Category: 'Order Lists'
The Court did not issue orders on the Friday after Thanksgiving. The next week, the Court heard oral arguments and then issued a fairly quiet orders list, disposing of cases that did not need to be held for the next conference.
The Court is having a private conference on December 9th and 10th. That is the final conference for the calendar year. (The next conference will begin January 14, 2014.)
Tags: Order Lists
With its November 22, 2013 orders, the Texas Supreme Court chose seven cases for oral argument in January 2014.
ALLEN CHADWICK BURBAGE v. W. KIRK BURBAGE AND BURBAGE FUNERAL HOME, No. 12-0563
– Cross-petitions in a defamation case. One side asks whether the damages here are supported by sufficient evidence and what is required to preserve error under *Casteel*. The other asks whether a permanent injunction against defamatory speech would also have been permissible.
TENASKA ENERGY, INC., TENASKA ENERGYHOLDINGS... v. PONDEROSA PINE ENERGY, LLC, No. 12-0789
– What is the standard for challenging an arbitration award on the basis that the arbitrator was not impartial?
VENTURE COTTON COOPERATIVE AND NOBLE AMERICAS CORP. v. SHELBY ALAN FREEMAN, ET AL., No. 13-0122
– When does a provision in a set of arbitration rules make a commercial arbitration agreement unconscionable?
Oil and gas (and other subsurface fluids)
ENVIRONMENTAL PROCESSING SYSTEMS, L.C. v. FPL FARMING LTD., No. 12-0905
– Should Texas recognize a common-law cause of action for trespass involving fluids far beneath the surface?
MEHRDAD MOAYEDI v. INTERSTATE 35/CHISAM ROAD, L.P. AND MALACHI DEVELOPMENT CORPORATION, No. 12-0937
– Whether the Texas statute designed to prevent lenders from obtaining a windfall recovery after below-market foreclosure sales can be waived, and if so, how specific must the borrower’s waiver be.
Maritime jurisdiction and the Dram Shop Act
SCHLUMBERGER, LTD. D/B/A SCHLUMBERGER INFORMATION SYSTEMS AND SCHLUMBERGER TECHNOLOGY CORPORATION v. CHRISTOPHER ARTHEY AND DENISE ARTHEY, No. 12-1013
– Whether maritime jurisdiction (and, thus, duties under maritime law) apply to a drunk-driving accident after a fishing event organized by the defendant.
LUBBOCK COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT AND TOMMY FISHER, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE BOARD OF DIRECTORS OF THE LUBBOCK COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT v. CHURCH & AKIN, L.L.C., No. 12-1039
– The petition asks about the scope of the waiver by local governments for entering into a lease that (it is alleged) did not involve the provision of goods or services.
Tags: Order Lists
With its November 22, 2013 orders list, the Texas Supreme Court issued opinions in three cases and chose seven more for oral argument in January.
This post describes the opinions; the grants are summarized in a separate post.
For what torts can a tenant who overstays a lease be sued by the landlord?
In an important case for landlord-tenant law, the Court clarified when a tenant who overstays a lease can be sued by the landlord in tort.
The lease here was a commercial one, with a laundry-services company leasing space in a commercial development. But as noted by Justice Guzman in her concurring opinion, the broader holding is also applicable to residential tenants.
Although the status was disputed through years of litigation, it was ultimately conceded that the contractual lease had been terminated when the landlord’s interest in the property was sold through foreclosure. The new owner demanded the tenant leave the premises, after which the tenant became a “tenant at sufferance.”
The majority opinion, written by Justice Boyd, held:
“[A] tenant at sufferance cannot be liable for breach of the previously-terminated lease agreement.” Once the lease is over, tort duties apply.
“[A] tenant at sufferance is a trespasser and can be liable in tort (although the extent of liability depends on the nature of the trespass), including, in this case, tortious interference with prospective business relations,” most commonly meaning the lost rental income from the property.
