The Court issued one opinion with today’s orders list. It did not grant any new cases for oral argument.

Today’s opinion was Justice Guzman’s second since joining the Texas Supreme Court. Both have been decisions for a unanimous Court; she has not yet written or joined a dissent or concurrence. (For the curious, here is a list of split decisions in the Texas Supreme Court this term.)

Presidio Independent School District v. Robert Scott, as Commissioner of Education., No. 08-0958 (briefs and docket)

This case is about the appellate process for a school district’s decision to discipline (here: to fire) a teacher who has been accused of violating school policy (here: a corporal-punishment policy).

Read a summary

With today’s orders list, the Texas Supreme Court issued five opinions — four of which relate to the long-running dispute over the Kenedy ranching fortune.

I’ll have a separate post about the Kenedy cases. (( For those keeping track, the new reigning “oldest case pending after argument” is Solar Applications Engineering, Inc. v. T.A. Operating Corporation, No. 06-0243 (docket ))

Certified question accepted. (Yes, it’s about Texas insurance law.)

Patrick O. Ojo, Attorney, 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 (docket).

I wrote last weekend about the Ninth Circuit certifying a question about how Texas insurance law applies to allegedly discriminatory effects in how insurers use credit in underwriting decisions.

With today’s orders, the Texas Supreme Court formally accepted that invitation and indicated that it will hear oral arguments (likely this fall).

Forum-selection clause enforced.

In re Lisa Laser USA, Inc. and Lisa Laser Products, oHG, No. 09-0557 (details) (per curiam) (Hecht, J., not sitting)

In addition to Kenedy, the other case resolved today was In re Lisa Laser, a dispute over whether a forum-selection clause was broad enough to also protect the foreign parent company of the U.S. subsidiary. (It was.)

Read more about Lisa Laser and forum selection clauses

In its big orders list last August, the Texas Supreme Court decided Marks v. St. Luke’s Episcopal Hospital, No. 07-0783 (docket and briefs) a case about the reach of Texas’s medical-malpractice statute.

The question was framed whether an injury caused by a defective hospital bed was covered by that statute or whether, instead, it was a question of premises liability. I wrote about the case in this previous blog post.

Divided 5-4, the Texas Supreme Court held that this narrow claim was not covered by the medical-malpractice statute and thus the plaintiff was exempted from the added requirements (such as the ever-popular expert report requirement).

Justice Medina wrote for the five-vote majority. Four Justices joined three dissents. Chief Justice Jefferson also wrote a concurrence.

Justice Brister, who is no longer on the Court, was a member of the five-Justice majority.

The Court’s order today does not set the case for re-argument; all it does is extend the Court’s time to act beyond the 180-day limit on motions for rehearing that I have written about in the past.

Zinc Nacional, S.A. v. Bouché Trucking, Inc., No. 09-0734 (per curiam) (docket and briefs)

This case turned on a subtle but important distinction in personal jurisdiction.

Here, Zinc is a Mexican manufacturing company that ships paper to New Mexico, Nevada, and Florida for reprocessing. Along the way, these goods were carried by Bouché Trucking, a Texas corporation that had been subcontracted to carry the merchandise.

In transport, one of the trucks rolled over, injuring its driver. He sued his employer, Bouché, who in turn sued Zinc.

The court of appeals looked (in part) to whether Zinc had other customers in Texas when determining whether Texas courts could exercise specific personal jurisdiction over this claim.

The Texas Supreme Court rejected that reliance on contacts that were “unrelated to the accident in this case.”

Although Zinc does have three or four customers for its other products in Texas, and does receive some raw materials from Texas, these facts are unrelated to the accident in this case and are thus irrelevant to the question of specific jurisdiction. However, they may have some bearing on the existence of general jurisdiction, an issue the court of appeals did not consider.

With today’s orders list, the Texas Supreme Court issued one merits decision and granted rehearing in the most divided case from last term, the Marks v. St. Luke’s Episcopal Hospital case. I’ll have short posts up about each of those cases in a few minutes.

