The Court’s next scheduled conference begins on August 16, 2010.

The Court’s next scheduled conference begins on August 16, 2010.

September

September 14, 2010

• Anglo-Dutch Petroleum International, Inc. and Anglo-Dutch (Tenge) L.L.C. v. Greenberg Peden, P.C. and Gerard J. Swonke, No. 08‑0833 (DDB) (Justice Guzman not sitting)

• Offshore Specialty Fabricators, Inc., et al. v. Wellington Underwriting Agencies, Ltd., et al., No. 08‑0890 (DDB)

• Hyde Park Baptist Church v. Tara Turner and Terry Curtis, Individually and As Next Friends of P.C., a Minor, No. 09‑0191 (DDB)

September 15, 2010

• American Home Assurance Company and Illinois National Insurance Company v. Maryland Casualty Company, No. 09‑0226 (DDB)

• XTO Energy Inc. v. Smith Production Inc., No. 09‑0270 (DDB) (Justice Guzman not sitting)

• Betty Yvon Lesley, et al. v. Veterans Land Board of the State of Texas (VLB), et al., No. 09‑0306 (DDB) (Chief Justice Jefferson not sitting)

September 16, 2010

• In re Joseph Charles Rubiola a/k/a J.C. Rubiola, Gregory Allan Rubiola, Catherine Rubiola, JGL Design-Build, Llc a/k/a JGL Design Build and Michael Cortez, Individually and d/b/a the Heights Design and Construction, No. 09‑0309 (DDB)

• Aaron Glenn Haygood v. Margarita Garza De Escabedo, No. 09‑0377 (DDB)

• Marsh USA Inc. and Marsh & McLennan Companies, Inc. v. Rex Cook, No. 09‑0558 (DDB)

October

October 12, 2010

• Reid Road Municipal Utility District No. 2 v. Speedy Stop Food Stores, Ltd., No. 09‑0396 (DDB) (Justice Guzman not sitting)

• Esperanza Andrade, in Her Official Capacity As Secretary of State for the State of Texas v. NAACP of Austin, Nelson Linder, Sonia Santana and David Van Os, No. 09‑0420 (DDB)

• In re Coy Reece, No. 09‑0520 (DDB)

October 13, 2010

• Jeremy Molinet v. Patrick Kimbrell, M.D. and John Horan, M.D., No. 09‑0544 (DDB)

• James Derwood Iliff v. Jerilyn Trije Iliff, No. 09‑0753 (DDB)

• The City of Houston v. Steve Williams, et al., No. 09‑0770 (DDB)

October 14, 2010

• Jose Carreras, M.D., P.A. v. Carlos Francisco Marroquin, et al., No. 09‑0857 (DDB)

• In re Mark A. Jacobs, M.D., Debra C. Gunn, M.D. and Obstetrical and Gynecological Associates, P.A., No. 09‑0942 (DDB)

• Patrick O. Ojo, on Behalf of Himself and All Others Similarly Situated v. Farmers Group, Inc.; Fire Underwriters Association; Fire Insurance Exchange; Farmers Underwriters Association; Farmers Insurance Exchange, No. 10‑0245 (DDB)

One order of note: The Green Party of Texas’ mandamus petition (In re Deb Shafto, et al., No. 10-0487 (docket and briefs)) was dismissed as moot, after the Democratic Party agreed this week to drop its challenge to the presence of Green Party candidates on the statewide ballot.

Related: “Democrats to stop fighting ballot access for Green Party” (Statesman)

As of 9:00 am, there has been no decision in the Green Party mandamus action. (It has been suggested in the press that today is a practical deadline in the case, the day of ballot certification.)

Today’s opinions

The case with the biggest impact on your appellate practice might be Daredia — the case about the finality of a default judgment (the last one on this list). If you are ever tempted to seek a default judgment against one defendant in a multi-defendant case, you should tread very carefully.

The orders list notes that Justice Lehrmann did not participate in any of today’s opinions or orders.

• Grant Thornton LLP v. Prospect High Income Fund, No. 06‑0975 (docket and briefs). This is a case about fraud and reliance in an accounting context. The Chief Justice wrote for the Court. (Justice Guzman joined Justice Lehrmann in not participating in this decision.)

• In re B.G., C.W., E.W., B.B.W., and J.W., Children, No. 07-0960 (docket and briefs). In parental-termination cases, the statute requires an appellant to file a statement of issues with the trial court within 15 days. Today, the Texas Supreme Court holds that “due process does not allow the lack of the required statement to be the basis for denying the parent an appellate record.” Justice Hecht wrote for the Court.