Justice Guzman wrote separately (joined by Justice Devine and Justice Brown) to discuss how this “‘tortification’ of landlord-tenant law” will affect residential tenants, rather than more sophisticated commercial tenants:
tenants will now potentially be required to defend against actions for trespass and tortious interference. Importantly, in facing a tortious interference claim, tenants are exposed not only to damages traditionally recognized under landlord-tenant law — that is, rent or lost profits and property damage — but also to heightened emotional distress or exemplary damages.
Relying on an observation made in an amicus brief by the Texas Housing Justice League, the concurrence noted that most residential tenants, unlike commercial tenants, will not have access to counsel for advice.
I write separately to emphasize that in a claim for tortious interference, which may seek more than actual damages, the landlord must satisfy a greater burden of proof: it must prove the tenant at sufferance specifically intended to interfere with the landlord’s relationship or contract with the prospective lessee. If a valid court order obtained in good faith grants a tenant at sufferance the right to possess property, the order will generally demonstrate the tenant’s lack of the heightened intent necessary to support a claim for more than actual damages.
This concurrence garnered three votes. Although the six Justices in the majority “do no not necessarily disagree with [the concurrence's] thoughts,” they did not reach that issue because it was not raised by the parties here. So, although the concurrence makes a strong prediction about the future direction of Texas law, it is not (just yet) controlling law.
In holdings that might matter to those litigating other issues:
The Court held that the landlord here was not a “consumer” under the DTPA because it benefitted only indirectly from the laundry services here (which went to the landlord’s other tenants, not to the landlord itself).
The Court held that the UDJA was not available to support an award of attorneys fees for what was essentially a dispute about possession of property, akin to a suit over title.
Sovereign immunity arguments can expand during the appeal
The court of appeals had refused to consider certain sovereign immunity arguments, reasoning that they had not been presented to the trial court. Applying its 2012 decision in RUSK STATE HOSPITAL v. DENNIS BLACK AND PAM BLACK, INDIVIDUALLY AND AS REPRESENTATIVES OF THE ESTATE OF TRAVIS BONHAM BLACK, DECEASED, No. 10-0548
, the Texas Supreme Court reversed and remanded for the court of appeals to address those arguments.
Within that discussion, the Court held that a whiteboard that fell on a patient did not fit into the “use” exception within the Tort Claims Act. On remand, the court of appeals can determine whether the injury here resulted from a “condition” of property or a premises liability theory.
Exhaustion of remedies required to enforce (old) settlement agreement
The Court was asked to determine whether the version of Texas’s workers compensation law in effect in 1988 required this firefighter to exhaust administrative remedies before he could sue to enforce a previous settlement (about which the City had changed its mind and stopped paying).
The Court held that the former statute required exhaustion of administrative remedies and, thus, that the courts did not (yet) have power to hear the claim.
Tags: Order Lists
November 15th, 2013 · Comments Off
Today’s orders list did not bring any opinions.
The Court did announce an argument date for FRANKIE SIMS, ET AL. v. CARRINGTON MORTGAGE SERVICES, L.L.C., No. 13-0638
, the certified question involving home-equity loans in Texas. That case will be argued December 4, 2013.
I wrote a little about the issues in Sims when the Fifth Circuit forwarded the case in August.
Monday was Veterans Day, and it was also the day of the formal investiture of Chief Justice Nathan Hecht and new Justice Jeff Brown. The oath of office was administered by Justice Scalia. (Some photos are available on the Court’s website at this link.)
The Court has a private conference set for Monday and Tuesday. That makes it more likely that we would see grants of review in next week’s orders.
How can respondents obtain dismissal of a petition for review?
You might have noticed that my version of the orders lists specifies when a petition has been disposed after full briefing was requested, which is something I try to pay attention to. There were two of those this week, even though it was not a conference week. So, as is my habit, I looked into them a little deeper.
