With today’s orders list, the Court did not issue any opinions.

The Court did announce an argument date for State Office of Risk Management v. Christy Carty, individually and as Next Friend For B.C., J.C. and M.C...., No. 13-0639 , a certified question from the Fifth Circuit about how to allocate certain recoveries in a workers compensation case.

The Court accepted the certified question in August 2013, which as a practical matter meant that it would later be set for oral argument. Now that the case has been fully briefed, it will be heard on February 5, 2014.

Reading tea leaves

As I write this, there are four cases set to be argued in the early February sitting (compared to 9 in the just-completed January sitting). The Court does have a private conference early next week. We may see some grants from that conference made public Tuesday or Wednesday.¹

With today’s orders list, the Court did not issue any opinions or select any cases for argument.

The Court has an argument sitting next week, and a private conference is scheduled for the week of January 13, 2014.

This week’s orders list brought no opinions or grants.

I would make a short comment on how that was the last full orders list of the year, but the Court’s published calendar no longer includes future order-release dates.

Barring something exceptional happening next Friday, however, this will be my last summary post of the year. See you next year!

With today’s orders list, the Texas Supreme Court issued two opinions and chose four cases for argument next spring.

Attorney’s fees are not proper in child-support modification orders

ROSSCER CRAIG TUCKER, II v. LIZABETH THOMAS, No. 12-0183

Opinion of the Court

Concurring

Resolving a split among the courts of appeals, the Court holds that Texas statutes do not authorize a trial court “to order a parent to pay attorney’s fees as additional child support in a non-enforcement modification suit.”

The majority opinion contrasted other parts of the family code, which do expressly permit attorney’s fees. “In light of the Family Code’s detailed scheme concerning awards of attorney’s fees in [other contexts], we believe it is significant that the Family Code is silent [about them for modification suits]”.

Justice Guzman wrote a concurring opinion (joined by Justice Lehrmann) that provided more context about why the Family Code provisions on attorney’s fees are so fragmented, which may help inform any attempts at a legislative fix. The concurrence ultimately agreed with the majority that, “in the absence of express statutory authorization,” fees were not available here.

Whistleblower Act: who is a law-enforcement official?

YSLETA INDEPENDENT SCHOOL DISTRICT v. MARCELINO FRANCO, No. 13-0072

Per Curiam

The Court applied its recent decisions in Gentilello and Farran, which had concluded that an employee making a report to an internal compliance officer was not itself a report to a “law-enforcement authority” to trigger the protections of the Whistleblower Act.

Like those cases, the Court concluded that this record “failed to show [that the plaintiff had] an objective, good-faith belief that the [school district] qualifies as an ‘appropriate law-enforcement authority’ under the Act.”

Grants

Permanent injunctions against defamation

Robert Kinney v. Andrew Harrison Barnes (A/K/A A. Harrison Barnes, A.H. Barnes, Andrew H. Barnes..., No. 13-0043 : The petition asks whether Texas law should permit a post-judgment, permanent injunction against defamatory speech. (Set for argument January 9, 2014)

Slander of title, tortious interference, and exemplary damages

HMC Hotel Properties II Limited Partnership and Host Hotels & Resorts, L.P., f/k/a Host Marriott... v. Keystone-Texas Property Holding Corporation, No. 12-0289 : The Court granted rehearing of this petition, which had been denied review on June 28, 2014. The rehearing motion urged the Court to take the case because of the monetary stakes and because of alleged secret communications between the trial judge and jury regarding exemplary damages. (Set for argument February 4, 2014)

Statute of repose vs. the Open Courts provision

Tenet Hospitals Limited, A Texas Limited Partnership d/b/a Providence Memorial Hospital, and Michael D. Compton... v. Elizabeth Rivera, As Next Friend for M.R., No. 13-0096 : The petition asks whether the 10-year statute of repose can constitutionally be applied to: (1) a claimant that was younger than 8 at the time of injury, (2) for a claim that arose years before the “statute of repose” was enacted. (Set for argument February 4, 2014)

Oil and gas

Key Operating & Equipment, Inc. v. Will Hegar and Loree Hegar, No. 13-0156 : The appeal concerns when the holder of a mineral lease that is part of a pooled unit has the right to use adjacent surface property for drilling. (Set for argument February 4, 2014)

The Court did not issue orders on the Friday after Thanksgiving. The next week, the Court heard oral arguments and then issued a fairly quiet orders list, disposing of cases that did not need to be held for the next conference.

