With Friday’s orders list, the Texas Supreme Court issued four decisions, granted two petitions for argument this fall, and granted rehearing of one previously denied petition.

Four Decisions

• Nicholas Traxler v. Entergy Gulf States, Inc., No. 10-0970

  Traxler was injured by a power line that had been installed lower than the 22 feet normally required by Texas statute. Traxler argued that this could show negligence per se, and the trial court agreed. On appeal, Entergy argued that the relevant statute did not apply to “distribution” lines such as this one but instead they were subject only to a federal requirement that they be at least 18.5 feet above the ground. The court of appeals agreed with Entergy and reversed.

  The Texas Supreme Court agreed with Traxler’s reading of the statute rather than Entergy’s. Justice Willett wrote for a unanimous Court, holding that the Legislature did not intend for the 22-foot requirement to distinguish between “transmission” and “distribution” lines at all but has used those terms interchangeably. Accordingly, the Court reversed the court of appeals and remanded back to that court to consider Entergy’s other arguments.

• In re Frank Kent Motor Co. d/b/a Frank Kent Cadillac, No 10-0687.

  In a nutshell: “We conclude that because an employer has the legal right to terminate an at-will employee, a threat to exercise that right cannot amount to coercion that would invalidate a jury waiver agreement.” Justice Lehrmann wrote for a unanimous Court.

• Federal Deposit Insurance Corp. v. Christa C. Lenk, administrator of the estate of John Albert Thompson, No. 08-0908

  There is a rich history to this case, going back to Mel Spillman, a former court clerk who mismanaged enough estate funds to drive a Ferrari. The estate administrator here, Lenk, had sued a number of banks over funds that were dispersed to Spillman.

  Some of those claims made it to the Texas Supreme Court in Jefferson State Bank v. Christa C. Lenk, No. 09-0269. The Court held that a one-year statute of repose barred some of the claims because the administrator had waited almost two years after being appointed before contacting the bank to get the statements showing the fraudulent withdrawals.

  The wrinkle in this case is that the banks had not asserted that defense so as to preserve the argument in the trial court. For that reason, the Jefferson Bank case was not controlling. The question is whether the banks had some other defense to support judgment in their favor.

  A majority of seven justices held that they did not. Justice Guzman’s opinion rejects each of the banks’ arguments in turn. The Court upheld the award in favor of Lenk.

  Justice Hecht, joined by Justice Green, dissented. As the dissent saw the question, Lenk had not properly framed a claim to accrue in 2003 at all. Instead, Lenk pleaded a claim that accrued in 2005 (to avoid limitations) and thus stated a claim that did not exist: “The problem with the claim Lenk asserts is not that it is time-barred; the problem is that … the claim does not exist.”

  Given the disagreement, it is somewhat unusual this was decided under Rule 59.1 without oral argument. (That rule is usually invoked for unanimous per curiam decisions.) At least six Justices voted to dispose of the case without argument.

• Milner v. Milner, No. 10-0776.

  This was a business dispute arising out of a divorce case. The MSA (mediated settlement agreement) had language transferring part of the husband (Jack)’s interest to the wife (Vicki). Vicki argued that the intent was to make her a limited partner in the venture, but the final divorce paperwork did not contain signature lines or any other mechanism to force her entry to the partnership. She withdrew her own consent to the MSA and argued it must be set aside. The trial court disagreed.

  Justice Medina, writing for six Justices, held that the trial court should have set aside the MSA and allowed a new property division.

  Justice Johnson, joined by Justices Green and Willett, dissented. Although the dissenters agreed that the case should be reversed, they would have rendered judgment rather than remanding, on the idea that the MSA language was unambiguous that it did not give her a role in the partnership but instead just a property interest.

Two Grants of Review

These cases will be set for oral argument sometime this fall:

• Texas Department of Transportation and City of Edinburg v. A.P.I. Pipe and Supply, L.L.C. and Paisano Service Co., No. 10-1020. The petition frames the question in terms of the “innocent purchaser” rule allows someone to disregard a properly recorded instrument (a previously final judgment). The wrinkle is that there was an intervening instrument (a nunc pro tunc) that, although void, was also recorded in the county records and may have cast doubt on the status of the property.

• Kopplow Development, Inc. v. The City of San Antonio, No. 11-0104. The city built a water project that affected the use of Kopplow’s property, and after being sued for inverse condemnation, the city decided to sue to condemn the land outright. The petition raises a variety of issues, including how to value the portion of the land taken.

One Rehearing Grant

As it did last week, the Court has granted rehearing of a previously denied petition. The case is Texas Department of Licensing and Regulation v. Carolyn K. McCollum, No. 10-0420. The motion for rehearing argues, in part, that this petition should be held open because it raises the same questions about timing a suit against the government under the TCHRA as Mission Consolidated Independent School District v. Garcia, No. 10-0802, a case recently argued to the Court.

Consistent with that, the Court granted rehearing and restored the petition to its active docket. The case has not been selected for oral argument.