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

Category: 'Order Lists'

A quiet orders list [Oct. 17, 2014]

October 17th, 2014 · Comments Off

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.

Tags: Order Lists

A quiet orders list [Oct. 10, 2014]

October 12th, 2014 · No Comments

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:


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”

Tags: Order Lists

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

October 5th, 2014 · Comments Off

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.


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"


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?


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.

Tags: Order Lists

No opinions or grants [Sep. 19]

September 19th, 2014 · Comments Off

The Texas Supreme Court issued a quiet orders list today, with no opinions or new cases chosen for oral argument.

The Court’s next internal conference is scheduled to begin September 30, and its next oral arguments will be on October 9 (to be held at Texas Tech University).

Tags: Order Lists

Catching up on recent (quiet) summer orders lists

August 18th, 2014 · Comments Off

The Texas Supreme Court is returning from a summer break, and as it happens, so am I.

This most recent August 15th orders list was a quiet one, with no opinions issued and no grants.

The same was true the week before, the week before that, the week before that, and the week before that.

Looking forward, the Court’s public calendar shows two, two-day private conferences over the next two weeks, so it’s fair to expect some end-of-term orders to reduce the number of argued and pending cases that will be carried forward into the Court’s new accounting year on September 1.

Tags: Order Lists

Eight sets of opinions, one grant [Jun. 20, 2014]

June 20th, 2014 · Comments Off

With today’s orders list, the Texas Supreme Court issued opinions in eight cases and chose one new case to be argued this October.

The orders included two dissenting opinions — which are the first since September’s IN RE STEPHANIE LEE, No. 11-0732 . It’s been a very agreeable year so far at the Court, which poses a challenge to those of us who track court statistics.

The rule of thumb at the U.S. Supreme Court is that the more divided cases tend to linger until the end of the Term. We’ll see if the same pattern holds this year in Austin.

Read much more

Tags: Order Lists

Three opinions, one grant – and argument dates are assigned for the Fall calendar [Jun. 13, 2014]

June 16th, 2014 · Comments Off

With its June 13, 2014 orders list, the Texas Supreme Court issued opinions in three cases. It also granted review in one new case and assigned its first argument dates for the fall.

I’ve also posted summaries from the June 6 orders and a long-overdue summary of a case about vacating an arbitration award for evident partiality.


“Check[ing] the causation box” is harder than it may seem

The Court held that a slander-of-title claim against a tenant (who is alleged to have undermined a property sale) failed for lack of evidence of causation.

The Court emphasized that causation in this context has two aspects. It is not enough that the defendant’s conduct was a factor in causing the result. What the Court requires is evidence that, but-for the action, the harm would not have occurred.

Here, the “witnesses … never testified there was a possibility of a different outcome had [the tenant] not sent its letter.” The Court was also dismissive of the idea that some magic words in testimony could substitute for richer evidence suggesting causation. It said:

even if counsel were able to get a witness to agree to language reflecting the causation standard at issue in this case, the bare assertions … in response to carefully worded questions from counsel do not constitute evidence of causation.

In other words, a transcript that tracks the language of court opinions is not good enough to let you sleep well at night. “There is no ‘magic language’ that checks the causation box in a sufficiency-of-the-evidence review.”

Unconscionability of arbitration clauses applied to DTPA and attorney’s fee claims

A contract for the sale of cotton included an arbitration clause, selecting arbitration rules that did not at the time permit attorney’s fees.

When the cotton grower brought suit, the purchaser (Venture) invoked the arbitration clause. The district court refused to enforce the clause, and the court of appeals affirmed on the ground of unconscionability. The court of appeals focused, in particular, on the plaintiff’s allegations of a DTPA claim and request for contract attorney’s fees — remedies that were effectively barred by the arbitration procedures chosen here. The court of appeals rejected the argument that the offending portions of the arbitration should have been severed to save the rest.

The Texas Supreme Court reversed. As to the DTPA claim, it agreed with the court of appeals that requiring arbitration would be improper under the precedent of IN RE POLY-AMERICA, L.P., IND. AND D/B/A POL-TEX INTERNATIONAL, AND POLY-AMERICA GP, L.L.C., No. 04-1049 , in which the Court held that requiring arbitration of a workers compensation remedies was unconscionable. The DTPA claims at issue here are different in one way: it is at least possible for them to be waived. But this contract did not include the specific language and form elements that the law requires for an effective waiver. Thus, the Court held, the DTPA claim here cannot be arbitrated under this clause.

