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Today’s order list has been posted. The Court did not grant any new petitions or resolve any submitted cases.
Interestingly, the Court did issue five per curiam opinions today — each a short statement that the Court’s denial of review does not signal the Court’s agreement with the court of appeals about the constitutionality of Texas Family Code § 263.405(i).
Tags: Order Lists
Today’s order list was fairly quiet. The Court did not issue any opinions or grant review in any new cases.
Tags: Order Lists
With today’s order list, the Texas Supreme Court issued merits opinions in four pending appeals.
The Court did not add any additional cases to its argument calendar for the fall. It looks unlikely that the Court will do that before its next scheduled conference in August.
Lopez, a former employee of the City of Waco, brought a Whistleblower Act claim alleging that he had been retaliated against for reporting a violation of a discrimination policy. The City argued that Lopez should instead have brought suit under the Texas Commission on Human Rights Act (the CHRA) and that, having failed to do so, his claim was barred.
In deciding how to reconcile these two statutes, the Texas Supreme Court focused on the policies served by the two acts, concluding that the best way to give effect of the Legislature’s intent was to treat the CHRA as the more “specific” statute that would control over a contrary “general” statute. The Court concluded that any other result would “render … utterly meaningless” some of the “details provisions” of the CHRA crafted by the Legislature:
If a public employee had the option to pursue a retaliation claim under either the Whistleblower Act or the CHRA, pursuit of the former would render the limitations in the CHRA utterly meaningless as applied to public employees. Such breadth must not be permitted to defeat the CHRA’s comprehensive statutory scheme. We do not believe the Legislature intended such a result, given the CHRA’s detailed provisions and the efforts undertaken by its drafters to address various forms of discrimination and to make that statute conform with parallel federal employment discrimination laws.
The Court rejected the argument that the Whistleblower Act should control because it was the later enacted of the two, concluding that “there is no indication that the Legislature intended to allow the Act’s general procedures and remedies to supplant the particularized procedures and remedies provided in the CHRA.”
Because Lopez’s complaints concerned conduct that fell squarely within the CHRA and because Lopez acknowledged that he had not timely followed the CHRA’s procedures, the Texas Supreme Court concluded that any amendment of his pleadings would be futile. The Court thus dismissed Lopez’s action for failure to plead a claim that fits within a waiver of immunity.
and the related appeal, David J. Sacks, P.C. v. Haden, No. 07-0487 (per curiam) [decided without oral argument under Rule 59.1]
This was a dispute over appellate attorneys fees. Haden and his company hired David J. Sacks, P.C. to represent them in a Fifth Circuit appeal. The written agreement showed an agreed-upon rate of $200 per hour (reduced from $300) and an initial retainer of $5000 (reduced from $10,000).
The firm ultimately invoiced Haden for a total of $40,304.71 covering both an appellant’s brief and a reply brief. One of the invoices explained, “‘given the state of the record as we were eventually able to retrieve from the Court, putting together winning arguments took considerabl[y] more time than I anticipated after giving the cursory review of the initial documents.’ The letter also said, ‘We are committed to excellence and will generally spend whatever time is necessary to develop a winning brief given the state of the record. Sometimes that gets a little more expensive than anticipated.'”
Haden refused to pay more than an additional $5000, “maintaining that [he] had ‘made it clear’ that $5,000 was all he could afford to spend. Sacks disputed Haden’s assertions and filed this lawsuit.”
The district court granted summary judgment to the law firm. The court of appeals reversed, holding that there was a fact question as to whether there was a meeting of the minds about this fee agreement at all.
The Texas Supreme Court held that the written fee agreement could not be contravened by an assertion that an oral cap on fees had been set: “We have never held that an open-ended hourly fee agreement will be enforced only if it expressly states there is no cap on fees, and we decline to do so now. If a contract is unambiguous, the parol evidence rule precludes consideration of evidence of prior or contemporaneous agreements unless an exception to the parol evidence rule applies.”
The Court therefore reversed and rendered judgment in the law firm’s favor. In a related appeal, the Court also sent back to the court of appeals the question of whether the law firm’s post-judgment enforcement actions were proper.
I’m sure that other bloggers will have more to say about the relative merits of fixed versus hourly versus contingent fees.
The first sentence of the facts: “Sells is an eighty-two year old woman who has suffered four strokes in the last five years.” She owned several parcels of land, and a dispute arose over whether she had given full power of attorney to another landowner to actually sell her land or merely to list it.
Her daughter appeared on her behalf with an answer to the suit, but (it turns out) her daughter was not an attorney. The trial judge “halted the proceedings to warn Tates that forging documents and practicing law without a license were both crimes and to inform Tates of her Fifth Amendment privileges. The trial judge then swore her in as a witness and allowed Drott’s attorneys to question her.” The trial judge then struck the answer.
