Supreme Court of Texas Blog: Legal Issues Before the Texas Supreme Court
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Dallas is hosting the AJEI conference later this month

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This year’s AJEI (Appellate Judges Education Institute) is being held in Dallas from November 13-16. If you’re in the area, you should see if […]

This year’s AJEI (Appellate Judges Education Institute) is being held in Dallas from November 13-16. If you’re in the area, you should see if part of the program works with your schedule. (If you’re already planning to attend, then please say hello if you see me wandering the halls).

The program lineup gives you a sense of the range of topics. This is a national event, and the centerpiece Saturday event is a two-hour program with Justice Scalia and Bryan Garner. The program also has some Texas Supreme Court flavor, including former Chief Justice Wallace Jefferson, current Chief Justice Nathan Hecht, former Justice Scott Brister, former Justice (now federal judge) Xavier Rodriguez, and former Chief Justice Wallace Jefferson (who is indeed speaking twice).

I’ll be moderating a breakout panel about electronic briefing on Friday morning, with Judge Stephen Higginson of the Fifth Circuit, Justice Virginia Linder of the Oregon Supreme Court, and Kevin Newsom of Bradley Arant Boult Cummings LLP.

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Four grants: disqualifying counsel; suing compounding pharmacies; government immunity × 2 [Oct. 24, 2014]

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The Court had a two-day private conference before this weekly orders list, leading to orders in more than four dozen petitions. Four cases were […]

The Court had a two-day private conference before this weekly orders list, leading to orders in more than four dozen petitions. Four cases were ultimately chosen for oral argument in January. The remaining petitioners and relators were not so lucky. The Court has posted the list at a new location.

New Grants

These are the cases chosen for oral argument with this orders list:

Compounding pharmacies under the health-care-liability act

This is a claim against a compounding pharmacy based on an antioxidant supplement. The supplement was provided to a doctor's office, which then provided it to patients. The pharmacy argued that this was a health-care-liability claim and, accordingly, should be dismissed because no expert report was timely filed. The plaintiff argues that filling what the response calls a "bulk" order for these supplements is not filling a prescription and does not fit the statute.

Proof needed to raise a fact question on immunity

This is a suit against a government unit by the family of two girls who were killed by riptides near the Texas City Dike. There were signs posted elsewhere, but not where the accident took place. The City won a plea to the jurisdiction. The petition argues that there was a fact question on immunity, in part because the presence of warning signs at other nearby locations signaled awareness of the problem — or at least would permit a fact-finder to draw such an inference.

Disqualification of counsel

The Court granted rehearing of its previous denial of this mandamus petition. The petition concerns disqualification of counsel for having hired a former employee of the other side's litigation team. The issues include how harm to the litigants should be weighed in this analysis and whether lesser alternatives to disqualification should have been explored.

Local government immunity from contract claims

The question is whether suit can be brought against the City for a contract alleged to have been entered in its proprietary (rather than governmental) capacity. The LCRA argues that this category of contract is not covered by immunity and that, if there were any doubt, it has also been waived by statute. The City argues that this proprietary-governmental distinction is inapplicable to contract claims and has also become unworkable in practice.

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My apologies for a bumpy road on the blog this week and next

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This weekend, the Texas court system rolled out a new website design for the Texas Supreme Court. The old “supreme.courts.state.tx.us” domain has been retired, with […]

This weekend, the Texas court system rolled out a new website design for the Texas Supreme Court. The old “supreme.courts.state.tx.us” domain has been retired, with the Court’s information now folded into the larger “txcourts.gov” domain that already handles the courts of appeals. The new page format is cleaner and more modern. It will be good for humans with taste.

The software scrapers that feed this blog are, unfortunately, still trained for the old website. I’ve shut down the scrapers for a short bit until I can re-train and re-test that software. That should freeze the data in place as things stand now.1

A compressed work schedule will prevent me from opening the code editor this week. My best estimate is that the blog will return to normal operation sometime the week of October 27th or the week of November 3rd.

Update 10:00am: Among the items that relocated were the Court’s previous slip opinions. Links that formerly went to a specific opinion now go to the Court’s main page.

I’ve written before about how entangled this blog is with my docket-tracking software. One side benefit is that, when there is some major change to the Court website, I can implement a change in one place and have the fix ripple through the blog archive. (This is not my first rodeo.)