It turns out that both were cases in which a respondent, not the petitioner, had moved to dismiss. Both cases had the same respondent, who during the time allotted for its merits brief, chose instead to non-suit the underlying lawsuit (in which it was the plaintiff) and argue that the appeal was moot. The Court granted the motions to dismiss.
That kind of unilateral walk-away settlement seems like a really nice option for a respondent to have. Looking through the rules for Supreme Court practice, I’m not sure the best way for a respondent to obtain that sort of dismissal against the petitioner’s wishes. A suggestion of mootness could trigger Rule 56.2, which authorizes the Court to grant a moot petition and then dismiss. Rule 56.1 authorizes two notations for petitions that have not been granted: “denied” and “dismissed w.o.j.”, neither of which the Court used here. (From what I can tell, the Court has not actually marked a petition “dismissed w.o.j.” since 2002. It might be time to dust off my draft blog post about our increasingly vestigial petition-history system…)
Tags: Order Lists
November 8th, 2013 · Comments Off
This week’s orders list was a quiet one, with no opinion and no grants.
This past week, the Court heard oral arguments, including a session yesterday at Texas A&M University. Coverage: The Eagle· The Battalion
The next internal conference to discuss pending petitions is scheduled for November 18 and 19.
Tags: Order Lists
November 1st, 2013 · Comments Off
With today’s orders list, the Texas Supreme Court did not grant any cases for argument or issue any merits decisions.
It did issue one interesting opinion, however, granting an abatement in a mandamus action. That opinion resolves a split among the courts of appeals about how to proceed after a trial judge has recused himself or herself.
If a trial judge whose order is being challenged is later recused, the court of appeals should either abate or deny relief
One of the ways that mandamus practice differs from most appellate practice is that the procedure is personal to the officeholder (judge or official) whose decision is being challenged.
With the use of mandamus to challenge fairly common pretrial orders, there is a mismatch between error and remedy — the “writ” of mandamus is the state compelling behavior by one of its officeholders.
As an artifact of this system, the Texas rules provide that a former trial judge cannot be mandamused. Conventional appeals involving that judge continue; they are not personal to the judge. But the mandamus action must be abated until a new judge holding that office is first given a chance to revisit the issue. Tex. R. App. P. 7.2 (discussing what happens “if that person ceases to hold office before the … original proceeding is finally disposed”).
The courts of appeals were split three ways on what to do if a judge had merely recused themselves, and not ceased to hold office: Some held that the mandamus must continue because Rule 7.2 was not triggered. Some held that the mandamus must be dismissed outright. And some held that the court of appeals should abate, much as it would if the judge had ceased to hold office.
Rather than parsing the language of the rule, the Supreme Court looks to the appellate courts’ more general discretion not to grant mandamus relief. It holds that an appellate court faced with this situation should either abate or, depending on the circumstances, dismiss the mandamus petition. It is up to the appellate court “to determine which of the approaches affords a better and more efficient manner of resolving the dispute.”
The underlying facts here involve an order transferring children from foster parents to a biological father that had been deported to Mexico, bringing to mind the situation in IN THE INTEREST OF E.N.C., J.A.C., S.A.L., N.A.G. AND C.G.L., No. 11-0713
. Apparently to put a firm deadline on resolving the issue, the Court abated the mandamus proceeding and directed the new trial judge to report back no later than December 20, 2013.
Tags: Order Lists
October 25th, 2013 · 3 Comments
With this week’s orders list, the Texas Supreme Court issued one per curiam opinion. It did not choose any new cases for oral argument.
The Court also reset BOB GREENE, AS NEXT FRIEND OF LAWAYNE GREENE v. FARMERS INSURANCE EXCHANGE, No. 12-0867
from its December sitting. That argument will now be heard on January 7, 2014.
Although time records are not always required, at least some documents must support the calculation of attorneys fees
The Court revisited the issue raised in EL APPLE I, LTD. v. MYRIAM OLIVAS, No. 10-0490
about what evidence is needed to prove up attorney’s fees under some fee-shifting statutes.