Cases set for argument this fall

The Court also set seven new cases for oral argument. Because next week’s argument sitting is the last one on the calendar, it appears these cases will be heard this fall.

Among the grants are a challenge to Travis County’s electronic voting machines, a case about the “collateral source” rule so well known to all tort lawyers, and a case about whether arbitration can be enforced in a dispute between a home buyer and seller when the only arbitration clause was in the mortgage documents.

The blurbs below are lifted from Osler McCarthy’s email and are, of course, not an official summary by the Court.

• Offshore Specialty Fabricators Inc., et al. v. Wellington Underwriting Agencies Ltd., et al., No. 08-0890 (docket and briefs): “A principal issue in this insurance dispute is whether lined-through language in a policy should be considered as evidence that parties intended no coverage.”

• XTO Energy Inc. v. Smith Production Inc., No. 09-0270 (docket and briefs): (( Justice Guzman wrote the dissent from this case in the court of appeals. )) “The principal issue is whether the standard form joint-operating agreement allows a non-operating oil-and-gas interest-holder to change its election regarding a drilling proposal when the change is within the agreement’s 30-day response period. If the agreement is ambiguous, (1) is an expert affidavit outlining purported industry custom and usage admissible? and, if so, (2) is it legally sufficient to establish a fact question to defeat summary judgment?”

• In re Joseph Charles Rubiola, et al., No. 09-0309 (docket and briefs): “The issue is whether arbitration can be compelled for misrepresentation claims involving a home sale when (a) the home-sale agreement did not contain an arbitration provision (b) but the mortgage contract did and (c) the principals selling the house and financing it were the same. The mortgage-agreement arbitration clause covered ‘each and all persons and entities signing this agreement or any other agreements between or among any of the parties as part of this transaction.'”

• Aaron Glenn Haywood v. Margarita Garza de Escabedo, No. 09-0377 (docket and briefs): “The issue is whether Civil Practices and Remedies Code section 41.0105 abrogates the collateral-source rule, either as an evidentiary rule or a damages rule, when an injured person’s initial medical expenses differ from those actually paid or incurred by or on the claimant’s behalf.”

• Reid Road Municipal Utility District No. 2 v. Speedy Stop Food Stores Inc. Ltd., No. 09-0396 (docket and briefs): “The principal issue is whether a corporate agent under the property owner rule — allowing a property owner to testify to its value even if unqualified to assess property belonging to someone else — is competent to testify to the value of corporate property.”

• Esperanza Andrade, Secretary of State v. NAACP of Austin, et al., No. 09-0420 (docket and briefs): “In this challenge to the secretary of state’s electronic-voting-machine certification for Travis County’s use, the principal issues are (1) whether the plaintiffs have standing by showing a concrete injury and, if so, (2) whether their allegations of election law and state constitutional violations waive sovereign immunity either under Election Code section 273.081 or for injunctive and declaratory relief against a state official acting without authority.”

• Marsh USA Inc. and Marsh and McLennan Cos Inc. v. Rex Cook, No. 09-0558 (docket and briefs): “The issue is whether a covenant not to compete given in exchange for stock options is unenforceable.”

Del Lago Partners, Inc. and Del Lago Partners, L.P., d/b/a Del Lago Golf Resort & Conference Center, and BMC-The Benchmark Management Co. v. Bradley Smith, No. 06-1022 (docket and briefs)

Some fraternity members held a three-day reunion at the Del Lago Golf Resort near Lake Conroe. On the first night, a resort security guard made an unruly drunk patron leave the bar and closed the bar an hour early because of the situation.

On the second night, the fraternity members were joined at the resort bar by a wedding party. Over a period of 90 minutes, tensions between the groups grew. There were a few small incidents of shoving and verbal exchanges, but no one was ejected from the bar. After 1:30 a.m., a full melee broke out, lasting for several minutes.

The plaintiff, Bradley Smith, had been observing the fight and “waded into the scrum” to remove an injured friend. “Before Smith could extricate himself, an unknown person grabbed him and placed him in a headlock. Momentum carried Smith and his attacker into a wall, where Smith’s face hit a stud. Smith suffered severe injuries including a skull fracture and brain damage.”

