I can already see a couple of things on today’s order list that deserve their own longer posts. For now, here is the overview…

Six Cases Decided With Opinions

• TXI Operations, L.P. v. Perry, No. 05-0030. The Court affirmed by a 6-3 vote. Justice Green wrote the majority opinion; Justice Hecht wrote the dissenting opinion.

• A two-fer: Retamco Operating, Inc. v. Republic Drilling Co., No. 07-0599. The Court reversed and remanded to the trial court. Justice Green wrote the opinion for a unanimous Court. And in the related case of Retamco Operating, Inc. v. Douglas B. McCallum, LLC, No. 08‑0405, the Court issued a short per curiam reaching same judgment “[f]or the reasons stated” in the main opinion.

The Court also granted three mandamus petitions in per curiam opinions without the need for oral argument:

• In re Bank of America, N.A., No. 07-0901 (per curiam).

• In re Joanne Lovito-Nelson, No. 08-0482 (per curiam)

• In re Jindal Saw Limited, Jindal Enterprises LLC, and Saw Pipes USA, No. 08‑0805 (per curiam)

Dissent from a Denial of Review in a Medical-Malpractice Expert-Report Case

The Court denied the petition for review today in Jerry Gurkoff, D.O. v. Jersak, No. 08-0398, but two Justices joined an opinion dissenting from the Court’s denial of review.

Three Petitions Granted for Oral Argument

The Court granted three petitions. Two were set for argument on March 31, 2009, filling out that argument day:

• American General Finance, Inc. v. Kyle Allen, No. 08‑0110. DB

• Myrad Properties, Inc. v. Lasalle Bank National Association, No. 08‑0444. DB

No argument date has been set for the third petition granted today:

• Texas Comptroller of Public Accounts v. Attorney General of Texas and the Dallas Morning News, Ltd., No. 08‑0172. DB

  This is an open-records case about whether the Comptroller must release a database linking the names of state employees to their exact dates of birth. It was mentioned briefly on this blog here and here.

In this holiday-shortened week, there was little activity on the weekly order list. The Court did not issue any opinions or grant any petitions.

The Supreme Court of Texas issued four opinions with this week’s order list.

The Court also granted oral argument in nine cases, filling out its early March argument sitting.

Today’s Opinions

As time allows, I will post more thoughts about some of these cases.

• Pine Oak Builders, Inc. v. Great American Lloyds Insurance Co., No. 06-0867. (DB) The Court affirmed in part and reversed in part. Justice Willett wrote for the Court.

• In re Labatt Food Service, L.P., No. 07-0419. (DB) The Court granted the petition for mandamus. Justice Johnson wrote for the Court.

• Old Farms Owners Association, Inc. v. Houston Independent School District, Inc., No. 07-0924 (per curiam). (DB) Without hearing oral argument, the Court reversed the court of appeals and reinstated the trial court’s judgment.

• In re Gayle E. Coppock, No. 08-0093. (DB) The Court granted the petition for a writ of habeas corpus and set aside the trial court’s order of contempt. Justice O’Neill wrote for the Court.

Nine Cases Set for Argument, Filling the Early March Sitting

The Court also set nine cases for argument. Seven were petitions for review, one was a petition for mandamus, and one was an attorney disciplinary appeal.

To see the cases, click through…

The Texas Supreme Court did not issue any opinions or grant review in any new cases in this week’s order list.

Next week, the Court has scheduled two conference days so that the Justices can discuss and vote on pending petitions. The results of that conference should be reflected in next week’s Friday order list.

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

The Court has two arguments set next Tuesday. Yesterday, the Court granted a motion for amicus curiae to participate in one of those cases.

The last few weeks on my blog have been almost as quiet as at the Court. I have an update that will be rolled out soon. I suspect that the Court also has plenty of opinions in the pipeline, especially with the light argument schedule this spring.

With today’s order list, the Court decided one case — In re Mary Louise Watkins, M.D., No. 06-0658.

This is yet another case about early appellate review of expert reports under the 2003 med-mal-reform law.

