In its weekly order list this morning, the Supreme Court of Texas did not issue any opinions or grant any new cases. The Court held conference yesterday, so it's likely that next week's order list may be a little more noteworthy.
This week, the Court heard argument in six cases. You can watch recordings of the arguments here.
On Tuesday, September 22, the Court heard arguments in:
No. 14-0193, Caffe Ribs Inc. v. State - In this condemnation suit, the issue is whether the trial court properly allowed evidence of environmental remediation issues that the State argued affected the value of the property, while excluding evidence that the issues had not been addressed because of the State's project.
No. 14-0534, Railroad Commission v. Gulf Energy Exploration Corp. - After obtaining legislative consent to sue the State, Gulf Energy obtained a $2.5 million judgment arising from the plugging of an offshore well. One issue is whether the State can assert a statutory immunity defense after the Legislature granted Gulf Energy the right to sue. The State complains that the trial court refused to submit a jury question about whether the State was acting in good faith when it plugged the well. The court of appeals found that this complaint was waived because the State did not request a transcript of the informal charge conference in which the trial court refused the submission. The court of appeals also found that the State waived other complaints about the charge.
No. 14-0574, J&D Towing LLC v. American Alternative Insurance Corp. - This insurance-coverage case involves a tow truck that was destroyed. The principal issue is whether the insured can recover loss-of-use damages for the lost profits suffered before the truck was replaced.
On Wednesday, September 23, the Court heard arguments in:
No. 14-0379, Campbell v. Wilder - In this case (which has attracted a fair amount of media attention), indigent parties challenge the Tarrant County District Clerk's practice of sending collection notices demanding payment of court costs by parties who have already been determined to be indigent (and therefore exempt from paying court costs) under Rule 145. The court of appeals held that only the court that issued the underlying judgment has jurisdiction over a dispute regarding costs. The petitioners argue that the district court in this case has jurisdiction to enjoin the clerk's practice.
No. 15-0146, Forte v. Wal-Mart Stores Inc. - The certified question relates to the civil penalty provisions of the Texas Optometry Act. Essentially, the Supreme Court has been asked to resolve how the civil penalty provisions of the Texas Optometry Act should be harmonized with the restrictions on exemplary damages found in Chapter 41 of the Texas Civil Practice and Remedies Code. There are two questions: (1) whether the civil penalties are "damages" as that term is used in Texas Civil Practice and Remedies Code section 41.002(a); and (2) if the civil penalties are "damages," whether they are subject to the limitation in Texas Civil Practice and Remedies Code section 41.004(a), which precludes recovery of exemplary damages if there is no recovery of actual damages.
No. 15-0437, Garofolo v. Ocwen Loan Servicing LLC - This is a certified question from the Fifth Circuit. The issue relates to the home-equity loan provision of the Texas Constitution. The question is whether a lender forfeits principal and interest where the loan agreement incorporates the protections required by the constitution but the lender fails to return the cancelled note and release of lien upon full payment within 60 days of notice of its failure to comply. A second question is whether (if the answer to the first question is "no") forfeiture can be granted as a breach-of-contract remedy where the lender files the release of lien but fails to send the cancelled note and release of lien.
In the weekly order list issued on September 25, 2015, the Court did not issue any opinions or grant any new cases. Read the complete order list here.
This morning, the Supreme Court of Texas issued two per curiam opinions. There are no grants. Access the complete order list here.
The two per curiam opinions are:
No. 15-0582, Office of the Attorney General v. Weatherspoon - In this case under Whistleblower Act, the Court reverses the court of appeals' decision in light of the Supreme Court's decision in Texas Department of Human Services v. Okoli, 440 S.W.3d 611 (Tex. 2014). In Okoli, the Court held that the Whistleblower Act does not protect reports to supervisors who have only internal compliance power. The court of appeals' decision in Weatherspoon was issued before Okoli. Read the opinion here.
No. 15-0037, Lawson v. City of Diboll - This is a premises-defect case that presents the issue of whether the recreational use statute applies to the plaintiff's claim that she was injured when she tripped and fell while exiting a softball complex. The Court reverses and remands for further consideration in light of the Court's decision in University of Texas at Arlington v. Williams, 459 S.W.3d 48 (Tex. 2015). Read the opinion here.