Smith sued Del Lago on a premises-liability theory. The jury found both Del Lago and Smith himself negligent, dividing responsibility 51% to 49%. The trial court reduced Smith’s damages by the amount of his own negligence and entered judgment on the remaining $1.48 million in damages.

The court of appeals affirmed, concluding that the resort should have foreseen the risk of injury based on the 90 minutes of growing tensions before this fight.

Today, the Texas Supreme Court also affirmed the award.

The Justices divided 6-3, with Justice Willett writing for the majority and each dissenting Justice writing a dissent.

Read more

With Friday’s orders list, the Texas Supreme Court released two opinions:

• In re United Services Automobile Association, No. 07-0871 (docket and briefs), about whether a plaintiff who, for strategic reasons, sues in the wrong trial court can later file suit in the correct court; and

• In re Laibe Corp., No. 09-0426 (per curiam) (docket and briefs), enforcing a forum-selection clause that was included in a sales contract for an oil rig.

Kendall Gray has posted a really nice article about how In re USAA fits into Texas mandamus law over at The Appellate Record.

In general, you can’t get mandamus relief to order a trial court to grant summary judgment.

But the Court did here. Kendall suggests that this unusual result was animated by “the right of the court system to defend itself” (which he dubs the “Chuck Norris principle”):

If you try to game the system, especially where there is a legislative policy stated to the contrary, Chuck (the Court System) will issue a mandamus (round-house kick) to your face.

That seems about right.

So what does this mean for future cases? Whatever motivated the Court in In re USAA, the precedent seems set that it is possible to get mandamus review of the denial of a motion for summary judgment on limitations grounds. There are two guesses:?

1. This was a statute of limitations question, so the defendant
   would (arguably) be harmed by even having to go to trial. The Court
   noted that there had already been a full trial in the wrong
   court, so going forward would result in a second wasteful trial. But a wasteful trial is a wasteful trial, and where it is clear that relief should be granted, the defendant and court system are better off with early relief.

2. Or, the relief here was closer to a sanction than a decision about the limitations question. The Court was very troubled by what it saw as the
   plaintiff’s intentional disgregard of the rules for tactical
   advantage. The result had already been substantial costs imposed on
   both the defendant the court system. (( The first opinion is at USAA v. Brite, 215 S.W.3d 400 (Tex. 2007) (docket and briefs). ))

It’s possible that the first, broader reading will take hold and that the Court will add statutes of limitations to its growing list of defenses that will get you a ticket to mandamus review (arbitration clauses, forum-selection clauses, and the like).

But I agree with Kendall that the safer bet is the second reading, that this outcome was driven by the Court’s perception that the system was being intentionally abused.

A common piece of briefwriting advice is this: “Never tell a court that it can’t do something.” There are polite ways to lead a court to that conclusion. But an outright challenge to court authority is just begging for trouble.

We pause for the overruling of a case from the 1990s: The time period for filing a Human Rights Act lawsuit is no longer jurisdictional.

In the middle of this opinion, the Court provided a little relief to workers suing under the TCHRA.
In Schroeder v. Texas Iron Works, Inc., 813 S.W.2d 483 (Tex. 1991),
the Texas Supreme Court noted (in a footnote) that the time period for
filing those lawsuits was “mandatory and jurisdictional.” Id at 487
n.10.

In re USAA overrules that holding. The Chief
Justice explained that “we, like the U.S. Supreme Court, have
recognized that our sometimes intemperate use of the term
‘jurisdictional’ has caused problems.” In more
recent cases, such as See Univ. of Tex. Sw. Med. Ctr. v. Loutzenhiser, 140 S.W.3d 351, 359 (Tex. 2004), it had held that similar statutes were not jurisdictional. With In re USAA, the Court formally overruled Shroeder‘s holding about the TCHRA to bring it into line.

The Texas Supreme Court did not issue any opinions with today’s orders list. (For me, at least, that’s a good thing. I’m still digesting last week’s eight decisions.)