Supreme Court of Texas Blog: Legal Issues Before the Texas Supreme Court

Category: 'Weekly Previews'

What’s on the SCOTX argument calendar for September?

September 15th, 2014 · Comments Off

This week brings the Texas Supreme Court’s first full argument sitting since late February. The Court will hear seven cases, spread across September 16, 17, and 18.

Amending a petition after a 101.106 motion is filed

This petition asks one question: "Where a plaintiff’s initial petition asserts only tort claims against a governmental unit and its employees, and the unit moves to dismiss the employees under section 101.106(e), must a trial court grant the motion to dismiss even if the plaintiff amended her pleading to drop the tort claims and add other claims before the court rules on the motion?"

Here, after a state entity moved to dismiss tort claims brought against it and an employee, the plaintiff amended to add federal Section 1983 claims. The state argues that this amendment was improper (and the whole case must be dismissed) because it had filed a Section 101.106 dismissal motion prior ot the amendment.

The Court originally denied the petition for review in April 2013, but it granted rehearing in October 2013, reinstating the case to the docket and requesting full merits briefing. It granted the case for oral argument in June 2014.

A contractor who promises to work in a “good and workmanlike manner” does not forfeit CGL coverage


Set to be argued on September 16, 2014

This case reaches the Texas Supreme Court by certified question from the U.S. Fifth Circuit in New Orleans.

In this branch of the litigation arising from the 2010 Deepwater Horizon drilling rig explosion, the question is not how much is paid out but which entity will ultimately bear the cost.

BP contracted with Transocean to provide "additional insured" protection covering Transocean's operations above the water line, while BP engaged in drilling below the water line. That narrow limitation was contained in the business contracts between the entities, while the insurance contracts themselves (arguably, at least) did not mirror the same limitation.

The first major issue is about construing the various contracts. BP contends that only the insurance policy language matters in deciding whether it is an "additional insured," citing cases such as EVANSTON INSURANCE COMPANY v. ATOFINA PETROCHEMICALS, INC., No. 03-0647. The insurers contend that the extent of coverage they agreed to provide to BP was limited to the scope of Transocean's agreement to provide that coverage, and thus excludes the claims here.

The second major issue might have broader implications. BP contends that if there is any ambiguity about whether it is covered, the policy should be construed against the insurer and in favor of the insured. The insurers contend that the doctrine does not apply in this sophisticated commercial context.

When the State condemns land containing a billboard, what compensation is due?


Set to be argued on September 17, 2014

In this case, the State (supported by some local governments) challenges how billboards were valued in condemnation. The landowners contend that the installed billboards are part of the realty warranting compensation for their lost income. The State argues that they should, instead, be seen as a type of personal property that can be relocated away from the property being condemned.

Fraud in mineral leases

A mineral owner sued the operator for fraud that occurred more than four years before suit, the effects of which continued in the stream of payments to the current day. The operator responded with, among other arguments, a limitations defense. The mineral owner contended that the discovery rule should have tolled that limitations period because it reasonably relied on the operator's representations. The operator contends that any such reliance was unreasonable because Railroad Commission records contained the needed information.

The petitioners present four issues:

  • Should limitations have been tolled here? In part, this asks whether the special legal duties that an operator owes to the mineral owner make the owner's reliance on these statements more reasonable.

  • Did the court of appeals err in reversing and rendering judgment on the breach of contract claim? In part, this issue asks whether a defendant can obtain rendition on such a claim without having moved for summary judgment.

  • Even if the statute of limitations applies, does it only bar recovery for the oldest payments made under these contracts or does limitations also bar recovery for new payments so long as the alleged misconduct was more than four years in the past?

  • Was there any basis to refuse attorneys fees here given the parties' stipulations on that point?

The respondents challenge some other aspects of the judgment, including whether there was sufficient evidence that the parties agreed to a higher rate of post-judgment interest (here, 18% rather than the 5% that would have otherwise applied).

The latest:
  • Three opinions, one grant (June 16, 2014)
  • Construing an insurance policy that covers multiple properties hit by a single hurricane


    Set to be argued on September 18, 2014

    The insured suffered losses across a number of properties during Hurricane Rita. This petition concerns how to determine the insurers' maximum liability. Is it limited to the "scheduled" value of each property under the policy, taken separately? Or do other provisions in the policy allow the insured to recover the full value of those properties, staying within other limits of the policy?