Next week, the Court will hear argument on Tuesday and Wednesday. I will have preview posts on Monday and Tuesday. (The Court's calendar shows arguments scheduled for Thursday, but there are no cases set for argument that day.)
There are no opinions and no grants in the Texas Supreme Court's order list for September 11, 2015.
As promised, here are the summaries of the 14 cases that the Supreme Court of Texas set for argument in its September 4, 2015 orders:
No. 13-0977, Fischer v. CTMI, L.L.C. - The primary issue is whether a provision in an asset purchase agreement is an unenforceable agreement to agree. Petitioner contends that the provision cannot be carved out of the otherwise enforceable agreement and that partial performance of the agreement precludes a finding that the provision is unenforceable.
No. 13-0986, Southwestern Energy Production Co. v. Berry-Helfand - In this oil and gas case, the plaintiff asserts that the defendants conspired to steal her trade secrets. The primary issues on appeal are (1) whether the evidence supports the award of actual damages; (2) whether the plaintiff's claim is barred by the statute of limitations; (3) whether the court of appeals correctly reversed the breach-of-contract damages; and (4) whether disgorgement is a proper remedy for misappropriation of trade secrets.
No. 14-0086, Philadelphia Indemnity Insurance Company v. White - This is a landlord/tenant dispute arising from damages to the apartment complex allegedly caused by a clothes dryer owned by the tenant. The primary issue is whether the agreement between the tenant and the landlord that makes the tenant responsible for damage caused by a personal appliance is void under the Texas Property Code or Texas public policy. The respondent also asserts other grounds for finding the agreement unenforceable (such as lack of consideration, ambiguity, unconscionability, etc.).
No. 14-0459, Houston Belt & Terminal Ry. Co. v. City of Houston - This case arises from a dispute about the City's drainage utility ordinance. The issue is whether the petitioners have pleaded a viable ultra-vires claim such that the claims are not subject to governmental immunity. In the interest of full disclosure, I represent the petitioners in this case.
No. 14-0546, Apache Deepwater, LLC v. McDaniel Partners, Ltd. - This case arises from a dispute about production payments allegedly owed under an assignment of multiple oil and gas leases. The issue is what effect the expiration of some of the assigned leases has on the production payment. The petitioner asserts that the portion of the production payment attributable to the expired leases is no longer payable. The respondent argues that the payment is a fixed amount without a proportionate reduction clause (or other similar provision) and is therefore payable in full even if some leases have expired.
No. 14-0572, Coyote Lake Ranch, LLC v. City of Lubbock - In this dispute arising from dispute over groundwater, the issue is the accommodation doctrine (which requires the owner of the mineral estate to accommodate existing surface uses when possible) applies to a severed groundwater estate.
No. 14-0591, Staley Family Partnership, Ltd. v. Stiles - Petitioner filed suit seeking a declaration that it has an implied right-of-way easement by necessity over the respondents' property. The dispute centers on what the petitioner must prove to establish the implied easement by necessity. The parties dispute whether the petitioner must show that the easement would give access to a roadway.
No. 14-0638, Ochsner v. Ochsner - In this child-support dispute, the issue is whether the child-support obligor could be found in arrears on child support when he made direct payments for child care and private school instead of making child-support payments through the county.
No. 14-0650, Centerpoint Builders GP, LLC v. Trussway, Ltd. - This is an indemnity dispute arising from a suit for personal injuries sustained in an accident at a construction site. The worker was injured when he stepped on a roof truss, which broke, causing the worker to fall 8-10 feet. The primary issue is whether the general contractor who purchased the roof truss and gave it to a subcontractor for installation is a "seller" under Chapter 82 of the Civil Practice and Remedies Code.
No. 14-0732, McIntyre v. El Paso Independent School District - This case arises from a dispute between a family that home schools its children and the El Paso Independent School District. The primary issues are (1) whether the family was required to exhaust administrative remedies before suing the district and (2) whether the court of appeals properly dismissed the family's other claims.
No. 14-0745, Sampson v. University of Texas - Austin - The issue in this case is whether a portable extension cord strung across a sidewalk is a "premises defect" or a negligent use of tangible property.