• Institutional Division of the Texas Department of Criminal Justice and Miguel Martinez v. Arthur Powell, No. 08‑0345 (per curiam) (docket and briefs). This was a §1983 claim brought by a prisoner. The Texas Supreme Court holds that the prisoner failed to state a claim, in part because he did not allege how the retaliation against him for his First Amendment activities rose to a constitutional level.

• The University of Texas at El Paso v. Alfredo Herrera, No. 08‑1049 (docket and briefs). The Court holds that (1) the federal FMLA (Family & Medical Leave Act) did not abrogate Texas’ sovereign immunity and (2) that the University itself had not waived immunity from suit through a sentence in its employee handbook. Justice Willett wrote for the Court.

• Sondra L. Grohman v. Clarence J. Kahlig, II; North Park Lincoln-Mercury, Inc., et al., No. 09-0093 (per curiam) (docket and briefs). From the per curiam: “In this case, Sondra Grohman sued her ex-husband, Clarence Kahlig II, for various torts and breach of a Security Agreement (Agreement) entered pursuant to their divorce settlement when he changed the security, stock in his two corporations, into limited partnership units… We hold Kahlig did not breach the Agreement as a matter of law, and Grohman presented no evidence to support her tort claims.” (The Chief Justice joined Justice Lehrmann in not participating in this decision.)

• The State of Texas v. K.E.W., No. 09‑0236 (docket and briefs). In this civil-commitment case, the Court concluded that the evidence was indeed sufficient to support commitment. Justice Johnson wrote the opinion of the Court, looking to dictionary definitions of “overt” and “act,” concluding that K.E.W.’s threats could be “overt acts” to support commitment. The concurring Justices looked instead to the First Amendment distinction between true threats and protected speech and would not have treated verbal statements as “overt acts,” although they found other indications of “overt acts” in the record (such as carrying around a list of potential targets).¹ Justice Johnson delivered the opinion of the Court. Justice Green delivered that concurring opinion, in which Justice Willett joined.

• Quixtar, Inc. v. Signature Management Team, LLC, No. 09‑0345 (per curiam) (docket and briefs). In this common-law forum non conveniens case, the Court upholds the trial court’s dismissal. Along the way, it holds that the court of appeals applied too strict a standard: When the forum was chosen by a nonresident plaintiff, the defendant did not need to show that the evidence “strongly” favored dismissal. Rather, questionable calls are left within the trial court’s zone of discretion. (Justice Hecht joined Justice Lehrmann in not participating in this decision.)

• In re Pervez Daredia, No. 09-1014 (per curiam) (docket and briefs). This is a cautionary tale for anyone who has ever sought a default judgment. Here, American Express sued both Daredia and a corporation. The corporation did not answer; American Express sought and obtained a default judgment that said it was “final.” After 30 days elapsed, American Expressed realized its error and asked the trial court to amend the judgment to clarify that its claims against Daredia could proceed. The trial court did so. Today, the Texas Supreme Court holds that “final” means “final” (at least on a judgment written as clearly as this one), so that the claims against Daredia were extinguished in the judgment.

Two New Grants

• Betty Yvon Lesley, et al. v. Veterans Land Board of the State of Texas (VLB), No. 09-0306 (docket and briefs). This germ of this case is a dispute about whether mineral rights were passed with a land transfer. (Chief Justice Jefferson will not be sitting on this case.)

• City of Houston v. Steve Williams, et al., No 09-0770 (docket and briefs). This petition asks the Court to apply §271.152 of the Local Government Code, which includes a limited waiver of sovereign immunity for municipalities. The parties dispute whether the plaintiff’s theories fit within that waiver.

These two cases join the others awaiting an argument date for the fall.

1. The distinction here is an interesting one that probably warrants some more thought. We don’t want the Minority Report pre-crime crew barging into our houses quite yet.

The issues the Court addressed today included: (1) when the constitutional ratio for exemplary damages has to be applied and when it can be exceeded (the cattle-rustling case), (2) when litigation has to be stayed for arbitration of a related issue, and (3) another application of City of Waco v. Kirwan, about the government’s duties as a landowner.

Justice Lehrmann, who was sworn in on Monday, did not participate in these three decisions.