And this one provoked an interesting fight on the Court. The case sat on the Court’s submarine docket for over two years — the last merits brief in the case was filed on January 8, 2007, and the Court never set the case for oral argument.

The Court today agreed 9-0 that it could not reach the merits of the case — but other disagreements still sparked three concurring opinions.

Continued…

With today’s order list, the Texas Supreme Court issued one corrected opinion. That opinion, like the Court’s order earlier in the week about IOLTA accounts, concerned interest rates.

The corrected opinion replaces the former majority opinion in Columbia Medical Center of Las Colinas, Inc. v. Hogue, No. 04‑0575 (DB).

In 2003, as part of a tort reform package, the Texas Legislature lowered the interest rate that accrues on unpaid judgments (what lawyers call “pre- and post-judgment interest”). The Court’s original opinion had suggested that these lower interest rates might apply to judgments signed in the summer of 2003. The Court’s corrected opinion issued today makes clear that the interest rate change only affects judgments signed after September 1, 2003. (( The Court has provided this redline comparing the old and new versions of the opinion:

House Bills 2415 and 4 lowered the floor interest rate to five percent from ten percent, and the ceiling interest rate to fifteen percent from twenty percent in subsections (c)(2) and (c)(3), respectively, of Texas Finance Code § 304.003, effective June 20, 2003 and September 1, 2003. Act of June 2, 2003, 78th Leg., R.S., ch. 676, § 2(a), 2003 Tex. Gen. Laws 2097; Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 6.04, 2003 Tex. Gen. Laws 862, 899. See also BIC Pen Corp. v. Carter, 251 S.W.3d 500, 510 (Tex. 2008). The amendments applied to final judgments that are “signed or subject to appeal on or after the effective date of this Act.” § 2(a), 2003 Tex. Gen. Laws 2097; § 6.04, 2003 Tex. Gen. Laws 862. The trial court signed the amended final judgment in this case on December 3, 2002, before eitherthe effective date. However, Columbia Medical argues that the amendments apply because the case was “subject to appeal” on or after the amendments’ effective dates. ))

The Court also granted a motion by the State of Texas to participate as amicus curiae in a Texas Tort Claims Act case being argued next month, City of Waco v. Kirwan, No. 08-0121 (DB)

The Court issued opinions in four cases today, set one other case for argument, and issued a slew of other orders.

Opinions

• Graber v. Fuqua, No. 05‑0303.

  In the spirit of recent U.S. Supreme Court cases dealing with the scope of federal preemption of state tort claims, today the Texas Supreme Court stepped into the arena. This case asked whether a state malicious prosecution claim was preempted by the Bankruptcy Act if the conduct in question began with an adversary proceeding related to a pending federal bankruptcy.

  The Texas Supreme Court split 5-4, with the majority holding against preemption. Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice O’Neill, and Justice Johnson joined. The majority reasoned that, in general, state malicious prosecution claims are permitted even if they concern litigation conduct in federal district court. With that starting point, the Court noted Congress’s silence about whether the Bankruptcy Act was meant to have more preemptive effect of such claims. For that reason among others, the Court concluded that Congress did not mean to have a broader preemptive effect here.

  The dissent argued that federal bankruptcy law “occupied the field” such that state law could not regulate how bankruptcy adversary proceedings were conducted. The opinion was delivered by Justice Wainwright, joined by Justice Brister, Justice Medina, and Justice Willett.

• Badiga v. Lopez, No. 05‑0801.

  This is yet another case about the 2003 medical-malpractice-reform statute designed to streamline such claims (and to prevent many from being filed by front-loading the plaintiff’s costs and reducing possible damages). Today’s decision concerns a lawsuit filed in the very first days of that statute, back in October 2003. And it concerns a decision made by the trial court in the spring of 2004.

  The majority‘s summary is enough:

  The Civil Practice and Remedies Code requires a health care liability claimant to serve expert reports on providers within 120 days after filing suit. If a claimant does not do so, the trial court “must grant” the provider’s motion to dismiss the claim, and the provider may appeal from the court’s failure to do so. If the claimant’s report is timely but deficient, the trial court may grant a single thirty day extension to cure the deficiency, and the order granting that extension may not be appealed. We decide today whether a provider may immediately appeal when a trial court both denies a motion to dismiss and grants the claimant a thirty day extension, even though no expert report was timely served. We conclude that the statute permits such an appeal.