Because no answer for Sells was on file, and because only her daughter had appeared, the trial court rendered a default judgment against her. The Texas Supreme Court reversed, holding that because the answer was facially sufficient to avoid default, Sells had made an appearance in the case and thus was entitled to notice before further proceedings, such as taking evidence on disputed questions of fact over whether that answer should be struck.
Assuming that Drott produced evidence that Sells had filed defective answers, in that they were signed on her behalf by her ‘next friend’ daughter, Sells was entitled to an opportunity to prove that such defects were not true or not fatal or to argue that she had a right to cure the defects, if possible. The trial court erred in granting a default judgment against her without the requisite notice.
Tags: Order Lists
In today’s order list, the Court issued four decisions and granted two new cases to be argued this fall.
I’ll post updates as I have summaries.
Two majority opinions by Justice Medina and two per curiams in mandamus cases:
Pleasant Glade Assembly of God v. Schubert, No. 05‑0916 The Court reverses the court of appeals’ judgment and dismisses the case. Justice Medina delivered the opinion of the Court, in which Justice Hecht, Justice O’Neill, Justice Wainwright, Justice Brister, and Justice Willett joined. Chief Justice Jefferson delivered a dissenting opinion, in which Justice Green joined, and which Justice Johnson joined in part. Justice Green delivered a dissenting opinion. And Justice Johnson delivered a dissenting opinion.
JCW Electronics, Inc. v. Garza, No. 05‑1042. The Court reverses the court of appeals’ judgment and renders judgment. Justice Medina delivered the opinion of the Court. Chief Justice Jefferson delivered a concurring opinion, in which Justice O’Neill joined.
In re Chambless, No. 07‑0767 (per curiam). Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion
In re Office of the Attorney General, No. 08‑0165 (per curiam). Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion
State of Texas v. Lueck, No. 06-1034.
City of Dallas v. Greg Abbott, No. 07-0931
Tags: Order Lists
In today’s order list, the Texas Supreme Court issued two decisions in mandamus cases and accepted a third mandamus petition for oral argument this fall.
Both of today’s mandamus cases were decided under Rule 52.8(c) without hearing oral argument, both were per curiam opinions, and both resulted in the mandamus relief sought: (( Both were also “submarine docket” cases, with In re Fleetwood Homes fully briefed on the merits for a little more than sixteen months and In re Lyon Financial Services fully briefed for just over six. ))
This is another case applying Perry Homes. The Court today held that a home builder had not waived the arbitration clause in a contract merely by engaging in early pretrial proceedings. The pivotal passage:
Instead, the question here is whether Fleetwood impliedly waived arbitration by failing to pursue its arbitration demand for eight months while discussing a trial setting and allowing limited discovery. We have already answered that question “No.” In EZ Pawn Corp. v. Mancias, we held a party had not waived arbitration by filing an answer, discussing a docket-control order, sending written discovery, noticing a deposition, and agreeing to postpone a trial setting. 934 S.W.2d 87, 90 (Tex. 1996). Gulf points out correctly that the movant in EZ Pawn had not yet “discovered” the arbitration clause until after these actions had already taken place. Id. at 89. But our opinion was based on the nonmovant’s failure to show any prejudice, id. at 90, a requirement we recently reaffirmed. See Perry Homes
Along the way, the Court also spoke to whether an arbitration agreement was unconscionable because it contained a fee-shifting clause that would allow a prevailing defendant (not merely a prevailing plaintiff) to recover attorneys fees. The Court framed the question of unconscionability as whether a clause makes an agreement too “one-sided”; it then held that a fee-shifting provision that extends both parties the chance to recover fees “surely make [these agreements] less so.”
In re Lyon Fin. Servs., Inc., No. 07‑0486 (per curiam), from the Thirteen Court of Appeals
This mandamus petition asked the Texas Supreme Court to enforce a particular forum-selection clause, and the Court ultimately held that mandamus relief was appropriate.
What was interesting about this clause was that it was literally one-sided: It bound McAllen North Imaging, Inc. (“MNI”) to bring suit only in Pennsylvania, while Lyon remained free (at its discretion) bring suit elsewhere. (( A two-sided forum-selection clause reduces the importance of the “race to the courthouse” by forcing both sides to go to the same courthouse and providing certainty about which state’s procedural laws will apply; this clause gives one side the right to choose a favorable forum while forcing the other into a pre-selected forum. )) It appears this was important to Lyon (the lender in these agreements) because Pennsylvania does not permit a corporation to assert usury. MNI argued that forcing it to sue in Pennsylvania could deprive it of a claim.