Today’s payoff is this: I’ve written one quick fix for the opinion links in recent blog posts and some data tables. Those should now take you to my archived copy of the slip opinions, rather than to the Court website itself.2 This fix doesn’t make the scrapers any smarter. But it does make the blog a little more usable in the meantime.

  1. If you see some glitches that crept into the data pool before the shutdown — such as case names disappearing from old blog posts — those should naturally resolve themselves once the system is re-trained and the scrapers can reanalyze the pages. []
  2. This fix is not rolled out for posts older than mid-2012. The deeper archive can be fixed eventually, but not this morning. []

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A quiet orders list [Oct. 17, 2014]

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It was a quiet orders list today, with no opinions or grants. The Court heard oral arguments this week, and there was no internal […]

It was a quiet orders list today, with no opinions or grants. The Court heard oral arguments this week, and there was no internal conference at which more fully developed petitions might have been considered.

The Court’s calendar shows a two-day private conference next Tuesday and Wednesday.

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A quiet orders list [Oct. 10, 2014]

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With its orders list this week, the Texas Supreme Court did not grant review in any new cases or issue any opinions.

The Court traveled to […]

With its orders list this week, the Texas Supreme Court did not grant review in any new cases or issue any opinions.

The Court traveled to Texas Tech University on Thursday to hear oral arguments in two cases:

UNIVERSITY OF TEXAS AT ARLINGTON v. SANDRA WILLIAMS AND STEVE WILLIAMS, No. 13-0338

Heard at oral argument on October 9, 2014

*   *   *

The courtroom facility at Texas Tech is very modern and wired for video cameras, and the arguments are now available on the State Bar’s oral argument page. The camera perspective is a little different — more of a jury’s-eye view of the room, which makes sense for a teaching courtroom.

See also: “Texas Supreme Court justices hear seatbelt evidence, sports injury cases at Tech law”

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School finance litigation returns to the Texas Supreme Court

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It’s now up to the Texas Supreme Court to decide whether to give its own guidance to the Texas Legislature about funding local school districts […]

It’s now up to the Texas Supreme Court to decide whether to give its own guidance to the Texas Legislature about funding local school districts or to leave in place the district court’s judgment striking the system down.

School finance litigation returns to SCOTX

The AG's office filed its notice of appeal in the latest round of school-finance litigation. As expected, this notice was filed as a direct appeal to the Texas Supreme Court, bypassing the intermediate level of review. A group of school districts has also filed its own notice of appeal.

This kind of direct appeal is permitted in certain narrow circumstances, a process I've written about before. The previous round of litigation in 2005, West Orange Cove II was also a direct appeal. West Orange Cove I, however, took the more usual route through the intermediate courts.

The next step is for the parties to formally ask the Texas Supreme Court to accept jurisdiction. Mirroring the process for direct appeals in the U.S. Supreme Court, this is done through filing a Jurisdictional Statement that stands in place of a petition for review. If the Court wishes to review the case, it will do so by 'noting jurisdiction' and setting the case for full briefing and future argument.

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One new opinion, one revised opinion, and six grants [Oct. 3, 2014]

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With this week’s orders list, the Texas Supreme Court issued one new opinion, revised one of its opinions from June, and chose six new cases […]

With this week’s orders list, the Texas Supreme Court issued one new opinion, revised one of its opinions from June, and chose six new cases for argument this fall.

The court of appeals can look beyond a recital in the judgment when evaluating a restricted appeal

A party who does not participate in the trial court hearing that leads to the judgment being challenged can file a notice of restricted appeal for up to six months after judgment, as compared to the normal 30-day notice of appeal deadline. The wrinkle here is that the judgment recited that the party had appeared at the key hearing — while other aspects of the trial court record indicated that she had not.

The underlying dispute involves child custody. About two years after a divorce, the father moved to modify the court's custody order to appoint him sole managing conservator. A hearing was set for September 2011, and while the father appeared by telephone, the mother did not. The trial court did not enter an order until November 2011. That order, in turn, began with recitals stating that the hearing occurred in November 2011 and that the mother appeared.

The Supreme Court held that the court of appeals was not bound by the recital on the face of the judgment and, instead, should have considered the other indications in the record that — here, at least — conclusively established that the relevant hearing was the one that took place in September 2011.

The Court emphasized that this record was truly overwhelming:

Importantly, nothing in the record indicates the hearing took place in November 2011. And at least eight references in the record, including portions of the trial court’s docket sheet and the reporter’s record, conclusively confirm the hearing occurred in September 2011 and the petitioner did not participate.

