With today’s orders list, the Texas Supreme Court:

• issued two decisions, including one about the jury charge in deficiency-judgment cases, which should be of interest to many lawyers these days;

• chose three new cases to be argued this fall, including the case about press access to travel vouchers submitted for the Governor’s out-of-state travel; and

• denied a large number of petitions after its end-of-summer conference this week. (The petitions that had been carried forward to today’s list were those marked for discussion at conference by at least one Justice.)

Buried within the orders list is a small news item I didn’t know: The Texas Supreme Court’s November 10, 2010 argument sitting will be in Amarillo, Texas, at the Globe-News Center.

Read more about today’s decisions

It was another fairly quiet summer orders list, with no opinions issued or new cases granted review.

The Texas Supreme Court can issue emergency relief even without the filing of a petition for review

There was one interesting order for those of you in the emergency-stay business. In The University of Texas Southwestern Medical Center at Dallas v. Larry M. Gentilello, M.D., No. 10-0582 (DDB), the Petitioner sought an emergency stay — and requested one without having first filed a petition for review. (( The petition had, however, filed a motion to extend time, opening a docket entry for the case. ))

The Respondent objected, arguing (PDF) that

the rules do not contemplate that any proceeding exists here until a party has filed a Petition for Review.

and that

A motion for extension of time to file a Petition for Review gives this Court nothing to review, and therefore, cannot initiate the proceeding that must exist before this Court may grant emergency relief.

With today’s order, the Texas Supreme Court implicitly disagreed. It granted the requested emergency relief and set a deadline to receive the formal petition for review. (( The notation from the orders list:

emergency motion to enforce statutory stay and vacate court of appeals’ order granted in part

stay order issued

[Note: The petition for review is due to be filed on or before September 22, 2010.]

))

With today’s orders list, the Texas Supreme Court formally accepted a certified question from the Fifth Circuit in O. Lee Tawes III v. Doris Barnes, No. 10-0581 (DDB). You can read more about that case in this earlier post.

Today brought another quiet orders list during the Court’s summer break.

The Court’s next scheduled conference begins on August 16, 2010.

As expected, it was a quiet orders list today.

The Court’s next scheduled conference begins on August 16, 2010.

With today’s otherwise quiet orders list, the Texas Supreme Court announced its fall argument calendar for September and October.

September

September 14, 2010

• Anglo-Dutch Petroleum International, Inc. and Anglo-Dutch (Tenge) L.L.C. v. Greenberg Peden, P.C. and Gerard J. Swonke, No. 08?0833 (DDB) (Justice Guzman not sitting)

• Offshore Specialty Fabricators, Inc., et al. v. Wellington Underwriting Agencies, Ltd., et al., No. 08?0890 (DDB)

• Hyde Park Baptist Church v. Tara Turner and Terry Curtis, Individually and As Next Friends of P.C., a Minor, No. 09?0191 (DDB)

September 15, 2010

• American Home Assurance Company and Illinois National Insurance Company v. Maryland Casualty Company, No. 09?0226 (DDB) [moved to Nov. 9, 2010] (( The Texas Supreme Court granted a motion to reset this argument date with its August 6, 2010 orders. ))

• XTO Energy Inc. v. Smith Production Inc., No. 09?0270 (DDB) (Justice Guzman not sitting)

• Betty Yvon Lesley, et al. v. Veterans Land Board of the State of Texas (VLB), et al., No. 09?0306 (DDB) (Chief Justice Jefferson not sitting)

September 16, 2010

• In re Joseph Charles Rubiola a/k/a J.C. Rubiola, Gregory Allan Rubiola, Catherine Rubiola, JGL Design-Build, Llc a/k/a JGL Design Build and Michael Cortez, Individually and d/b/a the Heights Design and Construction, No. 09?0309 (DDB)

• Aaron Glenn Haygood v. Margarita Garza De Escabedo, No. 09?0377 (DDB)

• Marsh USA Inc. and Marsh & McLennan Companies, Inc. v. Rex Cook, No. 09?0558 (DDB)

October

October 12, 2010

• Reid Road Municipal Utility District No. 2 v. Speedy Stop Food Stores, Ltd., No. 09?0396 (DDB) (Justice Guzman not sitting)

• Esperanza Andrade, in Her Official Capacity As Secretary of State for the State of Texas v. NAACP of Austin, Nelson Linder, Sonia Santana and David Van Os, No. 09?0420 (DDB)

• In re Coy Reece, No. 09?0520 (DDB)

October 13, 2010

• Jeremy Molinet v. Patrick Kimbrell, M.D. and John Horan, M.D., No. 09?0544 (DDB)

• James Derwood Iliff v. Jerilyn Trije Iliff, No. 09?0753 (DDB)

• The City of Houston v. Steve Williams, et al., No. 09?0770 (DDB)

October 14, 2010

• Jose Carreras, M.D., P.A. v. Carlos Francisco Marroquin, et al., No. 09?0857 (DDB)

• In re Mark A. Jacobs, M.D., Debra C. Gunn, M.D. and Obstetrical and Gynecological Associates, P.A., No. 09?0942 (DDB)

• Patrick O. Ojo, on Behalf of Himself and All Others Similarly Situated v. Farmers Group, Inc.; Fire Underwriters Association; Fire Insurance Exchange; Farmers Underwriters Association; Farmers Insurance Exchange, No. 10?0245 (DDB)

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

One order of note: The Green Party of Texas’ mandamus petition (In re Deb Shafto, et al., No. 10-0487 (docket and briefs)) was dismissed as moot, after the Democratic Party agreed this week to drop its challenge to the presence of Green Party candidates on the statewide ballot.

