The Court did not issue any opinions with today’s orders list.

Four of the justices are speaking at today’s Practice Before the Texas Supreme Court seminar in Austin. I’m on the menu as a lunch speaker, so please say hello if you are attending.

With today’s orders list, the Texas Supreme Court issued opinions in five cases. It did not choose any new cases for oral argument.

I’ll be writing separate posts about some of today’s bigger cases. For now, here are quick summaries:

• The City of Round Rock, Texas and Round Rock Fire Chief Larry Hodge v. Jaime Rodriguez and Round Rock Fire Fighters Association, No. 10-0666 : Divided 6-3, the Court holds that unionized Texas public-sector workers — unlike federal public-sector workers or unionized private-sector workers — do not have the right to have union representation during an internal investigation.

• Carla Strickland v. Kathryn and Jeremy Medlen, No. 12-0047 : In perhaps the most watched case of the term, the Texas Supreme Court holds that Texas common law does not include a claim for emotional damages for the loss of a pet. The opinion noted that the Legislature could create such a remedy, as some other states have done.

• Texas Department of Transportation and City of Edinburg v. A.P.I. Pipe and Supply, L.L.C. and Paisano Service Company, Inc., No. 10-1020 : The Court resolved a disputed chain of title in favor of the state as landowner. The two relevant links in the title chain were judgments: a 2003 judgment (awarding the state an easement) and a 2004 judgment in the same case (eliminating the state’s interest in favor of a private party). The Court held that later-issued judgment was void because (on this record) it was a substantive change that exceeded the proper bounds of a nunc pro tunc correction of a prior judgment.

• TracFone Wireless, Inc. and Virgin Mobile USA, L.P. v. Commission on State Emergency Communications, No. 11-0473 : The Court examined the Texas statute that imposes a tax to fund the e911 system, concluding that the 1997 version of this statute was not broad enough to reach prepaid wireless plans (which had not yet been introduced in Texas). Accordingly, those prepaid wireless providers could obtain a refund of the taxes still in dispute between that time and the amendment of the statute in 2010.

• Last October, the Texas Supreme Court held in Certified EMS, Inc. d/b/a Cpns Staffing v. Cherie Potts, No. 11-0517 that the expert report filed in a medical-malpractice case only needed to address one valid theory for the plaintiff to move forward: “If a health care liability claim contains one viable liability theory, as evidenced by an expert report meeting the statutory requirements, the claim cannot be frivolous [and the claimant has a] right to have the entire case move forward.” (Page 10 of that slip opinion)

  Today, in TTHR Limited Partnership d/b/a Presbyterian Hospital of Denton v. Claudia Moreno, individually and as next friend of F.C., A Minor, No. 11-0630 , the Court applies that holding. The Court examined the expert report’s sufficiency as to the theory that the hospital was vicariously liable, found that it was sufficient to meet the statute as to that theory, and remanded the case to the trial court for further proceedings.

With this week’s orders, the Texas Supreme Court issued opinions in two cases (including Justice Devine’s first signed opinion), issued a corrected judgment in a previous case, and chose two new cases for oral argument.

This week’s opinions

Takings applied to a future interest in property

EL DORADO LAND COMPANY, L.P. v. CITY OF MCKINNEY, No. 11-0834

Opinion of the Court

A landowner sold a parcel of land to the City of McKinney, with a condition attached: that if the land were used for anything other than a city park, the seller would have the right to repurchase it.

Ten years later, the city placed a public library on the land. The previous owner sued for inverse condemnation, arguing that the government’s action had deprived it of a compensable property interest, namely, the right to repurchase the land.

The court of appeals held that this condition in a deed was in the nature of a contract and, thus, that the city was immune from suit.

The Texas Supreme Court reversed, with Justice Devine writing for a unanimous court. The Court held that the case concerned a property interest rather than a mere contract right and, thus, no immunity attached.

Along the way, the Court rejected several arguments about why this particular flavor of future property interest — a “right of reentry” — should not be compensable in a taking. The Court noted that the most recent Restatement largely “dispenses with the historical parsing of future interests, recognizing only reversions and remainders. It thus abandons distinctions that previously differentiated a possibility of reverter from a right of entry because, in its view, no legal consequences attach to such distinctions.”

When an express warranty supersedes an implied warranty

NELDA GONZALES v. SOUTHWEST OLSHAN FOUNDATION REPAIR COMPANY, LLC, D/B/A OLSHAN FOUNDATION REPAIR COMPANY, No. 11-0311

Opinion of the Court

In a suit over a defective home-foundation repair, the jury found that the repair company had violated the implied warranty but had not violated the express warranty stated in the sales contract.

The court of appeals reversed, concluding that this claim was barred by limitations. In particular, it held that there was no free-standing claim here for “implied warranty” but that, instead, the theory would have to be raised under the DTPA — and thus subject to a two-year statute of limitations.

The Texas Supreme Court granted review, and now affirms (on different grounds). The Court did not, however, ultimately reach the question of whether Texas has a freestanding claim for “implied warranty” or whether it must be brought under the DTPA — an issue “over which courts have differed.” (Footnote 9 on page 5) Instead, the Court chose to first ask whether the express warranty made here superseded the implied warranty. (( The Court had its choice of which sub-issue to address first. Had it started with the question of whether the DTPA controlled, then it might never have needed to reach this question about when express warranties supersede implied warranties. ))

The Court held that the implied warranty “of good and workmanlike repair” applicable here is just a gap filler. (( The Court also held that a general “no evidence” objection at the charge conference was sufficient to preserve this question of whether an implied warranty existed under Texas law. )) As a gap-filler warranty, it cannot be disclaimed, but it can be superseded — the parties can agree to replace the implied warranty with a custom-tailored express warranty.