When the record is less conclusive, a party may have a much more difficult time trying to challenge an incorrect recital in a judgment that threatens to deprive the appellate courts of jurisdiction.

Slight revision to the Ford v. Castillo opinion

The Court revised its opinion in FORD MOTOR COMPANY v. EZEQUIEL CASTILLO, INDIVIDUALLY, MARIA DE LOS ANGELES CASTILLO..., No. 13-0158 , the fraud case growing out of a note sent by a juror asking about the amount of damages, inducing a quick settlement. (See previous post.)

The new opinion addresses at least two issues noted in the rehearing motion. First, it rejected the argument that Ford’s reliance on the note was unreasonable because juries can send notes about damages without having yet resolved the merits. The original opinion had not addressed this argument. On rehearing, the Court explained that, given the context here and the text of the note itself, the evidence was legally sufficient on this element.

Second, the Court remanded on the issue of factual sufficiency. The court of appeals had not reached that issue, and the court’s original opinion did not address it. On rehearing, the petition urged that the Court remand to the court of appeals so that it could consider the factual sufficiency challenge.

To accomplish that, the Court granted rehearing, issued this new opinion replacing its previous one, and remanded to the court of appeals.

Grants

This orders list includes six grants and twenty denials of review for petitions that had been fully briefed on the merits.

These are the six grants:

Expert testimony about causation

This petition challenges a jury verdict that certain chemicals caused a fire within a facility storing many other chemicals, on the basis that (1) the expert's opinions were not supported by a sufficient foundation and (2) the evidence was legally insufficient.

Among the issues identified in the petition:

  • that it "credits expert testimony that damages are 'consistent with' a particular
    causation theory rather than requiring probative evidence of causation"

  • that it includes "proof of causation by process of elimination"

  • that they expert testimony was admitted without "requiring each part of the causation theory to be supported by testing or other scientifically reliable evidence"

  • that it "[d]isregards undisputed test results conducted by a defendant’s experts that
    disprove a plaintiff’s theory"

JAW THE POINTE, LLC v. LEXINGTON INSURANCE COMPANY, No. 13-0711

Set to be argued on January 13, 2015
Whether a misrepresentation in a babysitting flyer is a "substantial cause" of an eventual sexual abuse

The family of a child who was abused by a babysitter brought this claim against the babysitter's mother, who had made a misleading flyer about his trustworthiness as a babysitter, and the church that distributed that flyer. The allegation is that he was "troubled" with known psychiatric issues and that on the second babysitting session, he sexually abused two young boys. The jury found the defendants liable.

The court of appeals reversed and rendered, concluding that the evidence of causation presented here was legally insufficient based on Doe v. Boys Club of Dallas, also a sexual abuse case. In Boys Club, the Court held that the chain of causation had been essentially broken by other links between the abuser and the victim's family, such that the original lies were no longer a "substantial factor" causing the injury.

The petition asks the Court to hold that Boys Club was not meant to be a blanket protection for those whose misrepresentations might be linked to sexual abuse. The respondents argue that the sexual abuse was not the "natural and probable" result of the misrepresentation because the conduct was so extraordinary that it broke the chain of causation.

When does post-judgment interest start to accrue?

WAYNE VENTLING v. PATRICIA M. JOHNSON, No. 14-0095

Set to be argued on January 13, 2015

In a quite long-running case, the dispute here is how to determine the start date for post-judgment interest when the original judgment goes up on appeal and is partially changed on remand.

The petition contends that the interest should be computed beginning in 2012. It argues that the original 1998 judgment was not itself final — that it was an interlocutory order not itself appealed to the court of appeals. It also argues that the substantive nature of the remand (involving the introduction of new evidence, some by the plaintiff) warranted treating the 2012 award as the starting point for computing interest.

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A day for certified questions [Sep. 26, 2014]

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It was a Fifth Circuit-focused day on the Texas Supreme Court orders list. The Court accepted one new certified question and scheduled another for […]

It was a Fifth Circuit-focused day on the Texas Supreme Court orders list. The Court accepted one new certified question and scheduled another for oral argument.

Request denied for additional argument time

The other order of interest to practitioners might be the Court’s refusal to allow additional time for oral argument in KCM FINANCIAL LLC, R.J. SIKES, ROGER SIKES... v. BETTY LOU BRADSHAW, No. 13-0199 . The parties jointly made the request, suggesting that the facts suggested more than two “sides” and that each petitioner’s counsel thus needed 20 minutes of his own. (motion PDF). The Court decided, instead, to leave the parties with the original 20 minutes per side.

