The Court issued two decisions (split into five opinions) and set no new cases for argument in today’s order list.

The cases decided were:

• Providence Health Center v. Dowell, No. 05-0386, consolidated with, Pettit v. Dowell, No. 05-0788, a set of medical-malpractice appeals out of the Waco Court.

• In re Team Rocket, L.P., No. 06-0414, a mandamus action about venue

I’ll have those summaries up shortly, and I will continue posting case summaries from last week’s busier order list.

The Texas Supreme Court issued six merits decisions with today’s order list, as well as a revised opinion in another case that was issued along with a denial of a motion for rehearing.

Updated: Just to clear up one possible confusion that may be afflicting some corporate readers or traders: This afternoon the Court wasis scheduled to hear oral arguments in the case In re Citigroup Global Markets, Inc., No. 08-0289, which is the pending Clear Channel merger litigation. In this morning’s order list, the Court issued a per curiam opinion disposing of a different case that happens to have the same caption — In re Citigroup Global Markets, Inc., No. 06-0886. (( In modern Texas appellate practice, mandamus actions are given the caption “In re…” and the name of the relator, the party seeking mandamus relief. The caption does not reflect the name of the person against whom relief is sought. For frequent litigants, this means an abundance of cases with the same caption. As you might imagine, the caption “In re State of Texas” has been used many, many times in the appellate courts since this rule change. )) You don’t get to take the afternoon off (and neither does the Court). The Court has granted the parties’ motion to abate that argument, however, so we’ll all have to wait a little while longer. The order reflecting the abatement was issued yesterday.

Summaries of today’s opinions will follow in separate blog posts.

The Court also took four three new cases today: It granted two new petitions for review — Smith v. O’Donnell, No. 07-0697, and Marks v. St. Luke’s Episcopal Hospital, No. 07-0783. And it “set for oral argument” the petition for writ of mandamus in In re Morgan Stanley & Co., No. 07-0665. Update: In addition, the Court also granted rehearing of a petition for review that it had previously denied in City of Pasadena v. Smith, No. 06-0948. That case will now also be decided on its merits.

Despite the nomenclature “set for oral argument,” (( For petitions for review that percolate up through the normal appellate process, the Court “grants the petition” to indicate that it has accepted a case for review on the merits. But for petitions for mandamus, the Court uses the different (and sometimes slightly confusing) terminology that it has “set [the mandamus petition] for oral argument”. )) the Court has not yet set argument dates for these four three cases or for nine other pending cases in which review has already been granted. Today’s granted cases will probably be argued in late September or early October.

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

The Court issued two opinions with today’s order list, the long-discussed case Perry Homes v. Cull and a slightly revised opinion on rehearing in Igal v. Brighstar Information Technology Group, Inc..

More details follow the break.

[Read more →]

It was a quiet order list from the Texas Supreme Court this week, with just a handful of petition denials. No new cases were set for argument, and no other extraordinary orders were issued.

If you’re curious, the most recent weekly order list without at least one new opinion was handed down on March 14th. In the four order lists between then and now, the Court decided 39 cases with opinions.

The Texas Supreme Court issued six decisions with today’s order list.


Medical-malpractice sanctions

Three of today’s six decisions involved the question whether a defendant in a medical-malpractice suit can immediately appeal the trial court’s refusal to award sanctions when the plaintiffs nonsuit a case. The Court ultimately held that, yes, such an order was subject to immediate appeal. Although the plaintiffs can nonsuit a claim, that does not also extinguish a claim for affirmative relief by a defendant — and the Court classified this type of sanctions motion by a defendant as a claim for affirmative relief. Justice Wainwright wrote for a unanimous Court in Villafani v. Trejo, No. 06-0501. The Court issued per curiams applying the holding of Villafani to similar fact patterns in Barrera v. Rico, No. 05-0928, and Regent Care Center of San Antonio II, L.P. v. Hargrave, No. 06-0717.

Federal preemption of state tort claims

• BIC Pen Corp. v. Carter, No. 05-0835. Justice Medina wrote the unanimous opinion for the Court. (Justice Green was not sitting.)

  The Court held that federal consumer-protection law implicitly established both a ceiling and a floor for safety, displacing the role of state tort law in establishing the duty rules applicable to cigarette lighters. The Court thus reversed the court of appeals and rendered judgment on the question whether this was a valid design-defect claim.

  The Court did not render, however, on the manufacturing-defect claim. The Court held that, while the federal scheme might preempt claims about the design of a product, it did not thereby exempt defendants from liability from claims that their actual manufacture of the product unsafely deviated from that design. The Court remanded so the court of appeals could consider the manufacturing-defect claim.

