With today’s orders list, the Texas Supreme Court issued a per curiam opinion explaining its March 28th order in the Palomo elections case.

In re Rebecca Ramirez Palomo, No. 12-0208 (per curiam)

On March 28th, the Texas Supreme Court ordered that a judicial candidate (Rebecca Ramirez Palomo) be returned to the primary ballot. I wrote a short post about the order, which was accompanied by the notation “Opinion to follow.”

Today, the Court is issuing that opinion (PDF). (( You may be wondering, “When does the clock start for rehearing? Do you have to file a motion for rehearing before you know the Court’s reasoning?” According to Rule 64.1, the clock starts “when the Court renders judgment,” so that would be March 28th. The docket shows that the real party in interest filed a motion to extend time within the time permitted, and the Court had granted that motion before issuing this opinion. ))

This case grows out of a judicial election in Webb County. One of the candidates for a district court seat, Fernando Sanchez, objected to the eligibility of his opponent, Rebecca Ramirez Palomo, arguing that she had not (as required) been a practicing lawyer for the four years preceding the November 2012 election date. Sanchez noted that Palomo had briefly claimed an exemption from mandatory continuing legal education (MCLE) requirements. The local county party chair refused to remove Palomo from the ballot.

Sanchez sought a writ of mandamus in the court of appeals. The court of appeals granted that relief, ordering the party official to remove Palomo’s name from the ballot. The heart of the court of appeals’s reasoning was that Palomo was ineligible to practice until the time that she actually notified the state bar that she intended to reassume her MCLE responsibilities. Because that notice was sent within the four-year window, the court concluded that the public records conclusively established that she was not eligible.

The Texas Supreme Court disagreed about whether this notice to the bar should be given dispositive weight. The Court explained that attorneys report their MCLE status only at the end of the relevant year. Before that time, they can change their mind about whether or not they intend to do the hours: “A lawyer might claim the non-practicing exemption early in the compliance year, fully intending not to practice, yet change her mind before the compliance deadline, withdraw the claim, and complete all MCLE requirements for the year. Or a lawyer can wait until the compliance deadline — or perhaps even later — to claim an exemption from MCLE for the preceding year. All that matters is whether the lawyer is entitled to an exemption from MCLE requirements by the deadline for completion.”

Thus, unlike other types of “inactive” status, an attorney does not need to formally notify the bar in advance to resume active status after an MCLE exemption. For that reason, the Court held, the date on Palomo’s letter to the bar does not control this question.

Instead, the Court reviewed the other public records and concluded that they did not meet the heavy burden of “conclusively” showing that Palomo was ineligible during the four years preceding the general election in November 2012. The Court explained that Palomo probably did not intend to claim an exemption for the year ending October 2009 at all (“a year in which she actually met her MCLE requirements”) but instead for the previous year ending October 2008, which would not affect her eligibility for this election. (( Palomo’s birthdate falls in November, so her compliance year ends on October 31. ))

With Friday’s orders list, the Texas Supreme Court issued six opinions, granted one new petition to be argued this fall, and denied rehearing of a high-profile case about public pensions.

The longest-pending case

Among Friday’s opinions was Bison Building Materials, which has been the longest-pending case on the Court’s docket. (( It was very briefly classified as “abated” last summer, so it might not have been included in internal reports about long-pending cases. It was noted here, however. ))

I wrote in February about the Court’s pattern of opinion releases. At that time, the Court only had three argued cases held over from a previous term — Bison Building Materials, Severance v. Patterson, and Edwards Aquifer v. Day. Now, there are none.

Bison Building Materials, Ltd. v. Lloyd K. Aldridge, No.06-1084

In a 6-3 decision, the Court held that a trial court’s order about an arbitration was not appealable or a proper subject for mandamus relief. The majority opinion was written by Justice Wainwright, who explained that the trial court’s order had left open some factual issues for later determination and thus was not a final judgment under Texas procedure.

What was trickier in the case, and what led to the split between majority and dissent, was the question of how the Federal Arbitration Act (FAA) would be applied in similar circumstances by federal courts. This was not technically a controlling question in the case. (( Because Bison Building had been pending so long, it fell before the effective date of a 2009 Texas statute that would have vested Texas courts with interlocutory appellate jurisdiction whenever a federal court would have the same. )) But both the majority and dissent looked to federal precedent to see if there might be a persuasive reason for the Court to use its more flexible mandamus jurisdiction as a kind of gap-filler here.