The Court walked through the factors it had set out in In re AIU and concluded that this clause was enforceable. Along the way, the Court rejected MNI’s arguments that the clause was overreaching or unfair (Hernandez is the president of MNI):
In Hernandez’s affidavit, he claimed that he was not able to obtain any legal advice, he does not have formal business school training, he was unaware of the “contract provision when [he] signed it,” and that “the documents” were presented to him on a “take-it-or-leave-it” basis. But a bargain is not negated because one party may have been in a more advantageous bargaining position. Rather, we consider whether a contract results in unfair surprise or oppression. The forum-selection clause in the Restructuring Agreement was in all capital letters and was similar to the clause in the Master Agreement. Additionally, parties to a contract have an obligation to protect themselves by reading what they sign and, absent a showing of fraud, cannot excuse themselves from the consequences of failing to meet that obligation. Hernandez’s statements do not evidence overreaching or trickery by Lyon. They show a transaction where Lyon offered to do business on a specified basis and MNI accepted. [citations omitted]
This is a case about medical-malpractice discovery. Here, the patient sued some physicians but did not sue another. The question is whether the defendant physicians can get information about the patient’s medical condition by merely asking the other doctors (“ex parte” is the language used here) or whether they must follow a more formal process that lets the courts decide which information might be relevant and which might still be shielded by physician-patient privilege (such as information about entirely unrelated conditions).
The trial court issued an order prohibiting these “ex parte” communications, and the court of appeals held that it was within its discretion in doing so.
Tags: Order Lists
In this week’s order list, the Court decided four new cases, granted rehearing and changed some language in an earlier opinion from February, selected two more cases to be argued this fall, and dismissed a previously granted petition pursuant to settlement.
The Court granted rehearing and revised its majority opinion in Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., No. 03‑0647. I started to write about a procedural wrinkle in that case here, but it’s complicated enough to warrant a separate post.
The most divided case of the day was this premises-liability case brought against a landowner by the employees of an independent contractor hired to do work on the property. By a 5-3 vote (Justice O’Neill did not sit), the Court held that the landowner had no duty to warn that employee of the danger from not having handrails on a ramp. The Court reversed and rendered judgment.
Justice Brister delivered the opinion of the court, in which Justice Hecht, Justice Wainwright, Justice Medina, and Justice Willett joined. Justice Green delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Johnson joined.
Frymire Eng’g Co. v. Jomar Int’l, Ltd., No. 06‑0755.
In a unanimous opinion authored by Justice Willett, the Court recognized that the doctrine of equitable subrogation could be applied to let subcontractors step into the shoes of their contractor to bring a product-liability claim:
Over a century ago, we declared that “the courts of no state have gone further” than Texas “in applying the doctrine of subrogation” because “our decisions recognize the doctrine . . . to its fullest extent.” Today’s case requires us to decide whether this doctrine applies to a subcontractor seeking to recoup contractual payments from alleged third-party tortfeasors.
The Court held that it did, reversed the court of appeals’ judgment, and remanded the case to that court.
Leland v. Brandal, No. 06‑1028.
The Court has recently issued a number of opinions about how to challenge expert reports in medical-malpractice cases. Today, the Court addressed what happens back in the trial court after an expert report is found to be inadequate on appeal.
The Texas Supreme Court held, by an 8-1 vote, that “when elements of a timely filed expert report are found deficient, either by the trial court or on appeal, one thirty-day extension to cure the report may be granted.” See Tex. Civ. Prac. & Rem. Code §74.351.
The point of contention was what happens when this defect is determined for the first time on appeal — when the trial court held the report to be adequate (and thus did not grant an extension of time) but the court of appeals disagreed. Justice O’Neill wrote for the Court, joined by seven other Justices, that the party would have a chance to seek a thirty-day extension.
Justice Brister dissented and would have held that litigants should not be given a chance to cure when their expert reports are found deficient for the first time on appeal.
Kao Holdings, L.P. v. Young, No. 07‑0197
This is a case about what it means to sue a partnership. In this case, Young sued Kao Holdings, L.P. and served those papers on William Kao, its general partner. The suit did not separately name Kao as a defendant. Neither Kao Holdings nor Kao answered the suit, and Young obtained a default judgment against both.
The court of appeals held that a default judgment against Kao himself was possible because of his status as a partner.
The Texas Supreme Court modified that aspect of the court of appeals judgment, holding that judgment against Kao individually was not proper because he was not personally named as a defendant. The Court left intact the court of appeals’s disposition of the other issues, which remanded the case to the trial court for re-computation of damages.