    The insurer contends that the policy, as a whole, should be read as a "scheduled" policy and thus construed in line with a national body of law that would limit its liability here. The petition accuses the court of appeals of coming up with what it labels a "hybrid" policy that would lead to absurd results.

    The property owner contends that the court of appeals properly construed the actual policy language agreed here, and that this policy language — not a label like "scheduled" or "hybrid" policy — is what should control the outcome.

    The court of appeals heard the case en banc and divided 4-3, with one of the four justices in the majority writing separately to encourage the Court to grant review.

  • Three petitions granted (February 16, 2014)
  • Three opinions, one grant (June 16, 2014)
  • Unresolved questions about Section 51.003


    Set to be argued on September 18, 2014

    Having recently issued an opinion about lender's rights of offset under Section 51.003 in MEHRDAD MOAYEDI v. INTERSTATE 35/CHISAM ROAD, L.P. AND MALACHI DEVELOPMENT CORPORATION, No. 12-0937, the Court has decided to go back for more.

    This petition asks more questions about Section 51.003, including: (1) whether it creates a right to an offset when a lender resells the property on the open market rather than a foreclosure sale and (2) how to compute fair market value to compute the offset.

  • Three opinions, one grant (June 16, 2014)
  • When does city code enforcement raise a takings issue?


    Set to be argued on September 18, 2014

    The City of Houston ordered the owners of a condominium to vacate until they repaired the units to meet city code. In a separate suit, the City was found to have violated the owners' due process rights. In this suit, the owners sued the City for a regulatory taking. The court of appeals agreed that the property owners had a valid claim that could proceed.

    The City presents two issues:

    1. Can an invalid order to vacate a condominium be a taking, even without some actual damage or use of the property in question?

    2. Does the order in this case represent the kind of "public use" that constitute a taking or is it instead what the City calls "a nonpublic, noncompensatory use of a governmental entity’s police powers"?


    Tags: Weekly Previews

    Issues in the October sitting; new Fifth Circuit blog; first report on the 2012 SCOTX elections

    October 6th, 2011 · 1 Comment

    New Fifth Circuit blog

    David Coale, former head of the State Bar appellate section, has started a new blog about the Fifth Circuit. It’s called 600 Camp, after the address of the John Minor Wisdom Courthouse in New Orleans.

    Mandatory appellate mediation turns out to be mandatory

    Disputing has a post about what happens when a party walks out before a court-ordered appellate mediation has run its course. The title gives away the ending: “Texas Court of Appeals Dismisses Appeal Because Appellant Walked Out of the Court-Ordered Mediation”

    This happened in the Waco Court of Appeals. The court’s notice specified that dismissal would follow if the appellant did not attend the mediation. The court’s opinion is here.

    Election season is underway

    Morgan Smith of the Texas Tribune has the first piece I’ve seen about the 2012 court elections. Her story is about former Justice Steve Smith’s filing to, once again, run against Justice Willett for the Republican nomination.

    Oral Arguments This Week

    You can check out past and current arguments on the St. Mary’s video archives page.


    • SafeShred, Inc. v. Louis Martinez, III, No. 10-0426. Are there exemplary damages for a Sabine Pilot claim (wrongful firing for an employee refusing to do an illegal act) and, if so, was the amount of exemplary damages awarded here excessive? (>> earlier post)

    • Shell Oil Company, et al. v. Ralph Ross, No. 10-0429. Broadly, the case is about how the statute of limitations applies to royalty claims when there is an allegation of fraudulent concealment.

    • Weeks Marine, Inc. v. Maximino Garza, No. 10-0435. A Jones Act (maritime) case about how to divide responsibility between the worker and the employer. >> earlier post


    • Natural Gas Pipeline Company of America v. William Justiss, et al., No. 10-0451. In a nuisance claim about a reduction in property value alleged to have been caused by the gas pipeline: (1) how much worse must the condition get to re-start the statute of limitations and (2) what evidence is proper to show the reduction in property value? A potentially much broader issue here is the petitioner’s request for the Court to limit the “property owner rule” that (traditionally) lets an owner testify as to its value without the need to hire an expert witness.