The dissent (by Justice Hecht) cited several cases it saw as on-point, but the majority (by Justice Wainwright) disagreed about whether those cases spoke to this precise question (a partial disposition by the trial court, with some issues reserved). Because a majority of the Court did not want to exercise its mandamus authority, the Court ultimately affirmed the decision below dismissing the appeal for want of jurisdiction.

Sabine Pilot claims are tort claims that can, theoretically, support punitive damages

In Safeshred, Inc. v. Louis Martinez, III, No. 10-0426 (Lehrmann, J.), the Court answered a lingering question about whether a Sabine Pilot wrongful termination case — when an employee is fired for refusing to do an illegal act — sounds in tort and thus can support punitive damages. It does, and it can.

But the Court found that the specific evidence here was legally insufficient to support a punitive damages award. The Court held that the “malice” to support punitive damages must be something related to the firing or its aftermath — not the nature of the illegal act that the employee refused to do.

Damages for improper construction in a build-to-suit project

In Ashford Partners, Ltd. v. Eco Resources, Inc., No. 10-0615 (Medina, J.), the Court was faced with a dispute over a commercial build-to-suit lease, where the nominal tenant had arranged for the construction of the building.

Sometime after the lease began, some building defects were discovered. The tenant sued, arguing that it should be compensated for the diminished value of its property interest in the leasehold.

The Court, instead, characterized this as a construction dispute. Because this project was “substantially complete,” the only proper measure of damages for defects was their reasonable repair cost. Here, the landlord (eventually) fixed the damages at no cost to the tenant. Accordingly, the Court concluded that there was no evidence of the right measure of damages.

There is no requirement that an affidavit contain a “jurat,” and defects are waived if not raised in the trial court

The Mansions in the Forest, L.P. v. Montgomery County, No. 10-0969 (per curiam)

There are two holdings in this case that should interest any Texas lawyer who deals with affidavits. The substantive holding is that the Government Code does not require a formal “jurat” in order to be valid.

What’s a jurat? It’s this part of an affidavit:

While making this holding, the Court expressly disapproved of prior cases from at least eight of Texas’s courts of appeals (listed on pages 6-7 of the PDF).

Although the Court does not require that a jurat be included in the affidavit, the substance of what is normally sworn to in the jurat must still be true. If a jurat is not included, the Court explained, “other evidence must show that it was sworn to before an authorized officer…” No objection was made here.

The Court’s second holding, however, was that this deficiency was waived. The Court held that this type of defect would require an objection in the trial court: “When a purported affidavit lacks a jurat and a litigant fails to provide extrinsic evidence to show that it was sworn to before an authorized officer, the opposing party must object to this error, thereby giving the litigant a chance to correct the error.” There was no objection here.

Three other opinions

• Dr. Edwin Cruz v. Andrews Restoration, Inc. d/b/a Protech Services and Rudy Martinez v. Chubb Lloyds Insurance Co., No. 10-0995 (Jefferson, C.J.). This case has some interesting holdings about the remedy of restoration (which requires that the party also return whatever benefit they received), about preserving error in a jury charge (it might be harder than you thought), and even the “main purpose” doctrine in indemnity law. It’s worth more than a bullet point.

• Maria Ester Salinas v. Norberto Salinas, No. 11-0131 (per curium). The core issue in this case is about damages for defamation per se. (( This case also led to an unusual docket notation: “motion to grant review, reverse and vacate per curiam due to respondent’s failure to file any response, denied.” ))

• Commission for Lawyer Discipline v. Heather Schaefer, No. 10-0609 (on reh’g) (per curium). On rehearing, the Court held that a quorum of a state bar disciplinary body committed an error when it proceeded despite a vacant seat — but that this was a non-jurisdictional defect that was waived if not objected to promptly.

Rehearing denied in the “billion dollar” civil-service case

City of Dallas v. David S. Martin and George G. Parker, et al.,
No. 07-0288 asked when city employees who have civil-service contracts for their benefits or salary (such as, in this case, firefighters) can later sue for violations of those contracts.

In December 2011, the Court upheld the City’s immunity from these claims. On Friday, the Court denied the employees’ motion for rehearing.

Petition Granted

Nelda Gonzales v. Southwest Olshan Foundation Repair Co., No. 11-0311 [argument date to be determined]. The question is how a common-law implied warranty interacts with the DTPA (particularly with the statute of limitations).

The Texas Supreme Court issued a quiet orders list this morning, with no opinions and no new cases chosen for argument.