The Court is having a private conference on December 9th and 10th. That is the final conference for the calendar year. (The next conference will begin January 14, 2014.)

With its November 22, 2013 orders, the Texas Supreme Court chose seven cases for oral argument in January 2014.

Defamation remedies

Allen Chadwick Burbage v. W. Kirk Burbage and Burbage Funeral Home, No. 12-0563 – Cross-petitions in a defamation case. One side asks whether the damages here are supported by sufficient evidence and what is required to preserve error under Casteel. The other asks whether a permanent injunction against defamatory speech would also have been permissible.

Commercial arbitration

Tenaska Energy, Inc., Tenaska Energy Holdings... v. Ponderosa Pine Energy, LLC, No. 12-0789 – What is the standard for challenging an arbitration award on the basis that the arbitrator was not impartial?

Venture Cotton Cooperative and Noble Americas Corp. v. Shelby Alan Freeman, et al., No. 13-0122 – When does a provision in a set of arbitration rules make a commercial arbitration agreement unconscionable?

Oil and gas (and other subsurface fluids)

Environmental Processing Systems, L.C. v. FPL Farming Ltd., No. 12-0905 – Should Texas recognize a common-law cause of action for trespass involving fluids far beneath the surface?

Foreclosure remedies

Mehrdad Moayedi v. Interstate 35/Chisam Road, L.P. and Malachi Development Corporation, No. 12-0937 – Whether the Texas statute designed to prevent lenders from obtaining a windfall recovery after below-market foreclosure sales can be waived, and if so, how specific must the borrower’s waiver be.

Maritime jurisdiction and the Dram Shop Act

Schlumberger Technology Corporation v. Christopher Arthey and Denise Arthey, No. 12-1013 – Whether maritime jurisdiction (and, thus, duties under maritime law) apply to a drunk-driving accident after a fishing event organized by the defendant.

Governmental immunity

Lubbock County Water Control and Improvement District and Tommy Fisher, in his official capacity as President of the Board of Directors of the Lubbock County Water Control and Improvement District v. Church & Akin, L.L.C., No. 12-1039 – The petition asks about the scope of the waiver by local governments for entering into a lease that (it is alleged) did not involve the provision of goods or services.

With its November 22, 2013 orders list, the Texas Supreme Court issued opinions in three cases and chose seven more for oral argument in January.

This post describes the opinions; the grants are summarized in a separate post.

Opinions

For what torts can a tenant who overstays a lease be sued by the landlord?

COINMACH CORP. F/K/A SOLON AUTOMATED SERVICES, INC. v. ASPENWOOD APARTMENT CORP., No. 11-0213

Concurring

In an important case for landlord-tenant law, the Court clarified when a tenant who overstays a lease can be sued by the landlord in tort.

The lease here was a commercial one, with a laundry-services company leasing space in a commercial development. But as noted by Justice Guzman in her concurring opinion, the broader holding is also applicable to residential tenants.

Although the status was disputed through years of litigation, it was ultimately conceded that the contractual lease had been terminated when the landlord’s interest in the property was sold through foreclosure. The new owner demanded the tenant leave the premises, after which the tenant became a “tenant at sufferance.”

The majority opinion, written by Justice Boyd, held:

• “[A] tenant at sufferance cannot be liable for breach of the previously-terminated lease agreement.” Once the lease is over, tort duties apply.

• “[A] tenant at sufferance is a trespasser and can be liable in tort (although the extent of liability depends on the nature of the trespass), including, in this case, tortious interference with prospective business relations,” most commonly meaning the lost rental income from the property.

Justice Guzman wrote separately (joined by Justice Devine and Justice Brown) to discuss how this “‘tortification’ of landlord-tenant law” will affect residential tenants, rather than more sophisticated commercial tenants:

tenants will now potentially be required to defend against actions for trespass and tortious interference. Importantly, in facing a tortious interference claim, tenants are exposed not only to damages traditionally recognized under landlord-tenant law — that is, rent or lost profits and property damage — but also to heightened emotional distress or exemplary damages.

Relying on an observation made in an amicus brief by the Texas Housing Justice League, the concurrence noted that most residential tenants, unlike commercial tenants, will not have access to counsel for advice.

