On Tuesday afternoon, the Texas Supreme Court issued orders granting six new cases for argument. Three were set for argument March 1, 2011; the other three have not yet been assigned an argument date. (You saw the tweet about it, right?)

What issues were granted? Takings, takings, patent law (( Yes, in state court — that’s actually the question. No, the answer isn’t obvious. )), specificity of new-trial orders, whether a notarized statement is admissible in an administrative proceeding, and yet another case about the scope of the health-care liability statute.

The pattern holds from last month of the Court waiting until about 21 days before the argument date before filling its calendar. (( Normally, the Court issues grants of review with its regular Friday orders list. These mid-week orders may in part be a result of the new way that the Court has arranged its calendar. The Court may also be catching up from issuing relatively few grants during the fall. ))

Three cases set for March 1, 2011

• Texas Rice Land Partners Ltd. and Mike Latta v. Denbury Green Pipeline-Texas LLC, No. 09-0901 (DDB). Does this pipeline company — which agreed with the Railroad Commission to carry other people’s products as well as its own — qualify as a “common carrier” so as to be granted eminent domain powers under Texas law? [Rescheduled for April 19, 2011]

• FPL Farming Ltd. v. Environmental Processing Systems L.C., No. 09‑1010 (DDB). This case is about wastewater injected underground and, when it migrates to a neighboring property, whether that is a trespass. Other issues are whether the permit that authorized the injection creates a shield from liability and whether its issuance was a taking.

• Vernon F. Minton v. Jerry W. Gunn, et al., No. 10‑0141 (DDB). A question here is whether an unsettled patent-law question that’s folded into a Texas legal malpractice claim is beyond the reach of Texas courts to resolve.

Three cases granted for a future argument date

• Basith Ghazali, M.D. v. Patricia Brown, No. 10-0232 (DDB). Does the health-care liability act (you know, all the expert-witness-report requirements and the like) apply to laser hair removal?

• Texas Department of Public Safety v. Stephen Joseph Caruana, No. 10-0321 (DDB). Was an officer’s notarized statement admissible in a license-revocation hearing?

• In re United Scaffolding Inc., No. 10-0526 (DDB). Was the trial court’s order granting a new trial specific enough? (( Osler McCarthy’s email announcement of the grants also included the text of the trial court’s order, so you can form an opinion for yourself:

After re-considering Plaintiff James and Lisa Levine’s Motion for New Trial, the Court GRANTS the motion and orders New Trial based upon:
A. The jury’s answer to question number three (3) is against the great weight and preponderance of the evidence; and/or
B. The great weight and preponderance of the evidence supports a finding that the determined negligence of Defendant was a proximate cause of injury in the past to Plaintiff, James Levine; and/or
C. The great weight and preponderance of the evidence supports a finding that the determined negligence of Defendant supports an award of past damages; and/or
D. In the interest of justice and fairness

))

Which is rarer: snow in Austin, or a successful motion to rehear a petition? Today, at least, you don’t have to choose.

Although the Court is officially closed due to snow, the electronic version of today’s orders has now been posted. And mixed in with the handful of petition denials that you would expect in a non-conference week were two (yes, two) grants of rehearing for petitions that had previously been denied.

The two petitions granted rehearing were:

• DeLeon v. Royal Indemnity Co., No. 10‑0319 (DDB) (had been denied review on Aug. 27, 2010)

• Bell v. Zurich American Insurance Co., No. 10-0411 (DDB) (had been denied review on Oct. 1, 2010)

Both were about the workers compensation system and, substantively, were about determining the “MMI” from an injury (the maximum medical impairment, measured as a percentage of full health).

So why rehearing?

The answers seem to be in the Bell case. The motion for rehearing in that case takes an interesting angle — pointing to a later-filed (and still-pending) petition that reached the opposite result on the same issue. (( The other petition is American Zurich Insurance Co. v. Samudio, No. 10-0554 (DDB). The Court requested full briefs in Samudio on January 14, 2011.)) The motion made that pitch on the first page, before turning to any of the merits. (It also mentioned the DeLeon case, which had been denied review a few months before, as raising the same issue.)