We don’t know how the Court would have reacted to a request for a more modest quantity of additional time, but this denial is a good point of reference the next time a client asks why you are not requesting more time for their case.

Issue Summaries

The Kroger case is set for argument on Dec. 9, 2014. As soon as the Court’s docket page notes that among the calendar entries, the case-status box below should also reflect it.

Does common language in a CGL policy have an ambiguity about coverage for product defects?

U.S. METALS, INCORPORATED v. LIBERTY MUTUAL GROUP, INCORPORATED, DOING BUSINESS AS LIBERTY INSURANCE CORPORATION, No. 14-0753

Chosen for future argument by order issued September 26, 2014

This suit grows from an unsatisfied customer of US Metals. Exxon bought and installed 350 pieces of drilling equipment (well neck flanges) but then later determined that they were the source of some problems, requiring the equipment — which had been installed by being welded in among other heavy equipment — to be removed at substantial cost, both in terms of raw expense and lost production during the time that the wells were not operating.

US Metals held a commercial general liability insurance policy that protected it against claims for "property damage" and "bodily injury."

But US Metals's insurer refused to cover the defense of this claim, citing certain exclusions related to damage caused by deficiencies related to "your [the insured's] product", as well as certain types of damage claims for "impaired property."

The Fifth Circuit has now asked the Texas Supreme Court to address, as a question of Texas law, whether two of the pivotal terms in the contract language defining this exclusion ("physical injury" and "replacement") are ambiguous and, if not, what they mean under Texas insurance law.

In making this request, the Fifth Circuit emphasized its view that this was a question of potentially broad importance:

The Texas Supreme Court’s interpretation of these terms will have far-reaching implications due to the commonality of these exclusions within CGL policies. As such, the answer to our certified questions will affect a large number of litigants. No Texas court or any other state or circuit court has determined whether the terms "physical injury" or "replacement" found within the "your property" and "impaired property" exclusions are ambiguous.

This legal point will now be briefed in the Texas Supreme Court, and the case will most likely be heard at oral argument next spring. You can read more details in the Fifth Circuit's opinion certifying the question.

What duty does an employer owe to an employee regarding a premises defect?

RANDY AUSTIN v. KROGER TEXAS, L.P., No. 14-0216

Heard at oral argument on December 9, 2014

This is a slip-and-fall case with a twist: The injured person was an employee who was cleaning up the spill:

Kroger's Safety Handbook provided that store management should "make certain that the Spill Magic Spill Response Stations [were] adequately supplied at all times" and available in numerous places throughout the store. Spill Magic allows an employee to clean a liquid spill with a broom and dustpan, and — according to Kroger's Safety Handbook — reduces the likelihood of a slip-and-fall by 25 percent. Because there was no Spill Magic on premises that day, Austin cleaned the spill with a dry mop instead. When Austin moved on to the men's restroom, he saw that the same substance covered about 80 percent of the floor. Austin placed "Wet Floor" signs inside and outside of the room, and proceeded to mop the spill for about thirty to thirty-five minutes. Austin took "baby steps" in and out of the restroom to change out the mop head numerous times, and successfully removed about thirty to forty percent of the liquid.

At about 10:30 a.m., while continuing to remedy the spill, Austin fell. He sustained a left femur fracture and severely dislocated his hip. He spent nine months in the hospital and underwent six surgeries, and his left leg is now two inches shorter than his right.

The employer did not subscribe to the Texas Workers Compensation system, so the claim falls through to common law.

The federal court decided that at least part of the case — a conventional negligence theory based on failure to provide the employee with "a necessary instrumentality" (the Spill Magic) — should be remanded to the federal district court for further proceedings. What it did not know was whether the premises liability theory was also viable — or whether that theory is precluded under Texas law.

So, it has certified the question:

Pursuant to Texas law, including §406.033(a)(1)–(3) of the Texas Labor Code, can an employee recover against a non-subscribing employer for an injury caused by a premises defect of which he was fully aware but that his job duties required him to remedy? Put differently, does the employee’s awareness of the defect eliminate the employer’s duty to maintain a safe workplace?

The Fifth Circuit detailed its analysis of the underlying "tension" within these branches of Texas tort law in its opinion certifying the questions.

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