Here, one of the attorneys contended that he had worked for 226 weeks on the case, with a “conservative” estimate of 6 hours per week. Based on those estimates, he calculated a fee of $339,000.
The Texas Supreme Court holds that is not sufficient evidence. In doing so, it made a nice clarification of El Apple:
Contrary to the City’s argument,
El Apple does not hold that a lodestar fee can only be established through time records or billing statements. We said instead that an attorney could testify to the details of his work, but that “in all but the simplest cases, the attorney would probably have to refer to some type of record or documentation to provide this information.” For this reason, we encouraged attorneys using the lodestar method … to keep contemporaneous records of their time as they would for their own client.
Lodestar fees do not require strict time records, although time records are one obvious way to clear the evidentiary hurdle.
Here, the Court found that making a trial calculation of ’226 weeks × 6 hours’ was not enough. The Court noted that some weeks were surely more, and some were surely less. Because the record did not further explain that ’6 hour’ figure, it could not satisfy the standard. The Court also noted its “puzzlement” that the attorney made no records of time, prepared no bills, and “does not appear to have known how much he was owed … until the calculations at trial.”
The Court reversed this portion of the attorneys fee award and remanded.
Tags: Order Lists
October 18th, 2013 · Comments Off
This week’s orders list brought three grants for oral argument and one petition salvaged from the denial pile on rehearing.
Can fire insurance be denied for technical breaches (that don’t affect causation)?
Under Texas Insurance Code §862.054, a policyholder’s breach of a condition or warranty is no defense to coverage under a fire insurance policy unless it “contributed to cause the destruction of the property.”
This case involves a property that was left vacant by the owner. The petition argues that, because there is no proof that vacancy contributed to the fire, coverage should not have been denied on that basis. Among other arguments, the respondents contend that the better reading of §862.054 is that it applies only to coverage for “personal property,” not for the structure itself.
Set for argument December 5th
Damages to market value caused by “temporary” environmental contamination
The petition challenges a damage award for lost market value of property, arguing that the landowner failed to show a “permanent” reduction in market value.
In one issue, the petition also argues that TCEQ regulations displace their common-law duties.
Set for argument December 5th
Objections to a charge made after the charge conference; Jones Act liability
The substantive issue is about how to draw the line between “specific orders” and “general orders” for purposes of maritime liability under the Jones Act.
A procedural issue raised is whether a proposed jury instruction tendered before the charge is read to the jury is timely under Rule 272 (“…before the charge is read to the jury”), even if it occurs after a different deadline set by the trial court (such as a charge conference).
Set for argument December 5th
The Court granted rehearing for TEXAS DEPARTMENT OF AGING AND DISABILITY SERVICES A/K/A BRENHAM STATE SCHOOL, ANTHONY V. WATSON, DWANE B. HUBBARD... v. MARY CANNON, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF PATRICK TATE DYESS, DECEASED, No. 12-0830
, a petition about §101.106(e) immunity, which the Court had denied at the petition stage in April. The case will now receive full briefing on the merits.
Puzzler of the week
What is the procedure when the Texas Supreme Court is, itself, reversed?
The Court also sent VERNON F. MINTON v. JERRY W. GUNN, INDIVIDUALLY, WILLIAMS SQUIRE & WREN..., No. 10-0141
back to the lower court after it was reversed by the U.S. Supreme Court. The mechanism that the Texas Supreme Court used was inelegant: it withdrew the original grant of review (from February 2011, before its decision or the U.S. Supreme Court appeal) as having been “improvidently granted” and dismissed the petition.
That accomplishes the goal of passing the case back to the court of appeals, which can then issue its own mandate.
But withdrawing the grant as “improvident” after so much has happened seems a little like Season 9 of Dallas (“Good morning!”).
That said, I don’t know that the Court had a more elegant option under the Texas rules. Suggestions are welcome.
Tags: Order Lists