Meanwhile, the Supreme Court Advisory Committee is tackling the controversial question whether to provide court-approved forms for litigants who represent themselves in divorce cases. Angela Morris of Texas Lawyer has been live-tweeting the meeting. It’s the rare rules issue that draws in the general public:

Earlier today, #SCAC chair Chip Babcock says it’s first meeting with attendance by lobbyist, & TV cameraman. “We have hit the big time.”

— Angela Morris (@AMorrisReports) April 13, 2012

Added: Jason Wilson has gathered today’s stream of tweets about the meeting onto a Storify page. He has added some commentary, too. The title is “The Death of Common Sense”.

There’s other press coverage (and links to some background articles) at the Texas Tribune.

The Texas Supreme Court released a quiet orders list today, with no opinions or new cases chosen for review.

The next scheduled conference of the Justices begins on April 16.

From the title of this post, you can tell there was quite a bit of activity on today’s orders list.

Due to my own poor planning (mental note: do not ask for extensions of time that end on the Friday after a SCOTX conference), I can’t run through all the details today.

The headliner will be the Court’s (final) resolution of the Severance v. Patterson Open Beaches Act case. After granting rehearing, and after a detour to the Fifth Circuit to address mootness and back, the Court has adhered to its original holding that public easements do not “roll” onto private beachfront land. The Court issued a new round of opinions (five in total, spread among the eight Justices sitting on the case).

The most unusual disposition was in Ganim v. Alattar, No. 10-0592, a case about the statute of frauds. I wrote before about the Court’s grant of rehearing, and in particular an amicus brief suggesting that the issue in Ganim might be problematic for the Court’s resolution of pending cases about the Episcopal Church. The Court must have agreed that the underlying problem in Ganim, which had originally been decided without oral argument as a per curium, was more complex than it had recognized. Today, the Court withdrew its opinion in Ganim and simply dismissed the petition as having been improvidently granted. (You can read the withdrawn opinion here.)

The Court also issued opinions in three other cases and chose six new cases for oral argument this fall.

Until I can post more about them, I’ll refer you to the very helpful summaries that the Court’s public-information officer, Osler McCarthy, has emailed out today (which you can see here).

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

The Court did issue two preliminary orders related to the El Paso mayor-recall case Tom Brown Ministries v. John F. Cook, No. 12-0193. (previous blog post) After challengers obtained enough signatures to force a recall election, the El Paso Court held that some of the signatures had been gathered in violation of Texas campaign-finance law and that the scheduled recall election should not be held. Today, the Texas Supreme Court denied a request to temporarily “stay” the judgment of the court of appeals (which would have had the effect of re-instituting the recall election). The Court also denied what the docket sheet describes as “respondent’s request for damages.” (( I am guessing that the Respondent (the mayor) included a request for sanctions or other damages in his response to the stay request. The electronic version of his brief is not online. )) The Court has not yet decided the merits of the petition, which remains pending.

With today’s orders list, the Texas Supreme Court requested the views of the Texas Solicitor General in a case about the constitutionality of a Texas law about parental termination.

The Court did not issue any opinions or select new cases for oral argument.

Six-Month Cutoff To Challenge Parental Termination

The Court has invited the Texas Solicitor General to offer views about the merits of In re E.R., No. 11-0282.

The dispute is about a Texas statute that cuts off challenges to a parental-termination order six months after the order is signed — even if the parent was notified only by publication rather than by personal service.

Texas Family Code §161.211(b) provides:

(b) . . . the validity of an order terminating the parental rights of a person who is served by citation by publication is not subject to collateral or direct attack after the sixth month after the date the order was signed.

This challenge was brought by the parent whose rights were terminated. Approximately two years after an order of termination, the parent filed a motion for new trial. The trial court denied the motion. The court of appeals affirmed, concluding that the statute barred any challenge after six months.

In the Texas Supreme Court, the parent argues that the way the court of appeals applied the statute renders it unconstitutional.

The Court heard oral arguments on February 28, 2012.

As it turns out, the only other “CVSG” (call for the views of the solicitor general) on the Texas Supreme Court’s active docket was also argued this same day. That case is In re Stephanie Lee, No. 11-0732, which also involved family-law issues. The issue is when a trial court can look beyond the parties’ mediated-settlement agreement if it disagrees about the best interests of the child.

With Friday’s orders list, the Texas Supreme Court issued four decisions, granted two petitions for argument this fall, and granted rehearing of one previously denied petition.

Four Decisions

• Nicholas Traxler v. Entergy Gulf States, Inc., No. 10-0970

  Traxler was injured by a power line that had been installed lower than the 22 feet normally required by Texas statute. Traxler argued that this could show negligence per se, and the trial court agreed. On appeal, Entergy argued that the relevant statute did not apply to “distribution” lines such as this one but instead they were subject only to a federal requirement that they be at least 18.5 feet above the ground. The court of appeals agreed with Entergy and reversed.