Exemplary damage ratios applied to cattle rustling; corporate liability for exemplary damages

Thomas O. Bennett, Jr. and James B. Bonham Corp. v. Randy Reynolds, No. 08-0074 (docket and briefs)

For this case, I’ll borrow the summary of the Court’s Staff Attorney for Public Information. The background:

The principal issues in this dispute over cattle belonging to one rancher allegedly sold by another are (1) whether $1.25 million in punitive damages violates due process when actual damages were $5,300 and (2) whether agency principles support punitive damages against a corporation for its president’s acts. In this case Reynolds sued Bennett and Bonham Corp. for conversion, alleging Bennett sold Reynolds’ cattle found on the corporation’s land. Bennett’s daughters own the corporation. Bennett, the president but not a shareholder, lives on the corporate property and runs his own cattle on it without charge. The court of appeals affirmed the punitive damages.

The holding:

The Supreme Court HOLDS that (1) punitive damages were justified but that awarded on a combined 235-to-1 ratio to actual damages violated due process and (2) the corporation was liable for exemplary damages because Bennett, as a corporate vice-principal, authorized and approved his own act of converting the cattle, satisfying Civil Practices and Remedies Code section 41.005(c)(1)’s allowance for such damages if the corporation authorized doing and manner of the tort.

The question whether punitives were justified on this record:

¶ Reprehensibility. Bennett’s alleged extra-conversion misdeeds (at least most of them) count properly toward reprehensibility, as they relate back to the underlying theft and sought to extend and exacerbate harm to Reynolds. As a general matter, exemplary damages are not meant to redress wrongdoing that occurs in litigation, but to redress wrongdoing that results in litigation. A reprehensibility analysis can therefore consider, to some extent, surrounding circumstances beyond the underlying tort. Some of Bennett’s furtive actions may go to motive, underscore the parties’ animosity, shed light on provocation, demonstrate deliberateness and culpability and otherwise show heightened reprehensibility. In short, most of Bennett’s non-theft wrongdoing, while perhaps separately redressable via court-ordered sanctions or other legal proceedings, is sufficiently entwined with the theft to enter the exemplary-damages calculus.

Whether the “ratio” for punitive damages has to be applied, given this context:

¶ Ratio analysis. Facts of this case are not meaningfully distinguishable from those in Gullo Motors v. Chapa. Under the first four reprehensibility factors, as interpreted in Gullo Motors, Bennett’s conduct did not cause physical harm, did not endanger the health or safety of others, did not involve repeated actions and did not threaten financial ruin. Only the fifth factor favors exemplary damages, in that Bennett’s conduct was the result of “intentional malice” rather than mere accident. Both ratios were constitutionally excessive.

Whether Bennett’s corporation could also be liable for exemplary damages:

¶ Corporate liability. The corporation cannot be liable for exemplary damages if the vice-principal’s misconduct occurred while he was acting in a personal capacity unrelated to his authority as a corporate vice-principal. But in this case Bennett used corporate authority over corporate employees, on corporate land, to convert cattle using corporate equipment. Ample evidence shows that Bennett was acting in a corporate capacity.

Justice Willett delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Medina, Justice Green, and Justice Guzman joined, and in all but Part II(A)(1) of which Justice Johnson joined.

Justice Johnson delivered a concurring opinion.

Stay of litigation pending a related arbitration

In re Merrill Lynch & Co., Inc. and Merrill Lynch, Pierce, Fenner & Smith Inc., No. 09-0161 (per curiam) (docket and briefs)

The Court framed this case as similar to a previous decision, In re Merrill Lynch Trust Company FSB, 235 S.W.3d 185 (Tex. 2007) (orig. proceeding). That case held that there are “many circumstances in which litigation must be abated to ensure that an issue two parties have agreed to arbitrate is not decided instead in collateral litigation.” Id. at 197.

Here, we apply the same principle to hold that the trial court abused its discretion by refusing to stay the litigation related to one corporation, MetroPCS Communications, Inc. (Communications), until the identical claims of its corporate affiliate, MetroPCS Wireless, Inc. (Wireless), are decided by arbitration or until Wireless is a member of a certified class action.

The Court noted that the two sets of claims were quite interrelated:

Wireless and Communications, jointly referred to in their petition as ‘MetroPCS,’ assert identical claims with virtually identical facts. Their pleadings do not meaningfully distinguish between the two affiliates, which also share counsel.

The difference was that one of them was covered by an arbitration clause and the other was not. But that arbitration clause contained a second layer of complication — it has a carve-out for claims within a class action (mirroring certain NASD rules, we are told). This rule ensures that securities class actions are heard by the courts without permitting duplicative arbitration proceedings.

This is tricky stuff. As I understand the Court’s holding, a stay of this litigation is required until either (a) an arbitration concludes or (b) a class is certified.