But the Court, unlike the court of appeals, held that this aspect of the arbitration clause could be severed, leaving the rest in place.

The opinion also has an interesting discussion of how waiver might work differently in interlocutory appeals. Here, the argument was that Venture should have expressly asked the trial court for this kind of severance before perfecting its interlocutory appeal. The Texas Supreme Court rejected the idea that this “waiver” would prevent it from reaching the question:

But this is an interlocutory appeal, and the case remains pending in the trial court. We are therefore unsure what Venture has waived. If the court merely means to suggest that Venture waived the right to complain about severance in this interlocutory appeal, the waiver argument serves only to delay a decision in the case. Conservation of time and resources recommend that we consider the issue now because nothing prevents Venture from urging severance in the trial court and, if denied, from renewing its complaint in yet another interlocutory appeal.

A guaranty agreement waives a party’s right to offset for a foreclosure sale

In a foreclosure auction, the lender has an advantaged position because they can bid using a fraction of the debt they are owed, rather than putting up cash. The Property Code recognizes that this can result in a distorted auction, one in which the seller has no incentive to bid high and other buyers do not wish to compete — leading to a sale price well below market value.

Section 51.003(c) gives the person whose property has been foreclosed some protection in this situation. If the lender buys the property in foreclosure, the borrower can prove up the true market value and receive an offset of their debt for the difference.

The wrinkle here is that the commercial loan was personally guaranteed by a principal of the business, Moayedi.

That guaranty agreement, in turn, waived “any defense … each and every such defense being hereby waived by the undersigned Guarantor.”

The Court first construed Section 51.003. It rejected Moayedi’s argument that this statue was not a defense at all, but rather an alternate way of calculating a deficiency judgment (with the same practical effect). The Court quoted the full statute and said that “the language of the statute presupposes the traditional definition of deficiency [and] provides an offset … In other words, it provides a defense.”

It then held that Moayedi’s general waiver extended to that defense and was effective.

Petition Grant

More questions about Section 51.003

Having just issued an opinion 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.

The petition in PLAINSCAPITAL BANK v. WILLIAM MARTIN, No. 13-0337 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.

Argument Schedule

The Court assigned argument dates for its pending cases. This probably fills the September calendar and (almost) fills October. The October calendar includes, along with the usual sitting in Austin, a trip to Lubbock to hear arguments at Texas Tech University’s law school on October 9.

Tuesday September 16

Wednesday September 17

Thursday September 18

Thursday October 9 [at Texas Tech Law School]

Tuesday October 14

Wednesday October 15

Tags: Order Lists

Seven opinions and two grants [June 6, 2014]

June 11th, 2014 · Comments Off

With its June 6, 2014 orders list, the Texas Supreme Court issued opinions in seven cases. It also granted review in two more cases to be argued this fall.

The implied warranty of merchantability can survive into the market for used goods

The question was whether the engines in a fifty-foot yacht still carried the manufacturer’s implied warranty of merchantability after the boat was re-sold to a new buyer.1

Ultimately, the Court held that it does, at least here. (“Our answer: It depends.”)

As a general matter, the Court held that the implied warranty could still be asserted against the manufacturer even for goods marketed as “used.”

The Court recognized, however, that a waiver at the first step in the chain — by the initial purchaser — could cut off that warranty. But it held that this waiver argument had not been properly raised here because it was not timely raised as an affirmative defense under Rule 94.

A parental-termination case about more general questions of appellate procedure

The involuntary-termination statute sets out twenty different courses of parental conduct, any one of which may serve as a ground that satisfies the statute’s first prerequisite for termination. The twenty grounds are subparts (A) through (T) of Family Code §161.001(1).

The trial court found sufficient evidence to terminate a father’s parental rights for subparts (D) and (E), entering judgment to that effect. The court of appeals reversed, concluding that there was factually insufficient evidence of those grounds.

