At the end of its first week of oral argumenst this term, the Court issued a quiet order list today denying just a few pending petitions without comment. No opinions were issued and no petitions were granted.

The Texas Supreme Court issued a very short order list this week, with no opinions or petition grants.

In today’s order list, the Texas Supreme Court issued opinions in 11 cases and set three new petitions for its argument calendar this fall.

I am presuming this was the year-end order list. Technically, the Court has until Monday to issue its final opinions for the state fiscal year (the calendar used to track its statistics). Today’s list is a little shorter than last year’s, in which the Court issued opinions in 18 cases. But that may just reflect the smaller pool of pending cases after the Court’s abbreviated argument calendar this spring. Or it could just be par for the course — in 2007, the Court’s end-of-August order list decided 13 cases.

Me? I think 11 cases is plenty to digest and blog about on a Friday morning. Because of the length of today’s orders, my opinion summaries will follow in a separate post.

This Morning’s Three New Grants

• Bennett v. Reynolds, No. 08-0074 (DocketDB) [set for argument December 15th]. This case asks the Texas Supreme Court to reverse an award of exemplary damages that the petition says exceed constitutional due-process limits, as described in the U.S. Supreme Court’s BMW of North America, Inc. v. Gore decision.

• State of Texas v. Brownlow, No. 08-0551 (DocketDB) [set for argument December 16th]. This petition asks if a landowner can recover damages from the state for dirt removed to build a road. As the petition presents it, the dirt was removed from land already subject to a roadway easement.

• Travis Central Appraisal District v. Norman, No. 09-0100 (DocketDB) [set for argument December 16th] This petition asks if local government agencies have immunity from suits brought under Chapter 451 of the Labor Code (governing certain retaliation claims) if the plaintiffs do not first exhaust their administrative remedies within the agency.

Yesterday, the Court issued briefing requests in Combs v. Texas Entertainment Association, No. 09-0481 (DocketDB), the petition challenging the Third Court’s ruling earlier this year about the constitutionality of the tax colorfully known as the “pole tax”. This briefing request does not mean that the Texas Supreme Court will ultimately grant review in the case. But it is the next significant step in the Court’s internal process, in which both sides and any interested amici can present their full written arguments to the Court.

This briefing request followed the Court’s conference on Tuesday, at which it was considering more petitions held over from its summer recess. The Court also asked for briefing in ten other petitions. The full list of the Texas Supreme Court’s briefing requests can be accessed through this link for the next 30 days.

The Texas Supreme Court issued one opinion today and granted three new cases for its future argument calendar.

Post-answer defaults; what constitutes evidence of reasonable repair costs

Bennett v. McDaniel, No. 08-0618 (per curiam) (DocketDB)

This was a post-answer default judgment case in the vein of the Court’s recent decision in Dolgencorp of Texas, Inc. v. Lerma, No. 08-0032 (DocketDB)

Dolgencorp came out on the same day that my blog began its brief hiatus this summer. Here’s what you need to know about it:

When a party fails to appear for trial after filing an answer, that can lead to a “post-answer” default. The key is that the issues put into play by the answer remain in dispute when the case is decided on its merits:

In cases of no-answer default, . . . a defaulting defendant admits all facts properly pled in the plaintiff’s petition except for the amount of unliquidated damages. Thus, the plaintiff is only required to prove its claim for unliquidated damages. But if the defendant files an answer, as in this case, a trial court may not render judgment on the pleadings and the plaintiff is required to offer evidence and prove all aspects of its claim. (( From the Dolgencorp opinion; citations omitted. ))

In Dolgencorp, the Court concluded that the plaintiff had not presented legally sufficient evidence on part of its claim. Faced with a decision about whether to remand for a new trial or to render judgment for the (defaulting) defendant, the Court decided that remand was the proper relief.

In the Bennett case, decided before Dolgencorp but in similar circumstances, the court of appeals rendered judgment. The Texas Supreme Court reversed the court of appeals and remanded for a new trial, consistent with its decision in Dolgencorp.

The notable thing about today’s decision might be the reason why the evidence presented below was legally insufficient. The damages here involved repairs that were needed for a roof, and in this default proceeding, the plaintiff testified about an estimate that she received for those repair costs.

The court of appeals held that the plaintiff’s testimony about the price of the estimated repair in this case was, in essence, hearsay, since there was no testimony from the firm that calculated the estimate. The Texas Supreme Court said that perhaps it was hearsay, but no hearsay objection had been preserved. (It was, after all, a default proceeding.)

But the Texas Supreme Court held that this damages testimony was insufficient for a different reason — there was no testimony that these repair costs would be reasonable:

The record indicates, however, that Mary Bennett merely stated an estimated price and did not testify that the estimate was reasonable. For this reason, we agree with the court of appeals that the Bennetts did not present legally sufficient evidence of damages.

The Court thus granted the petition for review and remanded for a new trial.

New Grants

The Texas Supreme Court granted the petition for review in three cases, setting them for argument later this fall.

November 19th

• Texas Parks and Wildlife Department v. The Sawyer Trust, No. 07-0945 (DocketDB). This is a petition that the Court previously denied, and then reinstated after a motion for rehearing. It involves the question of how, if at all, you can sue the State to determine the State’s title to property.