It’s easy to understand what happens after an arbitration concludes; it would have the force of a final judgment and might resolve some of these issues or claims.

But what about after a class is merely certified? At that point there would be a pending class action, so the arbitration clause would yield — permitting this Texas lawsuit to go forward. But that would mean two court proceedings, in some sense, racing toward final judgment and creating a different kind of risk of inconsistent judgments.

This seems to be the result of how the NASD designed this arbitration clause. But the courts may be better equipped to navigate that more traditional sort of forum conflict than to try to peer inside the the black box of an arbitration proceeding.

Remand “in light of” City of Waco v. Kirwan

Texas State University-San Marcos v. Sam and Betty Bonnin, No. 09‑0061 (per curiam) (docket and briefs)

The parents of a student who drowned in the San Marcos River sued the university alleging that some of its repairs to a nearby dam had created an “unreasonably dangerous condition.”

In a per curiam opinion, the Texas Supreme Court vacated the court of appeals’ judgment and remanded so that it could reconsider the case in light of the Court’s later clarification of the rule in City of Waco v. Kirwan, 298 S.W.3d 618, 620 (Tex. 2009).

New issue about tolling the time to file medical-expert reports

Just when you thought that the Court had exhausted every possible combination of issues about the 2003 medical-malpractice changes . . .

Today the Court granted review in Jose Carreras, M.D., P.A. v. Carlos Francisco Marroquin, et al., No. 09-0857 (docket and briefs). Here’s how the petition for review frames the issue:

Can a Plaintiff Benefit from the Section 74.051 Tolling Provision if the Plaintiff Fails to Provide the Pre-suit Notice and Authorization Required by Sections 74.051 and 74.052 of the Texas Civil Practice and Remedies Code?

The case will be set for oral argument sometime this fall.

Today’s list was Justice O’Neill’s last on the Court. Her last day as a Justice will be Sunday; Debra Lehrmann has been appointed by Governor Perry to replace her and will be sworn in on Monday morning. Appropriately, today’s only signed majority opinion is by Justice O’Neill.

Can a child under 14 commit the offense of prostitution?

In re B.W., No. 08-1044 (docket and briefs)

I wrote about this case when it was argued in January. The title of my post: “On the docket: Can a child too young to consent to sex have the requisite intent to commit prostitution?”.

By a 6-3 vote, the Texas Supreme Court holds that, no, the statute defining the crime of prostitution cannot be applied to juveniles under 14 years of age.

The split came down to first principles of statutory construction. Writing for the majority, Justice O’Neill looked first to the Legislature’s intent, placing emphasis on the overall design of the statute and avoiding unreasonable results:

It is difficult to reconcile the Legislature’s recognition of the special vulnerability of children, and its passage of laws for their protection, with an intent to find that children under fourteen understand the nature and consequences of their conduct when they agree to commit a sex act for money, or to consider children quasi-criminal offenders guilty of an act that necessarily involves their own sexual exploitation. In the context of these laws, and given the blanket adoption of the Penal Code into the Family Code, it is far more likely that the Legislature intended to punish those who sexually exploit children rather than subject child victims under the age of fourteen to prosecution.

Writing for the dissent, Justice Wainwright placed all emphasis on the text of the statute, explaining that the Legislature chose its policy with its words.

The language of the prostitution statute includes thirteen-year-olds, and the Juvenile Justice Code makes them subject to juvenile delinquency proceedings for committing that offense; and neither the Court nor B.W. point to any language in the Juvenile Justice or Penal Codes that changes the prostitution statute to mean something other than what it says. . . .

The Legislature easily could have created the exception that the Court proclaims today. It expressly excluded “traffic offense[s]” from the definition of delinquent conduct. TEX. FAM. CODE §51.03(a)(1). All it needed to do was add a few words to section 51.03(a)(1) to compel the result the Court desires, but the Legislature did not exclude “prostitution” from the list of offenses constituting delinquent conduct. Alternatively, the Legislature could have limited application of the prostitution statute to persons fourteen and older, rather than any “person.” Tex. Penal Code §43.02(a). Yet, it opted not to do so.

Justice O’Neill was joined by Chief Justice Jefferson, Justice Hecht, Justice Medina, Justice Green, and Justice Guzman.

Justice Wainwright was joined in dissent by Johnson and Justice Willett.