Justice Hecht delivered the opinion of the Court. The case was decided under Rule 59.1 without oral argument, marking the third time in the past few weeks that the Court has used that rule to issue something other than a per curiam opinion.
These will add to the Court’s argument calendar this fall, with argument dates to be announced later.
In re James Allen Hall, No. 07‑0322, a petition for writ of mandamus out of Bexar County and the San Antonio Court
Just like last week, it’s two steps forward, one step back in accumulating oral arguments for the fall calendar. The Court chose the two cases listed above for argument, but (like last week) another previously granted case was dismissed pursuant to settlement.
That case is City of Lubbock v. Nunez, No. 07-0655, in which the petition for review had been granted on April 18, 2008. (Docket sheet)
Tags: Order Lists
In today’s order list, the Court decided three cases and also dismissed as moot the pending Clear Channel mandamus petition.
Two of them are medical-malpractice expert cases citing the Court’s recent In re McAllen Medical Center — to reach opposite conclusions.
In distinguishing In re McAllen Medical Center, the Court noted that it was weighing the possible slight harms from a 30-day extension against the much longer delays that would be involved if it permitted appellate scrutiny of every 30-day extension a trial court might choose to grant under this statute. “[T]he harm involved is a 30-day delay. By contrast, this original proceeding has now delayed the case for four years. … By any measure, the benefits to mandamus review of a 30-day extension are outweighed by the detriments.”
In re Methodist Healthcare System of San Antonio, Ltd., No. 05-0575. The hospital objected to the plaintiff’s medical-malpractice expert report, and the trial court refused to dismiss. When the hospital sought mandamus from the court of appeals, the court of appeals denied on the ground that the hospital had “an adequate remedy by appeal.” In this per curiam opinion, the Texas Supreme Court granted the writ of mandamus “for the reasons stated in In re McAllen Medical Center.” Rather than reach the merits of the hospital’s arguments, the Court “instruct[ed] the court of appeals to withdraw its previous opinion and reconsider in light of our opinion in McAllen.”
FKM Partnership, Ltd. v. Board of Regents of the University of Houston, No. 05-0661. Justice Johnson wrote for the Court. He was joined by all of the Justices other than Justice Willett, who wrote a separate opinion concurring in part and dissenting in part.
I’ll write more about FKM in a separate post.
The Court added these two cases to its argument schedule for the fall:
Smith v. Patrick W.Y. Tam Trust, No. 07-0970, from the Fifth Court of Appeals. On a commercial lease, the plaintiff sued for $215,000 and received a jury verdict for $65,000. In addition, the trial court awarded attorney’s fees of $47,000.
The petition argues that this amount was “unconscionable” and unreasonable because it would be seventy percent of the amount of the verdict. The petition suggests that the court of appeals should have expressly evaluated the reasonableness of the award under the framework set out in Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812 (Tex. 1997).
It’s a simple argument — and the petition for review doesn’t belabor it, taking up only five pages from the Statement of Facts through the Prayer.
Tags: Order Lists
In re Zandi, No. 07-0919 (per curiam). Through a per curiam opinion, the Court granted a writ of habeas corpus to release a person held on criminal contempt charges for failure to comply with a child-support order. That order imposed conditions that Zandi would have to meet or face confinement The Court ultimately held that those provisions were not clear enough to meaningfully apprise Zandi of what he would be required to do to comply and thus avoid confinement.
The Court also granted two new petitions for review. The dates for oral argument have not yet been set.
Spectrum Healthcare Resources, Inc. v. McDaniel, No. 07-0787. This case is about whether a docket-control agreement between the litigants in a parallel federal court case acted to extend the time to serve medical-expert reports in a Texas state case.
In addition, the Court dismissed without prejudice two long-pending petitions for mandamus relief in cases challenging medical-expert reports. On the order list, the Court noted that the petitions had failed to comply with Texas Rule of Appellate Procedure 52.3(e), which generally requires that petitions for mandamus relief first be filed in the intermediate court of appeals. The petitions appears to be related: In re McAllen Medical Center, No. 06-0098, and In re Starr County Memorial District, No. 06-0105.
What’s a little odd is the timing. Both of these petitions had been pending since early 2006. In each, the Court requested a response in March 2006, and that response was filed in April 2006. In neither case had the Court yet requested full briefing on the merits.
It’s possible that the Rule 52.3(e) issue was simply overlooked. But given the significant number of other pending medical-malpractice cases on the Court’s submarine docket, the timing of these dismissals may suggest that the Court is actively working on opinions in some of those other cases as well.
Tags: Order Lists
Cases in the News