Related: “Democrats to stop fighting ballot access for Green Party” (Statesman)

The calendar does not lie. It hinted that the Court might have a flurry of activity before the summer break. And it did, issuing opinions in eight cases with today’s orders list and selecting two new cases to be argued this fall.

As of 9:00 am, there has been no decision in the Green Party mandamus action. (It has been suggested in the press that today is a practical deadline in the case, the day of ballot certification.)

Today’s opinions

The case with the biggest impact on your appellate practice might be Daredia — the case about the finality of a default judgment (the last one on this list). If you are ever tempted to seek a default judgment against one defendant in a multi-defendant case, you should tread very carefully.

The orders list notes that Justice Lehrmann did not participate in any of today’s opinions or orders.

• Grant Thornton LLP v. Prospect High Income Fund, No. 06?0975 (docket and briefs). This is a case about fraud and reliance in an accounting context. The Chief Justice wrote for the Court. (Justice Guzman joined Justice Lehrmann in not participating in this decision.)

• In re B.G., C.W., E.W., B.B.W., and J.W., Children, No. 07-0960 (docket and briefs). In parental-termination cases, the statute requires an appellant to file a statement of issues with the trial court within 15 days. Today, the Texas Supreme Court holds that “due process does not allow the lack of the required statement to be the basis for denying the parent an appellate record.” Justice Hecht wrote for the Court.

• Institutional Division of the Texas Department of Criminal Justice and Miguel Martinez v. Arthur Powell, No. 08?0345 (per curiam) (docket and briefs). This was a §1983 claim brought by a prisoner. The Texas Supreme Court holds that the prisoner failed to state a claim, in part because he did not allege how the retaliation against him for his First Amendment activities rose to a constitutional level.

• The University of Texas at El Paso v. Alfredo Herrera, No. 08?1049 (docket and briefs). The Court holds that (1) the federal FMLA (Family & Medical Leave Act) did not abrogate Texas’ sovereign immunity and (2) that the University itself had not waived immunity from suit through a sentence in its employee handbook. Justice Willett wrote for the Court.

• Sondra L. Grohman v. Clarence J. Kahlig, II; North Park Lincoln-Mercury, Inc., et al., No. 09-0093 (per curiam) (docket and briefs). From the per curiam: “In this case, Sondra Grohman sued her ex-husband, Clarence Kahlig II, for various torts and breach of a Security Agreement (Agreement) entered pursuant to their divorce settlement when he changed the security, stock in his two corporations, into limited partnership units… We hold Kahlig did not breach the Agreement as a matter of law, and Grohman presented no evidence to support her tort claims.” (The Chief Justice joined Justice Lehrmann in not participating in this decision.)

• The State of Texas v. K.E.W., No. 09?0236
  (docket and briefs). In this civil-commitment case, the Court concluded that the evidence was indeed sufficient to support commitment. Justice Johnson wrote the opinion of the Court, looking to dictionary definitions of “overt” and “act,” concluding that K.E.W.’s threats could be “overt acts” to support commitment. The concurring Justices looked instead to the First Amendment distinction between true threats and protected speech and would not have treated verbal statements as “overt acts,” although they found other indications of “overt acts” in the record (such as carrying around a list of potential targets). (( The distinction here is an interesting one that probably warrants some more thought. We don’t want the Minority Report pre-crime crew barging into our houses quite yet. )) Justice Johnson delivered the opinion of the Court. Justice Green delivered that concurring opinion, in which Justice Willett joined.

• Quixtar, Inc. v. Signature Management Team, LLC, No. 09?0345 (per curiam) (docket and briefs). In this common-law forum non conveniens case, the Court upholds the trial court’s dismissal. Along the way, it holds that the court of appeals applied too strict a standard: When the forum was chosen by a nonresident plaintiff, the defendant did not need to show that the evidence “strongly” favored dismissal. Rather, questionable calls are left within the trial court’s zone of discretion. (Justice Hecht joined Justice Lehrmann in not participating in this decision.)

• In re Pervez Daredia, No. 09-1014 (per curiam) (docket and briefs). This is a cautionary tale for anyone who has ever sought a default judgment. Here, American Express sued both Daredia and a corporation. The corporation did not answer; American Express sought and obtained a default judgment that said it was “final.” After 30 days elapsed, American Expressed realized its error and asked the trial court to amend the judgment to clarify that its claims against Daredia could proceed. The trial court did so. Today, the Texas Supreme Court holds that “final” means “final” (at least on a judgment written as clearly as this one), so that the claims against Daredia were extinguished in the judgment.

Two New Grants

• Betty Yvon Lesley, et al. v. Veterans Land Board of the State of Texas (VLB), No. 09-0306 (docket and briefs). This germ of this case is a dispute about whether mineral rights were passed with a land transfer. (Chief Justice Jefferson will not be sitting on this case.)

• City of Houston v. Steve Williams, et al., No 09-0770 (docket and briefs). This petition asks the Court to apply §271.152 of the Local Government Code, which includes a limited waiver of sovereign immunity for municipalities. The parties dispute whether the plaintiff’s theories fit within that waiver.

These two cases join the others awaiting an argument date for the fall.