With today’s [orders list](http://www.supreme.courts.state.tx.us/historical/2011/may/052711.htm), the Texas Supreme Court decided four pending cases and chose two new cases for oral argument this fall.

Read summaries of this week’s cases and the two new grants

It was a relatively quiet orders list today, with just a handful of petition denials.

According to the Court’s calendar, the Justices are scheduled to have a private conference next Monday.

With today’s orders list, the Texas Supreme Court decided four cases and granted one new case for argument this fall.

Today’s decisions

• Nafta Traders, Inc. v. Margaret A. Quinn, No. 08-0613 (DB). The opinion for a unanimous Court was delivered by Justice Hecht. Chief Justice Jefferson wrote a concurrence. You can read more in the next post…

• BP America Production Co., et al. v. Stanley G. Marshall, Jr., et al., No. 09-0399 (Lehrmann, J.) (DB). The allegations were that BP had fraudulently concealed its development of certain mineral interests from the rightful owners, thus extending the time in which a suit could be filed. The wrinkle here is that the facts of the drilling operations were disclosed in public filings. The Court concluded that (1) the facts could have been discovered by reasonable diligence on the part of the owners, and (2) that the doctrine of fraudulent concealment could not be used to extend the statute of limitations if the party being defrauded should reasonably have discovered the fraud.

• Genesis Tax Loan Services, Inc. and Suzanne Frossard, Trustee v. Kody and Janet Kothmann and Kody Kothmann, Trustee, No. 09-0828 (Hecht, J.) (DB). This was a challenge to the validity of a tax lien that had been transferred. The Court rejected the technical objections to its validity (among others: a photocopy had been filed rather than the original and the stamp was from a notary rather than the tax official). Interpreting these requirements too strictly, the Court concluded, might actually undermine the goals of the filing system. The Court also gave some guidance to future litigants in lien disputes: Don’t just prove up your own lien and rest. Instead, you have to show that the competing liens are junior. (( From Part II: “[A] plaintiff must do more to prevail than simply offer evidence of the date of its own lien and rest. The plaintiff must also prove that the defendant’s competing lien is junior. The general denial of the plaintiff’s claim puts the entire matter at issue. Pleading an affirmative defense is required to raise a matter of avoidance, “an independent reason why the plaintiff should not recover.” The defense that a plaintiff’s lien is not superior as alleged is not an independent reason to deny recovery; it goes to the heart of the plaintiff’s case.” ))

• Harris Methodist Fort Worth v. Jo Fawn Ollie, No. 09-0025 (per curiam) (DB). Does a patient’s claim that they slipped on a wet floor fall within the Texas medical-malpractice statute? Yes, it does.

Today’s new grant

• Atmos Energy Corporation, Centerpoint Energy Resources Corp. and Texas Gas Service Co. v. The Cities of Allen, et al., No. 10-0375 (DB). The core issue in the petitions filed by these gas utilities is whether the Railroad Commission has jurisdiction to review a municipality’s decision to reject a rate schedule filed by a gas utility. The cities filed a petition that agrees in part (( See page 4 of the cities’ petition. )) — although they believe that the Commission should have given the city’s complaints a more complete hearing.

Friday’s theme, once again, was contractual ways to avoid litigation. But the featured special is an “appraisal clause” in an insurance contract, which lets either party demand a third-party process to fix the amount of property damage. As the Texas Supreme Court’s opinion notes, it has only dealt with these appraisal clauses a handful of times.

This weekly orders list did not contain any new grants of review.

Appraisal clauses in insurance contracts

In re Universal Underwriters of Texas Insurance Co., No. 10-0238 (Jefferson, J.) (DB).

The question before the Court was: “When has a party to an insurance contract waived its rights under an appraisal clause?”

The answer, it turns out, is “almost never.”

In this case, the two sides disagreed for several months, leading to a lawsuit being filed by the insured. Only then did the insurer try to invoke the appraisal clause. The trial court held that the insurer’s delay had waived these contractual appraisal rights.

Read more about appraisal and the employment-arbitration stay

With today’s orders list, the Texas Supreme Court issued decisions in three cases:

• Travis Central Appraisal District v. Diane Lee Norman, No. 09-0100 (Medina, J.) (DDB). Much of the Court’s analysis focused on its 1995 decision in City of LaPorte v. Barfield, 898 S.W.3d 288 (Tex. 1995), which held that the Legislature had waived governmental immunity for “retaliatory discharge” claims brought by government employees. The Court noted that the statutes on which Barfield was based had, in the intervening 15 years, been amended by the Legislature. Analyzing the new version of the statutes, the Court concluded that its reasoning in Barfield could not be squared with this new language. Applying the principle that waivers of immunity must be unambiguous (and citing yet another statute added well after Barfield), the Court concluded that there was no longer any valid waiver of immunity and the retaliatory-discharge claim should be dismissed.

• Terri Loftin v. Janice Lee and Bob Lee, No. 09-0313 (Hecht, J.) (DDB). In this case under the Texas Equine Activity Act, the Court concluded that a horse owner was shielded from liability for an accident in which a novice rider’s horse panicked on a muddy, vine-laden trail. The Court rejected an argument that the owner’s alleged negligence in choosing which trail to ride was not “inherent” (the word used in the statute) to equine activity.

• Larry Roccaforte v. Jefferson County, No. 09-0326 (DDB). The Court concluded that a county that had actual notice of a pending lawsuit could not later seek dismissal because that notice had not also been delivered by certified mail. Justice Jefferson wrote the majority opinion. Justice Willett wrote an opinion concurring in part, which would have enforced the strict requirement that a certain type of mail be used.

