This week’s order list was also quiet, with no opinions issued and no new petitions granted.

Election Day is November 4th. The Court’s next argument sitting begins on Wednesday, November 12th.

Today, of course, is both Halloween and the last day of early voting. The word is out that you cannot wear political costumes to the polling places lest you be charged with electioneering. The loyal readers of this blog might have to put away their Court-themed costumes until later.

This week’s order list was relatively quiet, with no opinions issued and no new petitions granted.

Election Day is November 4th. The Court’s next argument sitting begins on Wednesday, November 12th.

The Court issued one opinion with today’s order list.

That case is DiGiuseppe d/b/a Southbrook Development Co. v. Lawler, No. 04-0641.

In this 5-4 decision, the tiebreaking vote was cast by Justice Alan Waldrop of the Austin Court of Appeals, sitting by designation. His majority opinion was joined by Justices Hecht, Wainwright, Brister, and Willett. A dissenting opinion by Justice Green was joined by Chief Justice Jefferson, Justice O’Neill, and Justice Johnson. (Justice Medina did not sit on this case.)

The underlying dispute is about a real estate deal that broke down. [Read more →]

The Court issued one revised opinion and granted two new petitions for review in this week’s order list.

Revised Opinion

The revised opinion was in Kerlin v. Concepcion Sauceda, No. 05-0653, issued on August 29th (the Court’s big end-of-term order list).

Interestingly, this revised opinion was issued without any pending motion for rehearing. The Court’s original decision did prompt an amicus curiae brief from the State of Texas (filed on September 15th). But there was no formal request from a party for a different outcome or any changes in the opinion.

The new opinion makes one substantive change. The case involved whether a statute of limitations is tolled while a defendant is physically out of the state. The question was how Texas’s longarm statute affects that tolling — if a defendant could be sued under the longarm statute, is there a need to toll limitations?

The sentence summarizing the Court’s conclusion used to read:

But if a nonresident’s contacts with the state are sufficient to afford personal jurisdiction, as it is undisputed Kerlin’s were, then we can discern no reason why a nonresident’s “presence” in this state would not be established for purposes of the tolling statute.

In the new opinion it reads:

But if a nonresident‘s is amenable to service of process under the longarm statute and has contacts with the state are sufficient to afford personal jurisdiction, as was the case with it is undisputed Kerlin‘s were, then we can discern no reason why a nonresident’s “presence” in this state would not be established for purposes of the tolling statute.

The Court has thus made clear that, if Texas’s longarm statute does not reach a particular defendant, the tolling argument may still be available.

New Grants

• City of Desoto v. White, No. 07‑1031, from the Dallas Court. Set for argument on December 11, 2008. (DocketDB)

• Galbraith Engineering Consultants, Inc. v. Pochucha, No. 07-1051, from the San Antonio Court. Set for argument on December 11, 2008. (DocketDB)

The Court did not issue any opinions or grant any petitions in this week’s order list.

But the Court did resolve the motion filed by the state legislators who sought amicus argument in Entergy Gulf States v. Summers, No. 05-0272. The Court denied the motion for argument time. The wording of the order suggests that the legislators sought additional argument time, not just to share in a party’s argument time — something that is only rarely granted. [Update: This is indeed what they sought in this motion..]

The Court’s brief notation on this order summarized its policy on granting argument time to amici this way:

Pursuant to Texas Rule of Appellate Procedure 59.6, upon motion to the Court and with a party’s consent, the Court will grant amicus curiae leave to share up to five minutes of the twenty minutes allotted to that party for oral argument.

Added after reading the motion: The legislators’ motion had asked the Court to suspend that rule and to grant them oral argument even though they did not have the consent of a party to share time. The motion compared this to judges appearing before legislative committees, saying “[i]t is the hope of amici that this Court will extend the courtesy of separate time to argue so that they and this court can engage in a fruitful discussion of the parameters of the Court’s authority to interpret legislative enactments.” The motion does not say how that discussion might differ from the legislators’ amicus briefing from December, which said that the Court’s original decision was so wrong that it “violated the separation of powers doctrine” and was thus “void.”

