting for a legislative amendment may share the same prior understanding of the law, and they may not share the same understanding as the prior Legislature that actually enacted that earlier law. But this canon of construction presumes that despite those two imperfections in the lens, the picture formed is still clear enough to tell the court something useful about the prior intent. ))
A no-evidence case about child support
When is a trial court’s award of back child support so low that there is “no evidence” to support it?
In Office of the Attorney General v. Burton, 369 S.W.3d 173 (Tex. 2012) (per curiam), the Court held that a zero-dollar award was impermissible when the record contained admissions from the father that he was at least somewhat behind on payments. As a threshold matter, the Supreme Court held that the award should be evaluated under the Court’s usual rules for no-evidence review. In Burton, that meant that the issue could be raised for the first time on appeal.
Fast forward to today. In Vilma Granado v. Pedro C. Meza, No. 11-0976
, the Supreme Court held that there was “no evidence to support the trial court’s specific finding of $500 in arrearages.”
Like Burton, this case also involved an incomplete record. In Burton, the record was missing certain Social Security information that the trial court determined was necessary to compute a precise number. Here, the record was missing some Office of the Attorney General child-support records that had (due to an office error) been frozen when the child was only six and the total obligation had still been below $500.
As the Supreme Court relates, the father here “admitted his total obligation was $11,200” and had paid some unspecified amount. The Court said that although the OAG records reflected a total unpaid amount of $500 when the child was 6, that total was “no evidence” of the total obligation when the child turned 18. (( Rather than talking about this as the weight of the evidence, the Court viewed it through the lens of legal relevance and fault: “the OAG clerical error cannot serve as a basis for modifying the child-support obligation [and] is no evidence supporting the trial court’s determination.” In other words, if the OAG’s document purports to describe the obligation accrued during the wrong period of time, it cannot stand alone as sufficient proof for the right period of time. )) The Court therefore reversed and remanded to the trial court for further proceedings.
Tags: Order Lists