  And, although it was not yet affirming any damage awards, the Court did also reach the question of what interest rate should apply to the award. While this question has a narrow and somewhat uncertain impact on these parties (and the parties devoted fewer than four combined pages of merits briefing to the issue), the Court’s reasoning should be studied carefully by those with other cases that may turn on the effective date of statutes:

  The Texas Constitution provides that once a bill becomes law by being passed by the Legislature and signed by the Governor, it generally does not take effect until ninety days after the adjournment of the session in which it was enacted. TEX. CONST. art. III, § 39; id. art. IV, § 15. However, a bill may take effect immediately upon signing by the Governor when passed by a recorded, two-thirds majority vote. Id. art. III, § 39. The exception applies to bills and subsequent amendments. Caples v. Cole, 102 S.W.2d 173, 176 (Tex. 1937). Thus, in Caples, we wrote “A harmless bill might be passed in its inception by the requisite vote, and then be radically amended and such amendments be put into immediate effect without the vote required by the Constitution. If such were the rule, the vote on the original bill would control as to whether it became a law immediately after its final passage, and not the final vote subsequently taken on the amendments placed thereon by the other branch of the Legislature, and the plain provision of the Constitution requiring that it be adopted by a vote of two-thirds of all the members of each house, in order to declare an emergency, could be evaded.” Id. Subsequent amendments and resolutions must accordingly meet the constitutional requirement of a recorded, two-thirds majority vote to go into effect before ninety days after adjournment. See id.

  Here, the Legislature passed House Bill 2415 by a two-thirds majority vote of each house on June 1, 2003. See Act of June 2, 2003, 78th Leg., R.S., ch. 676, § 1, 2003 Tex. Gen. Laws 2096, 2097. The vote was taken by a recorded vote. See id. The next day, the Legislature adopted Senate Resolution 66, which amended House Bill 2415 by changing its cap on the post-judgment interest rate from the yield on United States Treasury Bills to the prime rate as published by the Federal Reserve Bank of New York. See id. While the resolution was adopted without objection, the vote was not recorded, and thus under the Constitution did not qualify for expedited effect but rather took effect on September 1, 2003. Id. Accordingly, we agree with the court of appeals that this interest rate did not apply to the judgment in this case.

  (If you skipped that rather imposing block quote, an amendment to a bill was made in the crush of legislation at the end of the legislative session “without objection” rather than through a formal recorded vote. The Court today holds that the amendment does not qualify for the Constitution’s provision governing which statutes can go into effect immediately.)

  I have not yet had a chance to really study this, but it’s not yet clear to me if the Court’s holding means (1) that the Senate Resolution (by a non-record vote) undid the provisions about expediting the effective date and thus the whole bill did not take effect until September 1, 2003 or (2) that instead the bill went into effect immediately using its original (and since repudiated) formula about interest rates and then the resolution changing those rates went into effect later.

  Either way of understanding Texas’s rule about effective dates could decide bigger stakes in some future case.

Premises liability and “actual knowledge”

• Univ. of Tex. Pan-Am. v. Aguilar, No. 07-0424 (per curiam). To establish this premises-liability claim against this public university under the Tort Claims Act, these plaintiffs had to establish actual knowledge of an unreasonable risk of harm from a water hose that crossed a sidewalk. One piece of evidence was a manual showing that the university was aware of the risk of tripping over flexible cords, such as electrical wires, on interior walkways. The Texas Supreme Court, in this per curiam decision, held that the manual was “no evidence” of similar actual knowledge of the risk of tripping over water hoses outside. The Court thus reversed and rendered judgment for the university.

Appellate procedure in parental-termination cases

• In re K.C.B., No. 07-168 (per curiam). As a prerequisite to appeal in a parental-termination case, the Texas Family Code requires a party to file a statement for the points on which they intend to appeal. Here, the party did that — but the statement was left out of the clerk’s record. The Court ultimately holds that the court of appeals should have permitted an amendment of the clerk’s record — even on rehearing — to include that statement and thus to permit the appeal.

  You should probably not be tempted in your own civil cases to try to supplement the clerk’s record on rehearing. The Court makes plain in its closing paragraphs that:

  Given the constitutional dimensions of the “fundamental liberty interest of natural parents in the care, custody, and management of their child,” Santosky v. Kramer, 455 U.S. 745, 753 (1982), justice is not served when a case like this, ripe for determination on the merits, is decided on “a procedural technicality” that can easily be corrected, Silk [v. Terrill], 898 S.W.2d [764,] 766 [Tex. (1995) (per curiam)].