Race-Based Peremptory Strikes in Civil Cases

• Davis v. Fisk Electric Co., No. 06‑0162. This case about race-based peremptory jury challenges was the only divided opinion with today’s orders. Justice Jefferson wrote the majority opinion for the Court, joined by seven Justices. Justice Brister wrote a concurrence, joined in part by Justice Medina.

  The majority relied on Miller-El v. Dretke, 545 U.S. 231 (2005) for much of its analysis. Still, in explaining its holding in this case, the majority concluded that it was not necessary to show a historical pattern of race-based strikes where the record still showed “a statistical disparity” in how jurors were treated based on race as well as “unequal treatment” or jurors who were “comparable” by other measures.

  The majority stopped short, however, of ascribing discriminatory motives to counsel:

  We acknowledge that peremptory strikes, often based on instinct rather than reason, can be difficult to justify. Miller-El II, 545 U.S. at 252. The trial lawyer’s failure to do so here does not suggest personal racial animosity on his part. See, e.g., Antony Page, Batson’s Blind Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. REV. 155, 160-61, 184 (2005) (noting that “research has compellingly demonstrated the existence of unconscious race- and gender-based stereotyping”). A zealous advocate will seek jurors favorably inclined to his client’s position, and race may even serve as a rough proxy for partiality. See, e.g., Batson v. Kentucky, 476 U.S. 79, 139 (1986) (Rehnquist, J., dissenting) (noting that factors like race are often a “proxy” for potential juror bias). But whatever the strategic advantages of that practice, the Constitution forbids it.

  The concurrence was critical of the majority’s analysis of the record, as well as its overall approach. In the end, Justice Brister (joined in this part by Justice Medina) advocated ending the system of peremptory strikes:

  A majority of this Court could curb peremptory strikes today, as they stem entirely from our Rules of Civil Procedure. The reason we hesitate to do so is that lawyers are tenaciously protective of them, believing they can use these strikes to mold a favorable jury. Study after study has shown this belief to be unfounded. But even if it were true, that reason is not enough: “Peremptory strikes are not intended . . . to permit a party to ‘select’ a favorable jury.”

  I presume Justice Brister meant that the practice could be ended by rule-making rather than by the Court striking down its own rule of procedure as being unconstitutional. Batson cases have been relatively rare in the Texas Supreme Court, so this law may develop more through rules or legislative changes.

Mental Anguish Damages Upheld in a Child-Care Case

• Adams v. YMCA of San Antonio, No. 07‑0221 (per curiam). This is a negligent hiring suit brought against the YMCA by a child (and his parents) when a staff member abused the child. The court of appeals had overturned the jury’s award of mental anguish damages. The Texas Supreme Court reversed, holding that the evidence on this record did satisfy the test under Texas law to qualify as future mental-anguish damages. The Court reversed on that question and remanded the YMCA’s other arguments to the court of appeals.

Being Rich (or Poor) Is Not a Tort

• Reliance Steel & Aluminum Co. v. Sevcik, No. 06‑0422 (Brister, J.). The Court held that admission of the defendant’s corporate gross revenues ($1.9 billion per year) was itself harmful error that warranted reversal. The opinion explains that the plaintiff’s theory did not turn on the defendant’s resources, and goes on to express great skepticism that any negligence-based theory would benefit from evidence about the plaintiff’s or defendant’s financial resources.

Does the Appellee Have To Suggest a Remand To Preserve That Option?

• Martinez-Partido v. Methodist Specialty & Transplant Hospital, No. 06‑0611 (per curiam). The court of appeals held that it could not remand a case unless one of the two sides requested that remedy. Thus, because the appellee merely sought affirmance, the appellee could not complain when the appellate court later rendered judgment against him.

  The Texas Supreme Court disagreed, citing Texas Rule of Appellate Procedure 25.1(c). (( That rule provides that “the appellate court may not grant a party who does not file a notice of appeal more favorable relief than did the trial court except for just cause” (emphasis mine). )) The Court concluded that “a party seeking affirmance need not request the lesser included relief of remand.”