I write separately to emphasize that in a claim for tortious interference, which may seek more than actual damages, the landlord must satisfy a greater burden of proof: it must prove the tenant at sufferance specifically intended to interfere with the landlord’s relationship or contract with the prospective lessee. If a valid court order obtained in good faith grants a tenant at sufferance the right to possess property, the order will generally demonstrate the tenant’s lack of the heightened intent necessary to support a claim for more than actual damages.

This concurrence garnered three votes. Although the six Justices in the majority “do no not necessarily disagree with [the concurrence’s] thoughts,” they did not reach that issue because it was not raised by the parties here. So, although the concurrence makes a strong prediction about the future direction of Texas law, it is not (just yet) controlling law.

In holdings that might matter to those litigating other issues:

• The Court held that the landlord here was not a “consumer” under the DTPA because it benefitted only indirectly from the laundry services here (which went to the landlord’s other tenants, not to the landlord itself).

• The Court held that the UDJA was not available to support an award of attorneys fees for what was essentially a dispute about possession of property, akin to a suit over title.

Sovereign immunity arguments can expand during the appeal

DALLAS METROCARE SERVICES v. ADOLFO JUAREZ, No. 12-0685

Per Curiam

The court of appeals had refused to consider certain sovereign immunity arguments, reasoning that they had not been presented to the trial court. Applying its 2012 decision in Rusk State Hospital v. Dennis Black and Pam Black, individually and as Representatives of the Estate of Travis Bonham Black, Deceased, No. 10-0548 , the Texas Supreme Court reversed and remanded for the court of appeals to address those arguments.

Within that discussion, the Court held that a whiteboard that fell on a patient did not fit into the “use” exception within the Tort Claims Act. On remand, the court of appeals can determine whether the injury here resulted from a “condition” of property or a premises liability theory.

Exhaustion of remedies required to enforce (old) settlement agreement

CITY OF HOUSTON v. CHRISTOPHER RHULE, No. 12-0721

Opinion

The Court was asked to determine whether the version of Texas’s workers compensation law in effect in 1988 required this firefighter to exhaust administrative remedies before he could sue to enforce a previous settlement (about which the City had changed its mind and stopped paying).

The Court held that the former statute required exhaustion of administrative remedies and, thus, that the courts did not (yet) have power to hear the claim.

Today’s orders list did not bring any opinions.

The Court did announce an argument date for Frankie Sims, on behalf of Himself and All Others Similarly Situated; and Patsy Sims, on behalf of Herself and All Others Similarly Situated v. Carrington Mortgage Services, L.L.C., No. 13-0638 , the certified question involving home-equity loans in Texas. That case will be argued December 4, 2013.

I wrote a little about the issues in Sims when the Fifth Circuit forwarded the case in August.

Last week

Monday was Veterans Day, and it was also the day of the formal investiture of Chief Justice Nathan Hecht and new Justice Jeff Brown. The oath of office was administered by Justice Scalia. (Some photos are available on the Court’s website at this link.)

Next week

The Court has a private conference set for Monday and Tuesday. That makes it more likely that we would see grants of review in next week’s orders.

How can respondents obtain dismissal of a petition for review?

You might have noticed that my version of the orders lists specifies when a petition has been disposed after full briefing was requested, which is something I try to pay attention to. There were two of those this week, even though it was not a conference week. So, as is my habit, I looked into them a little deeper.

It turns out that both were cases in which a respondent, not the petitioner, had moved to dismiss. Both cases had the same respondent, who during the time allotted for its merits brief, chose instead to non-suit the underlying lawsuit (in which it was the plaintiff) and argue that the appeal was moot. The Court granted the motions to dismiss.

That kind of unilateral walk-away settlement seems like a really nice option for a respondent to have. Looking through the rules for Supreme Court practice, I’m not sure the best way for a respondent to obtain that sort of dismissal against the petitioner’s wishes. (( The petitioner here eventually agreed not to oppose the motion. When filed, it was not clear whether it would be opposed. )) A suggestion of mootness could trigger Rule 56.2, which authorizes the Court to grant a moot petition and then dismiss. Rule 56.1 authorizes two notations for petitions that have not been granted: “denied” and “dismissed w.o.j.”, neither of which the Court used here. (From what I can tell, the Court has not actually marked a petition “dismissed w.o.j.” since 2002. It might be time to dust off my draft blog post about our increasingly vestigial petition-history system…)