    • Hearts Bluff Game Ranch, Inc. v. The State Of Texas and the Texas Water Development Board, No. 10-0491. Can the State’s actions, which were alleged to have directly interfered with the issuance of a federal permit, constitute a taking under state law? >> earlier Texas Tribune article

    • Matthew W. Wasserman, M.D. v. Christina Bergeron Gugel, No. 10-0513. Do “health care liability claims” include allegations of assault or sexual assault by health-care providers? >> earlier post


    • Port Elevator-Brownsville, LLC V. Rogelio Casados, et al., No. 10-0523. Does the bar against lawsuits created by the workers compensation law apply equally to suits by temporary workers?

    • In re United Scaffolding, Inc., No. 10-0526. How much specificity is needed in an order granting a new trial based on the great weight of the evidence?

    • Rusk State Hospital v. Dennis Black, et al., No. 10-0548. What should courts do when a government agency raises sovereign immunity during a limited interlocutory appeal challenging something completely different?

    Tags: Case Notes · Elections · News and Links · Weekly Previews

    This week at SCOTX [Sep. 26, 2011]

    September 26th, 2011 · Comments Off

    On the Court’s calendar this week:

    • Monday and Tuesday: The calendar shows a private conference of the Justices. This is the Court’s first formal conference since August.

    • Friday: Regular weekly orders list

    The next oral-argument sitting begins next Tuesday. The next conference date is October 17, 2011.

    Tags: Weekly Previews

    This week at SCOTX [Sep. 19, 2011]

    September 19th, 2011 · Comments Off

    On the Court’s calendar this week:

    • Through Wednesday: The calendar shows the Texas Center for the Judiciary’s annual judicial conference. You can read more at this link.

    • Friday: Regular weekly orders list

    The next internal conference of the Justices will be next week.

    The Temple of Justice

    That’s the name given to the Washington Supreme Court’s building, and it is also the name given to a new website devoted to that court. is a joint project of the political science department of Washington State University and the Oyez Project.

    It may be too early to tell, but the focus appears to be on case summaries and packaging the courts’ public information in a more user-friendly form.

    Spelling made-up words

    “Frac, Frack, or Hydrofrack?” (Blawgletter)

    No, this isn’t a Battlestar Galactica post. Instead, Barry Barnett takes a look at different ways of turning “hydraulic fractioning” into a verb.

    In Railroad Commission Of Texas v. Texas Citizens For A Safe Future And Clean Water, No. 08-0497, the Court chose the form “fracing”:

    Fracing a well entails pumping large volumes of water and sand into reservoir rock, which then mixes with saline formation water and must be flowed back out of the well before production can begin.

    Barnett suggests that the hard “k” of “fracking” would make this process sound ominous, while omitting the “k” (“fracing”) makes it sound “almost benign.”

    The insurance/reinsurance case draws more attention

    Last Wednesday, the Court heard oral argument in Texas Department of Insurance v. American National Insurance Co. and American Life Insurance Co. of Texas, No. 10-0374, a case about the scope of the state insurance agency’s regulatory authority. An article in Business Law Daily talks about some of the amicus interest in this case: “National Trade Group Defends Texas Appellate Ruling On Reinsurance”.

    Tags: Weekly Previews

    This Week in SCOTX [Sep. 6, 2011]

    September 6th, 2011 · Comments Off

    Here’s what is on the Court’s calendar for this week:

    • Labor Day (Monday)

    • The state bar’s Advanced Civil Appellate Seminar (Thursday & Friday). Three of the Justices will be speaking at a panel on Thursday morning, and Justice Hecht will be delivering the “Texas Supreme Court Update.”

    Oral argument advice from Justice Mosely

    Justice Jim Mosely of the Dallas Court has written “How To Deal with Questions from the Bench.”

    There’s some good advice here, starting with the equation “question = opportunity.” If your preparation time is spent polishing a speech instead of thinking about questions, you are missing what’s unique about appellate argument. Justice Mosely breaks down possible questions into four broad categories and offers some suggestions for dealing with each.

    Along the way, he made a point that I hadn’t seen put quite this way. The usual advice, of course, is to respond directly to questions. But:

    There’s one exception to the direct response rule: “Your honor, to answer your question I have to go outside the record.” If counsel doesn’t alert the court to that situation, he risks a counterattack from opposing counsel and a possible loss of credibility.