  The Texas Supreme Court agreed with Traxler’s reading of the statute rather than Entergy’s. Justice Willett wrote for a unanimous Court, holding that the Legislature did not intend for the 22-foot requirement to distinguish between “transmission” and “distribution” lines at all but has used those terms interchangeably. Accordingly, the Court reversed the court of appeals and remanded back to that court to consider Entergy’s other arguments.

• In re Frank Kent Motor Co. d/b/a Frank Kent Cadillac, No 10-0687.

  In a nutshell: “We conclude that because an employer has the legal right to terminate an at-will employee, a threat to exercise that right cannot amount to coercion that would invalidate a jury waiver agreement.” Justice Lehrmann wrote for a unanimous Court.

• Federal Deposit Insurance Corp. v. Christa C. Lenk, administrator of the estate of John Albert Thompson, No. 08-0908

  There is a rich history to this case, going back to Mel Spillman, a former court clerk who mismanaged enough estate funds to drive a Ferrari. The estate administrator here, Lenk, had sued a number of banks over funds that were dispersed to Spillman.

  Some of those claims made it to the Texas Supreme Court in Jefferson State Bank v. Christa C. Lenk, No. 09-0269. The Court held that a one-year statute of repose barred some of the claims because the administrator had waited almost two years after being appointed before contacting the bank to get the statements showing the fraudulent withdrawals.

  The wrinkle in this case is that the banks had not asserted that defense so as to preserve the argument in the trial court. For that reason, the Jefferson Bank case was not controlling. The question is whether the banks had some other defense to support judgment in their favor.

  A majority of seven justices held that they did not. Justice Guzman’s opinion rejects each of the banks’ arguments in turn. The Court upheld the award in favor of Lenk.

  Justice Hecht, joined by Justice Green, dissented. As the dissent saw the question, Lenk had not properly framed a claim to accrue in 2003 at all. Instead, Lenk pleaded a claim that accrued in 2005 (to avoid limitations) and thus stated a claim that did not exist: “The problem with the claim Lenk asserts is not that it is time-barred; the problem is that … the claim does not exist.”

  Given the disagreement, it is somewhat unusual this was decided under Rule 59.1 without oral argument. (That rule is usually invoked for unanimous per curiam decisions.) At least six Justices voted to dispose of the case without argument.

• Milner v. Milner, No. 10-0776.

  This was a business dispute arising out of a divorce case. The MSA (mediated settlement agreement) had language transferring part of the husband (Jack)’s interest to the wife (Vicki). Vicki argued that the intent was to make her a limited partner in the venture, but the final divorce paperwork did not contain signature lines or any other mechanism to force her entry to the partnership. She withdrew her own consent to the MSA and argued it must be set aside. The trial court disagreed.

  Justice Medina, writing for six Justices, held that the trial court should have set aside the MSA and allowed a new property division.

  Justice Johnson, joined by Justices Green and Willett, dissented. Although the dissenters agreed that the case should be reversed, they would have rendered judgment rather than remanding, on the idea that the MSA language was unambiguous that it did not give her a role in the partnership but instead just a property interest.

Two Grants of Review

These cases will be set for oral argument sometime this fall:

• Texas Department of Transportation and City of Edinburg v. A.P.I. Pipe and Supply, L.L.C. and Paisano Service Co., No. 10-1020. The petition frames the question in terms of the “innocent purchaser” rule allows someone to disregard a properly recorded instrument (a previously final judgment). The wrinkle is that there was an intervening instrument (a nunc pro tunc) that, although void, was also recorded in the county records and may have cast doubt on the status of the property.

• Kopplow Development, Inc. v. The City of San Antonio, No. 11-0104. The city built a water project that affected the use of Kopplow’s property, and after being sued for inverse condemnation, the city decided to sue to condemn the land outright. The petition raises a variety of issues, including how to value the portion of the land taken.

One Rehearing Grant

As it did last week, the Court has granted rehearing of a previously denied petition. The case is Texas Department of Licensing and Regulation v. Carolyn K. McCollum, No. 10-0420. The motion for rehearing argues, in part, that this petition should be held open because it raises the same questions about timing a suit against the government under the TCHRA as Mission Consolidated Independent School District v. Garcia, No. 10-0802, a case recently argued to the Court.

Consistent with that, the Court granted rehearing and restored the petition to its active docket. The case has not been selected for oral argument.