Grants in new cases

The Supreme Court of Texas also granted the petitions for review in five new cases, with oral argument dates to be determined at a later time. (( I also plan to write a little more about these at a later time. I’m working on a new format for this blog’s “case notes” that should make case notes easier for me to create — and easier for readers to find and use. ))

One grant worthy of note is Badiga v. Lopez, No. 05-0801 (court of appeals opinion), yet another medical-practice case about the new statute requiring early filing of expert reports. In Badiga, the parties argue over whether a trial court’s refusal to dismiss a case for failure to timely file an expert-witness report can be the subject of immediate interlocutory appeal. Sound familiar?

Today’s case presents the Court with an actual sighting of this rare bird, a species that in my view merits extinction, not conservation. Extensions forgive deficient reports, not absent ones. If a report is missed, not just amiss, courts are remiss if they do not dismiss.

This was Justice Willett’s concurrence in last week’s case Lewis v. Funderburk [my discussion of the case is here]. You may have also seen that last phrase featured this past week on the Sophistic Miltonian Serbonian Blog and Tex Parte.

In Lewis, a majority of the Court did not reach that legal question, concluding that the parties had not preserved or presented it. The Court will face the issue more squarely beginning with oral arguments in Badiga this fall. It remains to be seen if five Justices can agree on a similarly Seussian rule.

With today’s order list, the Texas Supreme Court issued 11 decisions.

Medical Malpractice

A glance at the list of cases shows a strong medical theme — and, indeed, nine are medical-malpractice cases. In Lewis v. Funderburk, No. 06-0518, the Court decided a key question about interlocutory appeals of inadequate expert reports that had divided the courts of appeals. Justice Brister wrote for the majority opinion for eight Justices.

The Court concluded that the courts of appeals do have interlocutory appellate jurisdiction to review claims made seeking dismissal and attorneys fees for case involving an inadequate (and not merely an absent) expert report. For these purposes, the Court held, an expert report that was inadequate was one that had “not been served” and thus could trigger a fee award.

The Court rejected, however, the doctor’s request that the claim be dismissed outright because the plaintiff had tried to change expert witnesses. The Court held that the statute permits plaintiffs to “chang[e] experts midstream” in the course of replacing an inadequate expert report with an adequate one. (( Separate concurring opinions were also filed by Justice O’Neill, who joined the majority only in part, and by Justice Willett. The two concurring opinions sparred over the effect of a trial court’s extension of time to file a corrected expert report. That question remains open, however, because the majority concluded that it had not been raised by this petitioner. ))

With the core jurisdictional question cleared up, the Court was able to issue eight per curiam reversals in cases raising that same issue. Those were:

• From Houston (First Court): Danos v. Rittger, No. 07-0312

• From Forth Worth: Moore v. Gatica, No. 07‑0094; Diaz-Rohena v. Melton, No. 07‑0173; Center for Neurological Disorders v. George, No. 07‑0174; Collini v. Pustejovsky, No. 07‑0227; Graham Oaks Care Center, Inc. v. Farabee, No. 07‑0228; and Metwest, Inc. v. Rodriguez, No. 07‑0422.

• From Waco: Hill Regional Hospital v. Runnels, No. 07‑0368

Attorneys Fees for Express Warranty Claims Under the UCC

One medical-sounding case actually concerned contract attorneys fees. In Medical City Dallas v. Carlisle Corporation, No. 06-0660, the Court held that the Texas statute authorizing attorneys fees to be awarded for claims of the breach of an oral or written contract, Tex. Civ. Prac. & Rem. Code § 38.01(8), includes claims of the breach of an express warranty. The warranty action in this case arose under the UCC. The Court first concluded that the UCC’s silence on the question of attorneys fees did not prevent another state statute from authorizing those fees. The Court then concluded that Section 38.01 was broad enough to include claims for express warranty, consistent with the Court’s earlier statement (but not holding) to that effect in PPG Industries, Inc. v. JMB/Houston Center Partners L.P., 146 S.W.3d 79 (Tex. 2004).

Invoking the Right To Counsel for Juvenile Offenders; Conflicts Jurisdiction

The other decision in today’s order list is In re H.V., No. 06-0005, a juvenile-justice case about the right to counsel. The Court first had to clear an appellate-procedure question about the bounds of its interlocutory jurisdiction under a 2003 statute relating to the suppression of evidence. The Court concluded that the Legislature had failed to broaden the Court’s interlocutory appellate jurisdiction and thus, in order to decide this case, it would have to find normal conflicts jurisdiction.