No. 14-0797, In re Phillips - This mandamus proceeding arises from a dispute about compensation for wrongful imprisonment. The issue is the proper amount of child-support arrearage to which the petitioner is entitled under the statute requiring compensation for wrongful imprisonment.
No. 14-0901, Union Pacific Railroad Co. v. Nami - In this Federal Employers' Liability Act suit, the issue is whether Union Pacific can be liable for failure to provide a safe workplace when one of its employees allegedly contracted West Nile virus from mosquitoes while working.
No. 14-0903, Clint Independent School District v. Marquez - Parents of schoolchildren in the Clint Independent School District sued claiming that the district's intra-district funding violates the Texas Constitution. The issue is whether the parents had to exhaust their administrative remedies before suing the district. The trial court dismissed the claim for failure to exhaust administrative remedies. The court of appeals reversed, holding that the parents did not need to exhaust administrative remedies because they are complaining solely of the violations of their children's state constitutional rights.
As predicted last week, the Supreme Court's order list was busier today. The Court granted 13 petitions for review and set a mandamus petition for argument. In so doing, the Court filled out its October argument calendar and the majority of its November argument calendar. I will post summaries of the 14 cases next week.
The order list also includes an unusual entry: an dissenting opinion from the denial of a mandamus petition and an opinion concurring in the denial. The case is No. 15-0632, In re Dorn, which the Court denied on August 28. The petition involves an attempt by citizens of San Marcos to compel an election on a charter amendment. The concurrence (by Justice Brown and joined by Justice Green), seeks to explain why the Court denied the petition in this case even though it is similar to In re Woodfill, in which the Court granted mandamus relief. The concurrence notes that the relators in Dorn were not as diligent in pursuing relief even though they knew that statutory deadlines for the election were quickly approaching. The dissent (by Justice Devine and joined by Justice Lehrmann) concludes that the city failed to follow its own charter in refusing to place the citizen initiative on the ballot. The dissent also chastises the city for using an interlocutory appeal to ensure that the statutory deadline would pass before the dispute would be resolved. This case is a good reminder that although there are no hard deadlines for a mandamus petition, failing to act expeditiously can result in denial of relief.
On Tuesday, September 2, 2015, the Supreme Court of Texas is scheduled to hear argument in three cases:
No. 13-0499, In re RSR Corp. - This mandamus proceeding seeks review of the trial court's decision to disqualify relator's counsel. The trial court found (and the court of appeals agreed) that the relator's counsel should be disqualified because it engaged in ex parte contact with a former employee of the real party in interest who was involved in litigation-related activities while still employed by the real party in interest. The primary issue is what standard should apply to determine whether disqualification is appropriate. A secondary issue is whether the real party in interest waived its argument that the standard in In re American Home Products Corp., 985 S.W.2d 68 (Tex. 1998) by waiting too long to cite the case to the special master appointed by the trial court
No. 13-0768, BCCA Appeal Group Inc. v. City of Houston - This appeal arises from a suit seeking a declaration that the City's clean air ordinance is unconstitutional. The BCCA Appeal Group argues that the ordinance is preempted by the Texas Clean Air Act and that it violates the non-delegation doctrine.
No. 14-0753, U.S. Metals, Inc. v. Liberty Mutual Group, Inc. - This is an insurance coverage case involving the construction of two exclusions in a commercial general liability policy. The Fifth Circuit certified four questions: (1) In the “your product” and “impaired property” exclusions, are the terms “physical injury” and/or “replacement” ambiguous? (2) If yes as to either, are the aforementioned interpretations offered by the insured reasonable and thus, must be applied pursuant to Texas law? (3) If the above question 1 is answered in the negative as to “physical injury,” does “physical injury” occur to the third party’s product that is irreversibly attached to the insured’s product at the moment of incorporation of the insured’s defective product or does “physical injury” only occur to the third party’s product when there is an alteration in the color, shape, or appearance of the third party’s product due to the insured’s defective product that is irreversibly attached? and (4) If the above question 1 is answered in the negative as to “replacement,” does “replacement” of the insured’s defective product irreversibly attached to a third party’s product include the removal or destruction of the third party’s product?