Takings: Impairment of Access … and Appellate Procedure

• State of Texas v. Dawmar Partners, Ltd., No. 07‑0548 (per curiam). In this takings case, the Court held that a landowner could not seek compensation for the diminished use of the remainder (non-taken portion) of a piece of property. The landowner had argued that, due to the taking of a strip of land for a new road, the access to their remaining land would be diminished in a way that prevented it from ever being used as commercial property. Instead, the landowner argued, the land could now only be used as residential property. The Texas Supreme Court ultimately rejected the argument that this sort of change in use could only be compensable if it were actually the result of a “material” dimunition in access. And, the Court found, this record did not show that was met.

  Still, the Court held that it could not render judgment for the State on this point because the State had only requested a remand for a new trial, not outright rendition.

  Because the jury’s award included noncompensable damages to the remainder, the State argues that we must remand the entire case for a new trial. … In this case, however, the compensation questions submitted to the jury were segregated between the compensable and noncompensable damages. As a result, a new trial is not necessary to remedy the erroneous award of severance damages. … However, because the State seeks only a remand from this Court, we must remand the severance damages issue to the trial court even though the record would otherwise support a rendition of a judgment in the State’s favor on that claim.

  At least on that question of appellate procedure, this case is a bookend with today’s decision in Martinez-Partido. This case teaches that, if you’re the appellant, you should make sure to ask for rendition if there’s any possibility you can obtain it. Martinez-Partido teaches that the appellate court can still remand even if the appellant doesn’t request it.

Rehearing: Small Changes in David J. Sacks, P.C. v. Haden

• *David J. Sacks, P.C. v. Haden*, No. 07‑0472 (per curiam) (on reh’g). The Court granted the motion for rehearing, changing its judgment to now remand the other issues to the court of appeals instead of impliedly rejecting them. The prior decision was reported here.

After several weeks of relative quiet, this week the Court met for its monthly conference. And this week’s order list included merits opinions in six cases (( It’s actually five new cases decided on the merits, one new opinion issued while granting a motion for rehearing, and one opinion issued explaining the Court’s denial of a rehearing in a petition for review. )) and four new cases set for oral argument this fall.

It’s hard to miss the coincidence between the conference and the volume of today’s orders. But it’s a little early to say if releasing the bulk of its opinions the week of a conference will become the Court’s pattern under its new calendar.

I’ll write about today’s merits decisions in my next post. For now, here are the other highlights from the order list:

Opinion on Denial of Rehearing

• Unauthorized Practice of Law Committee v. Nationwide Mutual Insurance Co., No. 05‑0130. Today the Court issued a per curiam opinion on denial of rehearing, explaining why it was denying review in this petition for review.
  

  The Committee argues in its motion for rehearing that the present case raises an issue not involved in American Home, namely, whether an insurer engages in the unauthorized practice of law by employing staff attorneys to represent its affiliates’ insureds. The Committee has argued on appeal in this case that even if an insurer may employ staff counsel to represent its own insureds, it cannot represent its affiliates’ insureds. The court of appeals rejected the argument on the grounds that there was no evidence that Nationwide provided legal services to insureds of “any entity other than the Nationwide group of wholly owned and controlled companies.” But because the trial court did not address the issue in its judgment, it cannot be considered on appeal. Tex. R. App. P. 25.1(c).

  The net effect is to hold open that question until some future case, without the misimpression that the Court’s denial of review is a rejection of the argument.

New Grants

• Spir Star AG v. Kimich, No. 07‑0340, from the First Court. Set for argument December 10th.

• Ashley v. Hawkins, No. 07‑0572, from the Ninth Court. Set for argument December 11th.

• Kappus v. Kappus, No. 08‑0136, from the Twelfth Court. Set for argument December 10th. This petition was granted after rehearing. The petition was actually denied on April 4th of this year and, during the rehearing process, the Court requested full briefing on the merits. This had been the Court’s longest-pending rehearing petition.

• In re Department of Family & Protective Services, No. 08‑0524. Set for argument November 12th.

This week’s order list was fairly quiet for court watchers. No new opinions, no new grants, and no other unusual orders.

Yesterday, the Court did issue an order denying the request made by Bob Barr for an order that would have immediately forced the removal of Obama and McCain from the Texas ballot. That petition remains pending, and the response to the petition is due September 22nd.