In the Texas Supreme Court, the State (through DFPS) argued that subpart (O) — a provision about failure to comply with prior court orders, which DFPS had urged below but which the trial court did not list in the judgment — also supported termination. DFPS argued that the trial court had implicitly found in its favor on that ground under Rule 299 or, alternatively, that the evidence of a subpart (O) violation was so conclusive that no finding should have been necessary because no factual dispute was even presented.

On the procedural question, the Texas Supreme Court held that the concept of an implied finding under Rule 299 about “omitted unrequested elements” of a claim did not apply where the party had requested the element. Because DFPS advanced the ground below, Rule 299 provided no basis to read it into the judgment.

On the substantive question, the Court held that the evidence was not conclusive of a violation of subchapter (O). Framing the issue, it noted the potential breadth of accepting the DFPS position:

Parents frequently fall short of strict compliance with a family-service plan’s requirements. The Department’s argument, however, accepts nothing less and thus would require termination for a parent’s imperfect compliance with the plan.

The Court held, instead, that this was a matter of degree in which “whether a parent has done enough under the family-service plan to defeat termination under subpart (O) is ordinarily a fact question.”

For that reason, mere evidence of non-compliance — even conclusive evidence that a parent was technically not in compliance — was not enough to conclusively satisfy subpart (O) “where questions of compliance and degree are raised.” Instead, the Court saw that as an embedded fact question, requiring (at least in these circumstances) some type of fact finding that the non-compliance was substantial enough to warrant termination.

Finding that subpart (O) presented an unresolved fact dispute, the Court declined to find this basis for termination to be conclusively established. It therefore left in place the court of appeals’s order remanding this to the trial court for further proceedings.

“Does a firefighter who refuses to fight fires have a ‘disability’ under state or federal law?”

It’s an old truism that how you frame the question can shape the answer. Here’s how the opinion of the Court framed this one:

Does a firefighter who refuses to fight fires have a “disability” under either state or federal law?

The answer, unsurprisingly, was no.

The analysis rejected the argument that this was a manifestation of some deeper issue, such as depression or another species of mental illness. The Court focused on the specific manifestation of the condition at work — what it called “[b]eing unable to set aside the normal fear of entering a burning building,” which is not something that “limits a major life activity” outside of work. And because there was “no evidence that the City was aware” of any treatment for depression, the Court found no evidence that the decision was motivated by any such disability.

Immunity is not waived against intentional torts

This case is about one of the quirks of Texas’s tort claims act, which waives immunity for certain kinds of negligent acts by governmental employees — but does not waive immunity for intentional torts.

Here, the tort claim involved injuries suffered during an arrest in which excessive force was used. The court of appeals concluded that, because the injury itself was not intended, the nature of this claim sounded in negligence and thus could fit within a waiver of immunity.

The Texas Supreme Court disagreed. It cited its own precedent holding that a battery tort could sound even where the actual physical contact was indirect ‐ a dinner plate snatched from the hand of someone waiting in line — so long as the nature of the contact was offensive.2 The Court concluded that “when an arrest, lawful at its inception, escalates into excessive-force allegations, the claim is for battery alone.”

Two per curiams about police officers sued over conduct during an arrest

With THE CITY OF WATAUGA v. RUSSELL GORDON, No. 13-0012 decided, the Court also issued per curiam decisions in two cases involving claims brought against police officers for alleged misconduct during an arrest:

Both cases were, procedurally, about §101.106(f) of the Tort Claims Act and held that the claims against the officer should be dismissed.

A Rule 11 agreement not embodied in a judgment cannot be enforced after plenary power expires

The parties here reached a settlement, memorialized that agreement in a Rule 11 agreement filed with the trial court, and had the trial court dismiss the underlying claims.

The question is whether the trial court has continuing jurisdiction to enforce that settlement or whether, instead, the settlement agreement is just a contract that would require a new lawsuit to enforce.

While the trial court has ongoing power to enforce its judgment, the order of dismissal here did not incorporate the terms of the Rule 11 agreement. For that reason, the Court holds that the trial court’s power to enforce those settlement terms ended soon after the dismissal order was signed.

Grants of Review

  1. Insert your own jokes about “the two happiest day of a boat owner’s life” here. []
  2. The case is Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967), which is wedged into my memory from first-year torts. []

Tags: Order Lists