  This was a 7-2 decision. The majority opinion was delivered by Chief Justice Jefferson, joined by Justice Hecht, Justice O’Neill, Justice Wainwright, Justice Green, Justice Johnson, and Justice Willett.

  The dissent was delivered by Justice Brister and joined by Justice Medina. The dissent argued that the Court’s decision today cannot be squared with its decision last year that interlocutory appeal was not permitted if a plaintiff filed a deficient report. The dissent rejected the idea that there was any difference between a “deficient” and a “missing” report, at least for purposes of the statute.

  I suppose the lesson for the tort bar is … File something by the deadline that at least has the form of an expert report.

• In re International Profit Associates, Inc., No. 08‑0238 (per curiam)

  In a per curiam opinion, the Court granted mandamus relief to enforce a forum-selection clause. Along the way, the Court explained (1) why one party’s delay in seeking this relief in the trial court did not equitably prevent it from seeking mandamus relief; (2) that these claims were within the scope of the clause because, even though they were tort claims not contract claims, they were about the subject matter of the contract; and (3) the record did not show fraud.

• In re Department of Family & Protective Services, No. 08‑0524

  Again divided 5-4, the Court ultimately dismissed a parental-rights-termination action brought by the Department when the clock on such actions ran out in the district court. The majority concluded that dismissal was mandated by the statute regardless of how the Justices might feel about the merits. The dissenters argued that the Court should be more concerned with the practical consequences of its decision when construing the statute.

  The majority opinion was delivered by Justice Johnson (joined by the Chief Justice and Justices Wainwright, Green, and Willett). It held that dismissal was mandated by Texas Family Code § 263.401. In particular, § 263.401(b) makes dismissal mandatory after one year unless the trial court makes a set of findings that explain why an additional 180 days is warranted.

  The wrinkle here is why the case lingered so long on the trial court’s docket — the trial court actually granted a motion for new trial requested by the mother. The clock expired after that grant of new trial. The majority held that the statute still applied and that dismissal was still mandatory. (The majority explained that the trial court could still have had 180 days in which to conduct a new trial, had it made the required findings.)

  Justice Hecht’s dissent (joined by Justice Brister) argued that the Court should have, first, decided what the practical effect of its decision to dismiss on these procedural grounds would be: “can the Department simply refile the same suit, retain custody of the child, and continue on as before, essentially unaffected?” If so, Justice Hecht reasoned, this whole appeal was a waste of time that delays an ultimate resolution on the merits. And Justice Hecht would have held that the Department could refile in those circumstances, so long as their claim was still supported by evidence. (He also would have held that dismissal was not warranted at all under the statute.)

  Justice Brister’s dissent (joined by Justices Hecht, O’Neill, and Medina) advanced a procedural reason why the mandamus should fail, regardless of whether the case should have been dismissed. It argued that the mother cannot complain on appeal about a new trial that she requested. This is invited error, the opinion reasons, and the Court should have been barred from reviewing it. In addition, Justice Brister’s dissent argued that the Court should have been more concerned about the consequences of its statutory construction rather than just the statute.

The new grant

The new grant is a two-fer. Back on June 20th of last year, the Court denied this petition for review. After that, a seemingly endless stream of amici filed letters or briefs in support. The Court requested full briefing on the merits while the motion for rehearing was still pending.

In today’s order list, the Court both granted rehearing to bring that petition back to life and also set it for the February argument calendar (which still has plenty of room). That’s some turnaround.

• Dealers Electrical Supply Co. v. Scoggins Construction Co., No. 08-0272 (DB)

Among the other orders:

• On the eve of the 81st Legislature, the Court denied review in Hendee v. Craddick, No. 08-0452 (DB), which was a challenge to how the previous legislature computed the baseline against which Texas measures the constitutionality of its budget. Dry stuff, but surely something the Legislature is glad not to worry about as it starts the same process again.