With September upon us, the Supreme Court of Texas will begin a new court year with its first round of oral argument this week. The Court will hear argument on Tuesday, Wednesday, and Thursday.
On Tuesday, September 1, 2015, the Court will hear argument in just one case—school finance (again). The case is No. 14-0776, Williams v. Texas Taxpayer & Student Fairness Coalition, et al. This is a direct appeal from a trial court judgment (after two separate bench trials) finding that the state's public school finance system is unconstitutional. As would be expected, the case has drawn a lot of attention, including at least 18 amicus briefs or letters. The Court has allocated more than two hours for oral argument. You can watch oral argument live (or go back and watch the recording later) here.
In its weekly orders this morning, the Texas Supreme Court issued one per curiam opinion. The court did not grant any new cases.
The per curiam opinion was issued in No. 13-0814, Dallas National Insurance Company v. De La Cruz. This is a workers' compensation case in which the worker argued that she was entitled to lifetime income benefits under the Workers' Compensation Act because she had suffered "total loss of use" of her feet as a result of a back injury. Applying prior cases regarding the meaning of "total loss of use," the Court held that there was no evidence that the loss of use of her feet was the result of "damage or harm to the physical structure" of her feet, rather than the result of the injury to her back.
Although it has been a quiet summer, we expect next week's order list to be a little more newsworthy because the Court has conference scheduled for yesterday and today.
In its weekly orders (7/24/15), the Texas Supreme Court issued three per curiam opinions and granted no petitions for review. Click here to read the order list and access the opinions.
The three opinions are:
No. 14-0548, City of Ingleside v. City of Corpus Christi -- This is a boundary dispute between two cities, where Ingleside's jurisdiction encompasses land on the shore side of the Corpus Christi Bay shoreline, while Corpus Christi's jurisdiction includes land extending from the shoreline into the bay. The dispute is about control over wharves, piers, docks, and other objects affixed to Ingleside's shoreline and projecting into the bay. The court of appeals held that the courts have no jurisdiction, because selecting the boundary between political subdivisions is a purely political decision. The Supreme Court disagreed, holding that the issue requires the court to interpret relevant boundary ordinances, not select the appropriate boundary line.
No. 14-0629, Kay Venture, Ltd. v. Cremona Bistro Corp. -- This is an equitable bill of review to set aside a no-answer default judgment. The petitioners argued that they were not properly served with citation or with notice of the default judgment. They also had to admit, however, that they had failed to update their registered address with the Texas Secretary of State. The plaintiff in the underlying suit put the petitioners' old address on the certificate of last known address, even though the plaintiff had actual knowledge of the petitioners' new address. The Supreme Court held that there was a fact issue, because there was some evidence that the failure to receive notice of the default judgment resulted solely from the plaintiff's failure to properly certify the petitioners' "last known mailing address," and not from any negligence or fault on the petitioners' part.
No. 14-0667, In re Woodfill -- Houston residents filed a petition to have the city council repeal the city's equal-rights ordinance or put the repeal request before the voters in a referendum. Even though the city secretary certified the petition as sufficient, the city council refused to repeal the ordinance or schedule a referendum. The Supreme Court held that, after the city secretary certified the petition, the city council had a ministerial duty to either repeal the ordinance or schedule a repeal referendum.
This morning, the Texas Supreme Court accepted the certified question from the Fifth Circuit in No. 15-0489, Janvey v. The Golf Channel. This case arises from the Stanford fraud litigation. The question certified by the Fifth Circuit is:
Considering the definition of “value” in section 24.004(a) of the Texas Business and Commerce Code, the definition of “reasonably equivalent value” in section 24.004(d) of the Texas Business and Commerce Code, and the comment in the Uniform Fraudulent Transfer Act stating that “value” is measured “from a creditor’s viewpoint,” what showing of “value” under TUFTA is sufficient for a transferee to prove the elements of the affirmative defense under section 24.009(a) of the Texas Business and Commerce Code?
The Court has asked for briefs on the merits from the parties. The date for oral argument has not yet been set.
In the interest of full disclosure, Thompson & Knight represents Mr. Janvey in his capacity as the court-appointed receiver for the Stanford entities. We are not involved in this case.