That call was joined by a rehearing-stage amicus brief — an increasingly common, and sometimes successful, way to refocus the Court’s attention on an case it has just denied. This amicus brief was filed by a state agency, the Office of Injured Employee Counsel, which has a special role in workers compensation cases before the division (but is prohibited from representing them directly in Court.) The amicus brief leaned on that credibility:

OIEC has determined that the interests of injured employees as a class will be adversely affected if the Court of Appeals’ decision is not overturned. Thus, OIEC respectfully requests the Court to grant the Petitioner’s Motion for Rehearing and the Petition for Review

That added some weight to its lead argument, which focused on institutional concerns if workers compensation claims could be challenged through the procedural mechanism chosen by the insurer here (a UDJA suit) rather than by going through more formal review in the Division of Workers Compensation.

Although rehearing was granted, neither petition has been set for oral argument. Both have been returned to the Court’s docket and full briefing has been requested in both cases.

With today’s orders list, the Texas Supreme Court issued one per curiam opinion. The Court did not choose any new petitions for its argument calendar.

An affidavit of indigency must be challenged within 10 days

In re C.H.C., a child, No. 09-0480 (per curiam) (DDB)

Many first-time litigants are surprised to learn that the parties themselves must pay for the preparation of the transcript of trial court proceedings (the “Reporter’s Record”). After the trial proceedings conclude, a party who wishes to appeal generally must make arrangements to pay for that transcript to be sent to the court of appeals. (( Some purely legal disputes don’t require this reporter’s record, but anything that involves disputes over facts invariably does. ))

The problem for the justice system arises when the party cannot, due to financial hardship, pay. In Texas, the rules permit a party to file an “affidavit of indigency” establishing that they qualify for a free appellate record. See Tex. R. App. P. 20.

Who could object? Well, in addition to the adverse party (who might like to win without an appeal), both the court reporter and district clerk have a financial incentive to object to a private party not paying the full customary fees.

This appeal grew out of a child-custody dispute. The mother filed documents attempting to establish her indigency. She included an affidavit but no supporting exhibits; she did not, in that affidavit, walk through each of the elements discussed in Rule 20. No party filed an objection within 10 days.

Soon thereafter, the mother’s counsel withdrew. She later filed another motion about her indigency (which seemed to be asking the trial court to rule on her previous request), and when this new motion was set for a hearing, the father eventually raised objections to the affidavit.

The mother then filed a second, expanded affidavit about her indigency, attempting to address those concerns. No party objected within 10 days.

The trial court ultimately denied the mother’s request to be classified as indigent. She then sought relief from the court of appeals, which ordered the trial court to hold yet another hearing because it found the situation “unclear.”

The mother sought relief from the Texas Supreme Court. The Court now holds that the mother’s two original affidavits — neither of which was timely challenged — were good enough, even if they did not formally walk through each element in the Rule.

The Court’s opinion hedges somewhat about what is required for future affidavits. Although it says that the first affidavit “clearly indicates that [the mother] would be unable to afford the costs of appeal,” it then proceeds to say, “[e]ven if [the first] affidavit were deemed too conclusory,” the second was even more detailed. [To avoid any uncertainty, litigants will want to be as detailed as possible. That will also protect them if a contest is filed.]

The thrust of the holding, however, is plain enough. A party’s affidavit of indigency, if it is good enough to carry their burden (“preponderance of the evidence”) to establish their inability to pay, must be challenged within 10 days. If there is no timely challenge, the trial court must give it the benefit of the doubt.

With Friday’s orders list, the Texas Supreme Court issued ten decisions — which as I noted in a tweet, each included an “M.D.”, an “R.N.”, or a hospital in the case caption. Six of the ten decisions are GVR (“grant, vacate, and remand”) dispositions asking the court of appeals to reconsider its answer in light of the Franka case (announced today).

For those scoring along at home, of the four lead cases, two favored the medical provider and two the plaintiff. The biggest one — about the scope of immunity for government doctors — favored the government’s side.

The Court also filled out its March 3 argument calendar by re-setting some previously granted cases: Insurance Company of the State of Pennsylvania v. Carmen Muro, No. 09-0340 (DDB, and In re State, No. 10-0235 (DDB).

As the orders list notes, these March 3, 2011 arguments will be held at UT-Pan American in Edinburg.

Issues:

• The scope of the immunity shield of § 101.106, which forces plaintiffs to choose between suing a government entity and suing a government employee, in the context of medical malpractice. (The medical professionals get this shield even when the plaintiff did not have the option of suing the institution.) The Court announced six GVRs related to this opinion.

• A tension between the medical-malpractice reform act’s two-year statute of limitations and the tolling provisions of the comparative-responsibility statute in Chapter 33 of the civil practice and remedies code. (The med-mal statute wins.)