    If a complete or direct answer would take you outside the record, alerting the Court gives them a chance to decide whether they really want to know (as for a policy question) — or whether they want to focus on the procedural limits of the appellate record.

    Don’t Mess With Texas State Court Documents

    Rachael Samberg at the Stanford Law Library has a blog post about Texas’s efforts to preserve judicial records: “Don’t mess with Texas state court documents”

    Tags: Weekly Previews

    This Week at SCOTX [Aug. 29, 2011]

    August 29th, 2011 · Comments Off

    Here’s what is on the Court’s calendar for this week:

    • Last Day of the Fiscal Year (Wednesday): August 31st is the end of the fiscal year in Texas, as well as the traditional cutoff for the official court statistics. It is not unprecedented for opinions to be released on this day, even when it does not fall on a Friday.

    • Weekly Orders List (Friday): The smart money says there will be fewer than 19 opinions this week.

    Statistics are now updated

    The DocketDB opinion-statistics charts have been updated through the end of the term. After logging in, you can find these under the “Research Tools” menu.

    Tags: Weekly Previews

    This Week at SCOTX [Aug. 22, 2011]

    August 22nd, 2011 · Comments Off

    Here’s what is on the Court’s calendar for this week:

    • Conference (Tuesday/Wednesday): This is the Court’s last private conference scheduled for the fiscal year. I would expect the focus to be on finalizing opinions, especially in older pending cases.

    • Weekly Orders List (Friday): This one could be busy.

    Briefing Requests

    If you’ve been reading the sports pages, you might have heard that the Texas Supreme Court released at least one new briefing request. You might not have seen the whole list of recent requests on August 19th.

    Among the other requests, the Court asked for briefing in the Austin Court’s same-sex divorce cases, which follow the request earlier this month for briefing about the Dallas Court’s case.

    The Zoopreme Court

    I might be late to the party, but I just discovered The Zoopreme Court, caricatures of U.S. Supreme Court justices and leading cases that aim to fulfill the promise of “equal justice under paws.”

    You can start with the classic Otter Stewart or you might prefer the more Texas-themed John Paul Steervens.

    Tags: Weekly Previews

    This Week at SCOTX [Aug. 15, 2011]

    August 15th, 2011 · Comments Off

    Here’s what is on the Court’s calendar for this week:

    • Conference (Tuesday): This is the Court’s first private conference in more than a month. I don’t know if they will be finalizing any opinions, but I would not be surprised to see a flurry of petition denials, briefing requests, and perhaps a few new grants of review this Friday.

    • New Law Clerk Orientation (Wednesday/Thursday)

    • Weekly Orders List (Friday)

    “Perry This, Perry That”

    There was a little news from out-of-state this weekend that might affect coverage of the Texas Supreme Court in coming months.

    Beating that rush, the Texas Tribune ran an article last Friday about Governor Perry’s role in appointing a number of the Justices: “Supreme Court is Elected, but Bears Perry’s Stamp”. By my count, six of the current Justices were at one point appointed by Perry before winning election. One of those, Justice Lehrmann, had already won her party primary before being appointed to serve the few months before election day.

    The article has some thoughts about Perry’s philosophy of appointing judges.

    Justices 1836-1986

    I saw an announcement that the UT Law Library had redesigned the website for its “Justices of Texas 1836-1986″ project. It’s worth checking out if you’re a fan of Texas judicial history, even if it’s frozen at the sesquicentennial instead of our current dodransbicentennial.1 Don’t miss the cartoon drawings of early Justices, including Texas’s first chief justice.

    OCA review of legislation affecting the courts

    The Texas Office of Court Administration has released its report on the new legislation affecting the court system.

    “The Role of International Law in Texas Jurisprudence”

    A post by Carl Reynolds on his CourTex blog points out a paper by Martha Lackritz on the limited ways international law has been used in Texas cases.2

    2011 voting stats, coming soon

    I’m giving a little thought to which stats I should prepare once the Texas Supreme Court finishes up its fiscal year at the end of August. Do you have any favorite statistics or vote breakdowns you’ve seen for other courts? Do you prefer a web-based stat pack (as I’ve done in the past) or a PDF that might be easier to share or to print?

    1. Yes, I looked that up. []
    2. If you’re counting, this is the second time in a week that I’ve linked to something written by Martha. []

    Tags: Weekly Previews