That presented a problem because the statute for conflicts jurisdiction contemplates a conflict between courts of appeals or between the court of appeals and the Supreme Court — it does not mention conflicts with decision of the Court of Criminal Appeals, which handles non-juevenile criminal matters. The Court thus had to look for lower-court decisions rather than being able to look directly at the Court of Criminal Appeals decisions for a conflict. (( The Court seems to suggest that the Legislature may want to address this in the next legislative session. It’s hard to argue with that. ))

And the Court was able to find a conflict by using the broader definition of “conflicts jurisdiction” that were enacted in 2003 as part of a broader tort-reform initiative. Loosely employing that framework, the Court concluded that there was uncertainty in the courts of appeals over this question. The Court seemed to make clear, however, that its mode of reasoning was limited to juvenile-justice cases — that it turned on the presence of double-jeopardy (which would prevent retrial of certain questions), on the unique nature of criminal cases (especially, as the Court notes, about murder), and the effect that uncertainty may have on ongoing criminal investigations. In other words, the Court seems to be saying, don’t try to cite this “conflicts jurisdiction” precedent in a civil context.

The Court was divided 5-4, however, over the resolution of the criminal-procedure question. The circumstances are described here:

When asked whether he wanted to waive his rights and speak to police, H.V. said he wanted to speak to his mother, but was told he could not. H.V. then responded that he “wanted his mother to ask for an attorney.” When the magistrate responded that only he (not his mother) could ask for an attorney, H.V. replied, “But, I’m only sixteen.” The magistrate then reiterated that only he could ask for an attorney, after which H.V. eventually said he would talk to the police. In a second written statement, H.V. claimed Oltmanns accidentally shot himself with H.V.’s gun, after which H.V. placed him in a bathtub where he bled to death. Based on a drawing by H.V., police recovered the gun from a storm sewer close to H.V.’s home.

Finding that H.V. had invoked his right to counsel during custodial interrogation, the trial court suppressed both H.V.’s second written statement and the gun, and the court of appeals affirmed. The State brings this appeal…

Justice Brister wrote for a five-Justice majority, joined by Justice O’Neill, Justice Medina, Justice Johnson, and Justice Willett. The Court examined the law about how to tell if a suspect has invoked his right to counsel and posed the question whether a juvenile’s age was a proper factor to consider in determining if the request for counsel has been sufficiently concrete. The Court did not answer that question, however, because it concluded that H.V.’s statement (he “wanted his mother to ask for an attorney”) was sufficiently definite to trigger constitutional protections. In that regard, the Court affirmed the court of appeals’s conclusion. But the Court disagreed with the court of appeals’s conclusion that certain physical evidence (the gun) should have been suppressed as “fruit of the poisonous tree” from that interrogation. The Court concluded that the gun should, nonetheless, have been admitted, and the Court reversed that portion of the suppression order.

Chief Justice Jefferson wrote an opinion concurring in part and dissenting in part that was joined in full by Justices Wainwright and Justice Green, and joined in part by Justice Hecht. These Justices would have held that age is a proper factor to consider — but that even taking H.V.’s age into account, his statement was not sufficiently definite to trigger the right to counsel. Accordingly, the dissent would have reversed the suppression order and permitted H.V.’s subsequent statements to be admitted against him.

The court’s order list for this week is available here.

The Court issued two opinions, one a per curiam and the other authored by Justice Brister. In Ansell Health Care Products & Becton, Dickinson, and Co. v. Owens & Minor, Inc., and Minor Medical, Inc., No. 06-0386, the court issued a per curiam opinion reversing the court of appeals’s decision as inconsistent with last week’s decision resolving the certified question in Owens & Minor, Inc., v. Ansell Healthcare Products, Inc., No. 06-0322. The Court restated its earlier holding: “a manufacturer that offers to defend or indemnify a distributor for claims relating only to the sale or alleged sale of that specific manufacturer’s product fulfills its obligation under Section 82.002 [of the Civil Practice and Remedies Code].” [opinion here]

The certified question in Owens & Minor was a splintered decision — 4 justices joined Justice Green’s plurality opinion [here], 4 Justice O’Neill’s dissent [here], and Justice Brister was left as the swing vote between what he described as “two ships passing in the night.” [here] Whether this split could finally require the Court to clarify whether it follow the Marx rule will have to wait for further coverage.

In Texas Mutual Insurance Co. v. Ledbetter, No. 06-0814, [opinion here] concluded that the Labor Code requires any money awarded in a wrongful-death lawsuit filed by an employee who was covered by worker’s compensation must be used to satisfy the workers’ comp carrier before being applied to attorney’s fees or distributed to the worker’s estate. Justice Johnson declined to join part IV of the opinion, which addressed the scope of the plaintiffs’ right to nonsuit.

Additionally, the Court denied one of the two related mandamuses filed by the Attorney General’s office [covered here and here], while the other remains set for briefing on the merits.