December 15th

• Presidio Independent School District v. Robert Scott, as Commissioner of Education, No. 08-0958 (DocketDB) This dispute between a school district and the State asks how (if at all) the school district can challenge the commissioner’s decision to reinstate a teacher who had been disciplined for using excessive force. The court of appeals concluded that §21.307(a)(2) of the Education Code requires that “all parties” agree to any further challenge to the commissioner’s decision in court. Accordingly, it held that sovereign immunity barred the district’s suit.

• Scott and White Memorial Hospital, et al. v. Fair, No. 08-0970 (DocketDB) This is a slip-and-fall case about ice outside of a hospital in Temple. The petition urges the Court to adopt what it calls “the ‘Massachusetts Rule’ in cases involving slips and falls on ice.” The “Massachusetts Rule” puts the burden on the pedestrian to look out for his own safety if the ice is a natural accumulation. This is in contrast to “the Connecticut Rule,” which places the burden on the premises owner to clear ice.

  The petition’s argument begins, “While ice storms and resulting slip and fall accidents occur in Texas on a regular basis, no Texas Supreme Court case has yet addressed . . . .”

  During our record-setting heat wave and drought this summer, we can only hope for our biennial Austin ice storm, or at least some 70-degree high temperatures, by the time this case comes up on the December argument calendar.

Motion for leave to participate in argument denied

The Court denied an amicus curiae’s request to expand the argument time to permit an amicus argument in D.R. Horton-Texas Ltd. v. Markel International Insurance Co., No. 06-1018 (DocketDB).

That case is coming up for oral argument on September 8, 2009, and will be the first case argued on the Texas Supreme Court’s fall calendar.

This week’s order list has been released. As expected, it contained a relatively small number of petition denials of cases that were not held for further discussion at conference.

The Court’s summer break is over. The official calendar shows four conference days in the next two weeks. Those will be the first conferences since the end of June, and they should produce a significant number of briefing requests and decisions on pending petitions.

It was another quiet summer order list from the Texas Supreme Court this week.

This quiet spell is nearly over. Next week, the Court begins ramping up for the fall, followed by several conferences to catch up from the summer break. That all leads up to the strangest of court-watcher holidays — the end of the fiscal year — which usually brings a statistic-boosting flurry of opinions.

In a very busy order list this morning, the Texas Supreme Court issued opinions in nine of its pending cases. Because of the volume of case summaries, I’m going to post them separately.

The Court also granted four more petitions to be argued next term, including a hot-button case about recent fights over the Houston City Charter. (( Two of the petitions the Court granted today had previously been denied by the Court and were reinstated today after successful motions for rehearing. ))

Petitions Granted

• D.R. Horton-Texas Ltd. v. Markel International Insurance Co., No. 06-1018 (DocketDB). An insurance case about the duty to indemnify and the “Eight Corners” rule. (Rehearing granted)

• University of Texas Southwestern Medical Center at Dallas v. The Estate of Irene Esther Arancibia, No. 08-0215 (DocketDB). A Tort Claims Act case asking whether a change the Legislature made to the scope of sovereign immunity was retroactive and also about whether this suit was barred for failure to satisfy the conditions of §101.106. (Rehearing granted)

• University of Texas Health Science Center at San Antonio v. Kia Bailey and Larry Bailey, No. 08-0419 (DocketDB). A case about how the statute of limitations and the “relation-back” doctrine apply to health-care liability claims against government hospitals.

• Carroll G. Robinson, Bruce R. Hotze and Jeffrey N. Daily v. Bill White, Mayor; City of Houston, Houston City Council; et al., No. 08-0658 (DocketDB). A case by citizens of Houston challenging how the city’s elected officials chose to incorporate two ballot propositions (“Prop 1” and “Prop 2” from 2004, which together limit city taxation and spending) into the city charter.

Today’s Opinions

• Edwards Aquifer Authority, et al. v. Chemical Lime, Ltd., No. 06‑0911 (DocketDB) Justice Hecht delivered the opinion of the Court, in which all nine Justices joined. Justice Brister also delivered a concurring opinion, as did Justice Willett.

• State of Texas and the Texas Department of Transportation v. George Lueck, No. 06‑1034 (Green, J.) (DocketDB)

• Gail Ashley v. Doris D. Hawkins, No. 07-0572 (Green, J.) (DocketDB)

• Paul H. Smith, et al. v. Thomas O’Donnell, Executor of the Estate of Corwin Denney, No. 07-0697 (DocketDB). This was a 5-2 vote, with Justices Hecht and Green not sitting. Justice O’Neill delivered the opinion of the Court, garnering 5 votes. Justice Willett delivered a dissenting opinion, in which Justice Wainwright joined.

• Harry Holmes, II, Independent Executor of the Estate of Thomas J. Homes, Sr. v. Douglas G. Beatty, Independent Executor of the Estate of Kathryn V. Holmes, No. 07-0697 (Jefferson, C.J.) (DocketDB) and No. 07-0785 (DocketDB) (consolidated)

• Galbraith Engineering Consultants, Inc. v. Sam Pochucha and Jean Pochucha, No. 07-1051 (Medina, J.) (DocketDB)

• State of Texas v. Central Expressway Sign Associates, et al., No. 08-0061 (O’Neill, J.) (DocketDB)

• In re Macy’s Texas, Inc., No. 08-0584 (per curiam) (DocketDB)

• In re Boma O. Allison, No. 08-0705 (Jefferson, C.J.) (DocketDB)