Looking at the agreements here, the Court found “language [that] ‘sufficiently describes the manner, performance or quality'” of the work to supersede the implied warranty and replace it with an express warranty. Thus, the judgment could not be supported on the basis of an implied-warranty theory, whether brought as a freestanding claim or as a facet of the DTPA. The statutory question of whether implied warranty claims fall within the DTPA will be left for another day.

The more immediate lesson to counsel with warranty claims may be to handle gingerly any evidence suggesting a warranty obligation — even if not part of a signed contract. The Supreme Court did not analyze the loss of implied-warranty claims as a question of waiver; express warranties can attach — and displace the implied warranty — without the plaintiff signing anything.

Here, the trial court viewed this unsigned document as a problem and decided to admit it for a limited purpose — just to show “what in [the defendant’s] opinion the company was supposed to do.” (Discussion at pages 8.) Yet on appeal, the Supreme Court looked to the terms of this document as part of its analysis of whether the express warranty superseded the implied warranty. The Court explained that, even unsigned, the disputed document “could fairly be characterized as an obligation of [the defendant] to [the plaintiff].” Accordingly, the document’s broad language could weigh in favor of the express warranty superseding the implied warranty.

Correction of a judgment that had reversed some unchallenged parts of a trial court’s decision

In Wendell Reeder v. Wood County Energy, LLC; Wood County Oil & Gas, Ltd.; Nelson Operating..., No. 10-0887 , the Court issued a short supplemental opinion explaining that it was modifyings its previous judgment. In August 2012, the Court had reversed and “render[ed] a take-nothing judgment.” As this week’s opinion (PDF) explains, that language was too broad because there were some parts of the trial court’s judgment that had not been challenged in the scope of the appeal. The Supreme Court thus issued a corrected judgment, specifying the issues on which it was reversing the trial court.

Two New Grants

• Gene E. Phillips, individually and d/b/a Phillips Oil Interests, LLC... v. Carlton Energy Group, LLC, No. 12-0255 : The petition argues that damages measured by lost “market value” must be held to the same evidentiary standards as damages for “lost profits.” An amicus letter from the Texas Civil Justice League urges the Court to take the petition to overrule Castleberry v. Branscum, 721 S.W.2d 270 (Tex. 1986), a decision about piercing the corporate veil.

• MAN Engines & Components, Inc. and MAN Nutzfahrzeuge Aktiengesellschaft v. Doug Shows, No. 12-0490 : The petition argues that the implied warranty of merchantability cannot be invoked by subsequent purchasers of (used) goods.

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 public calendar shows a conference of the Justices on Tuesday, March 26th.

With this week’s orders list, the Texas Supreme Court issued one opinion.

What counts as a notice of appeal?

IN THE INTEREST OF J.M. AND Z.M., MINOR CHILDREN, No. 12-0836

Per Curiam

The question before the Court was whether a document filed in the trial court qualified as a “notice of appeal” to trigger appellate jurisdiction before the clock expired.

The wrinkle is that the document claimed to be a combination of a motion for new trial and notice of appeal. Under Texas practice, these are usually separate documents, with the notice of appeal filed after any motion for new trial is disposed.

But the Texas Supreme Court held that this was sufficient because — based on the title of the document and language indicating that the party “wishes to appeal this case” — it was “a bona fide attempt to invoke appellate jurisdiction.”

The Texas Supreme Court did not issue any opinions with today’s orders list.

The Court calendar shows a private conference scheduled for next Monday and Tuesday. The Court’s final scheduled argument sitting for the term will begin on February 26, 2013.

With the first orders list of February, the Texas Supreme Court issued one opinion. It also chose to grant rehearing in two (consolidated) petitions it had previously denied, instead setting them for oral argument later this month.

DIEGO RODRIGUEZ-ESCOBAR, M.D. v. MICHAEL ALLEN GOSS, STEVEN GOSS, AND TIMOTHY LEE GOSS, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF BEVERLY GOSS, No. 10-0511

Per Curiam

This claim was brought by the family of someone who had been evaluated for possible involuntary hospitalization for psychiatric care as a suicide risk. The physician determined that she did not meet the test for involuntary commitment. Three days after her release, she committed suicide. The trial court entered judgment that the doctor had been negligent, awarding $200,000 in damages.

Read more about this and the new case set for argument

The Texas Supreme Court issued opinions in six cases with last Friday’s orders list.

Opinions in Argued Cases

THE STATE OF TEXAS v. NINETY THOUSAND TWO HUNDRED THIRTY-FIVE DOLLARS AND NO CENTS IN UNITED STATES CURRENCY ($90,235) AND 2000 BLACK LINCOLN NAVIGATOR VIN: 5LMPU28A7YLJ10865, No. 11-0642

Opinion of the Court

Although the subject matter of the case is forfeiture of property suspected of being involved in criminal activity, the appeal came down to a question of summary-judgment procedure.

The property’s owner moved for a traditional summary judgment, arguing (in part) that the police officer who seized the property did not have a reasonable basis to believe it had been used in criminal activity. In support of that summary judgment, he offered his own affidavit denying that the officer had a reasonable basis.

The Court held that this was not enough to prevail on summary judgment, where the question was the other person’s state of mind:

[Read more →]