• Whether a government entity can invoke the statute of limitations when a plaintiff accidentally sued an official by name rather than the entity itself. (No, at least not when the lawsuit is framed in the “official capacity” of the defendant.)

• And a decision about the scope of “implied findings” when the trial court does not issue formal findings of fact. (The court of appeals cannot affirm on an alternative ground if that relies on a finding not strictly necessary to the judgment it announced.)

[Read more →]

With today’s orders list, the Texas Supreme Court issued one per curiam opinion. The Court did not set any more cases for its argument calendar.

A question of whether property is community or separate property cannot be relitigated years after a divorce decree becomes final

Today’s opinion was in Rita Lackey Fillingim Pearson v. Willis Dan Fillingim, No. 10-0013 (per curiam) (DDB).

The Fillingims divorced in 1981. After listing specific assets, the divorce decree included a residuary clause awarding each divorcing spouse a “one-half interest in all other property or assets not otherwise disposed of herein.”

Among the assets not listed were a set of four deeds for mineral rights, which Willis’s parents had assigned to him during the marriage. In a lawsuit filed in 2006, Willis contended that these mineral rights were separate rather than community property and that, accordingly, he should be receiving 100% of the proceeds rather than just 50%.

The trial court agreed. The court of appeals ultimately agreed, too, concluding that the residuary clause was only meant to reach community property — not to turn separate property into community property.

In a per curiam opinion, the Texas Supreme Court reversed. The Court’s reasoning was two-pronged. First the Court focused on the Family Code’s presumption that all property acquired during the marriage is community property. This is just a presumption, of course, but in this case the spouse did not introduce evidence in the original divorce proceeding contesting that classification. As such, the Court concluded, the original court’s classification was correct.

Second, the Court reasoned that it was just too late to challenge that classification: “Even further,… ‘a court has jurisdiction to characterize community property—even if it does so incorrectly.'” (emphasis added) The time to challenge that classification was in an appeal of the original divorce decree, not in a later collateral attack.

The Texas Supreme Court thus reversed the court of appeals and dismissed this after-the-fact challenge to the original divorce decree.

In an unscheduled orders list today after its private conference, the Texas Supreme Court granted three petitions for review and set each of them for argument on February 3, 2011.

Petition grants are normally announced with the regular Friday orders, but by releasing this list today, the Court was able to provide these litigants with at least 21 days notice before the oral argument.

• Christoper N. Epps and Laura L. Epps v. Bruce Fowler, Jr. an Stephanie L. Fowler, No. 10‑0283 (DDB). This petition asks when a defendant in a Deceptive Trade Practices Act (DTPA) suit can recover attorneys fees as a “prevailing party” when the plaintiff voluntarily nonsuits their claim.

• 1/2 Price Checks Cashed v. United Automobile Insurance Co., No. 10‑0434 (DDB). Texas law provides attorneys fees to the prevailing party in a breach-of-contract suit, if certain procedures are followed. This case asks if a lawsuit to collect on a dishonored check is a “contract” claim within that statute. (Justice Johnson is not sitting on this case.)

• CMH Homes, Inc. v. Vanderbilt Mortgage and Finance, Inc. and Bruce Robin Moore, Jr. v. Adam Perez, No. 10‑0688 (DDB). I thought the last legislative session had saved us from further litigation about whether arbitration-related decisions had to be challenged by interlocutory appeal or by a mandamus proceeding, but here is another. This case asks the Court to conclude that interlocutory appeal is appropriate — or alternatively to do away with the whole distinction, instead embracing a concurring opinion written by the party’s counsel when they were on the Court. In re D. Wilson Construction Co., 196 S.W.3d 774 (Tex. 2006) (Brister, J., concurring).

The Texas Supreme Court’s first orders list of the year is a fairly quiet one. The Court did not issue any opinions or select any new cases for review.

The Justices do have a two-day private conference next week, so next week’s orders list may have more activity.

With Friday’s orders list, the Texas Supreme Court issued two new decisions that will be important to the Texas tort bar. It also issued its decision on rehearing in the highly publicized Exxon well-plugging cases. And it cleaned up an earlier opinion without formally granting rehearing. (( The Court made minor changes to the opinion in Gilbert Texas Construction, L.P. v. Underwriters at Lloyd’s London, No. 08‑0246 (DB). Osler’s summary email describes them the minor changes this way: “Initialism (OCIP) removed on page 3 of original PDF; style and wording changes in footnote 8; ‘see also’ signal added in footnote 9; ‘see’ signal on Hartrick cite on page 25; and record and case cites on pages 27 and 30.” ))

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