In other notable orders:

• Denial of rehearing: The Court denied rehearing in the Robinson asbestos case. (My post about the Robinson decision is here.)

• Grant: The Court granted the petition for review in Texas Electric Utility Construction Ltd. v. Infrasource Underground Construction Services, LLC, No. 10-0628 (DDB). The argument date has not yet been announced.

• Modified opinion on rehearing: Turtle Healthcare Group, L.L.C. d/b/a Fred’s Pharmacy v. Yolanda Higuera Linan, et al., No. 09-0613 (per curiam) (on reh’g) (DDB). The Court decided this case about the scope of the Texas medical-malpractice statute on February 25, 2011, concluding that a failed ventilator fell within the scope of the statute. (( My original post is here. )) Today, the Court denied the family’s motion for rehearing and substituted a new opinion that changes some language to clarify: “By response to the Linans’ motion for rehearing, Turtle waived its request for attorney’s fees and costs.”

• Affirmance of parental-notification appeal: On Wednesday, the Court affirmed without comment a parental-notification appeal styled In re Jane Doe 15, No. 11-0291 (DDB). As someone who was clerking at the Court when the first wave of these appeals reached the Court, with deeply divided opinions issued in rapid succession, what’s notable is how infrequent these appeals have become. The Jane Doe 14 case was four years ago. Jane Doe 13 was in 2006. Jane Doe 12 was in 2003.

• Dissent from denial of review: Justice Willett wrote an opinion dissenting from the Court’s denial of a petition raising the issue identified in his Roccaforte concurrence today. The petition that drew the dissent was Nueces County v. Joe Guadalupe Ballasteros, No. 09-0561 (DDB).

Update: I originally posted that there would be no orders list, based on the Court’s calendar saying “No Orders” and Osler’s email this morning stating the same. But I’ve since noticed this short orders list dated today, with some petition denials and the disposition of a few other items (like striking some petitions for failing to comply with the rules).

The machinery of the conveyor belt may work so smoothly that it can churn out these routine orders even when no one is looking.

Regular programming resumes next week, with a private conference of the Justices scheduled for Tuesday.

Today I’m attending the Practice Before the Texas Supreme Court CLE in Austin. I’ll be speaking a little later about electronic resources for practitioners.

Meanwhile, the real work of the Texas Supreme Court churns ahead. The Court released its regular orders list today, with five decisions and one new cases granted for argument this fall.

Public use and bad faith in condemnation cases

The grant was in City of Austin v. Whittington, No. 10-0316 (DDB) yet another condemnation case. This one involves allegations of bad faith and lack of “public use” on the part of a city.

Five decisions today

One of today’s cases involves a discovery request served against Google trying to uncover the identity of an anonymous blogger. The Texas Supreme Court did not grapple with the First Amendment question, but instead framed this as a general question about when discovery of private information against a third-party can be obtained.

The Court makes clear that, in Texas, a side agreement between the plaintiff and the party holding that information (here, Google) does not excuse the trial court from considering the objections of the person whose personal information is involved.

Because there are so many other kinds of personal information out there in the world besides anonymous speech, the Court’s holding on this seemingly narrow procedural ground may be even more important than if it had instead based its result on First Amendment grounds.

• In re John Does 1 and 2, No. 10-0366 (per curiam) (DDB). In a per curiam opinion, the Court granted mandamus relief to a blogger who wanted to maintain his (or her) anonymity. The plaintiff in this defamation case sought discovery against Google, which agreed to produce the materials. The blogger filed a motion to quash. The trial court did not follow the usual procedures (in Texas Rule 202) because the plaintiff and Google had already reached an agreement.

  The Texas Supreme Court holds today that the requirements of Rule 202 still applied because the blogger had an obvious interest in the outcome. “But PRK and Google were not the only parties to the proceeding. Rule 202.3(a) requires that ‘all persons petitioner expects to have interests adverse to petitioner’s in the anticipated suit’ be served with the petition and given notice of hearing. PRK asserted that relators would be defendants in the anticipated lawsuit, and by their motions to quash, relators made an appearance in the proceeding. PRK and Google could not modify the procedures prescribed by Rule 202 by an agreement that did not include relators.”

I can’t write the usual summaries for the other four cases just yet, but here’s a list of the cases decided to tide you over:

• Italian Cowboy Partners, Ltd., et al . v. The Prudential Insurance Co., No. 08-0989 (DDB). This was a 6-3 decision, with Justice Green writing the majority and Justice Hecht writing the dissent.

• James Derwood Iliff v. Jerilyn Trije Iliff, No. 09-0753 (DDB). Justice Wainwright wrote for a unanimous Court affirming the judgment.

• Allen Keller Co. v. Barbara Jean Foreman, No. 09-0955 (DDB). Justice Lehrmann wrote the opinion for a unanimous Court, reversing and rendering judgment. This was Justice Lehrmann’s first majority opinion. (She has previously written two dissents.)

• O. Lee Tawes, III v. Doris Barnes, No. 10-0581 (DDB). Justice Green wrote the opinion for the Court answering the Fifth Circuit’s certified question.

The Texas Supreme Court did not issue any opinions or select any new petitions for argument with today’s orders list.

Presumably, any interesting petitions have been held for discussion at the internal court conference scheduled for next Monday and Tuesday. We should see the results of that conference in next Friday’s orders list.