No evidence of causation between a halogen lamp and a (particular) fire

Wal-Mart Stores, Inc. v. Charles T. Merrell, Sr. and Jane Ceverny, No. 09-0224 (per curiam) (docket and briefs)

In a per curiam opinion, the Court concluded that a plaintiffs’ expert witness had not offered legally sufficient evidence that a halogen lamp caused a particular fire that killed two people. The Court noted that Wal-Mart’s expert had testified that the more likely cause was “careless disposal of smoking materials” also found at the scene.

In this case, the experts were dueling at the summary-judgment stage, so the question was whether the plaintiff had enough evidence to proceed to trial. The district court said no, the court of appeals said yes, and today the Texas Supreme Court says no.

Justice Green did not sit on this case.

Accepted for Argument: What showing is required before a plaintiff can secure net-worth discovery from a defendant?

In re Mark A. Jacobs, M.D., Debra C. Gunn, M.D. and Obstetrical and Gynecological Associates, P.A., No. 09-0942 (docket and briefs)

As framed in the mandamus petition (available as a rather portly PDF file here), the issue is what pleading or initial proof is required before a plaintiff can get discovery of a defendant’s net worth.

In most contexts, the only relevance of net worth would be to an eventual punitive damages calculation. The relators’ theory is that — with the greater restrictions placed on punitive damages over the years — the corresponding discovery should also be reined in to prevent abuse.

Small correction to an opinion on rehearing

Leila Regenia Brown Hidalgo v. Alvin Steve Hidalgo, No. 09-0415 (docket and briefs)

As noted in Osler’s email today, the Court’s corrected opinion:

Changes sentence on page 2 to read “This order effectively granted Leila a new trial.” from “The parties appear to agree this order effectively granted Leila a new trial.”

Alvin had filed a motion for rehearing that pointed this issue out to the Court and asked the Court to “issue a new opinion correctly reflecting that Alvin disputes that [this order] granted Leila a new trial.” He might have wanted the Court to leave that question open. Instead, the Court made clear with today’s correction that it was resolved against him.

With Justice O’Neill’s final day approaching on the 20th, this was her penultimate Friday orders list. She wrote one of today’s signed majorities and today’s only dissenting opinion.

Which tort claims related to sexual harassment are preempted by the TCHRA, and which are not?

Waffle House, Inc. v. Cathie Williams, No. 07-0205

The “issue of first impression” identified by the Court is whether a person who has been sexually harassed at work can bring a private tort suit against his or her employer for the same conduct that might also be covered by the statutory scheme in the Texas Commission on Human Right Act (TCHRA).

Both the majority and dissent agreed that there was some preemption, but they disagreed about its breadth.

The majority opinion was written by Justice Willett. The answer to this question was that, no, the TCHRA “is preemptive when the complained-of negligence is entwined with the complained-of harassment.” Thus, “[w]here the gravamen of a plaintiff’s case is sexual discrimination that lies at the heart of the TCHRA, allowing negligence damages for a TCHRA violation would eclipse the Legislature’s prescribed scheme.”

That resulted in a broader preemption than the dissent would have embraced. Justice O’Neill’s dissenting opinion begins:

Sexual harassment is not a tort recognized under the common law, therefore I agree with the Court that such behavior cannot support a claim for negligent supervision. But assaultive behavior surely can, whether or not it has sexual overtones. The Court’s denial of common law protection for a subset of sexual assault that is sexually motivated adds insult to injury. In my view, the [TCHRA] preempts negligent-supervision claims based on harassment, but it does not preempt assault-based claims merely because the perpetrator sexually harassed the victim too.

The disagreement is focused on that “subset” of cases — those with “sexual assault that is sexually motivated” (in the dissent’s phrasing). As the majority notes, even its broader view of preemption would not include assault that doesn’t accompany harassment or claims brought against the harasser individually (instead of agains the employer):

The issue before us, however, is not whether Williams has a viable tort claim against a coworker. The issue is whether a common-law negligence action should lie against her employer for allowing the coworker’s tortious or criminal conduct to occur, or whether, instead, a statutory regime comprehensively addressing employer-employee relations in this context should exclusively govern.

The dissent agreed that “[n]egligence damages cannot arise from conduct constituting sexual harassment.” But the dissent thought the proper cure was an instruction and would have remanded to the court of appeals for a review that excluded the preempted conduct.

The standard Texas homeowners policy does not cover damage that mold from a water leak causes to the dwelling (but it does cover incidental damage to personal property)

State Farm Lloyds and Erin Strachan v. Wanda M. Page, No. 08-0799

This was Justice O’Neill’s other opinion on today’s orders list, for a unanimous Court. The case (“once again”) asked the Court to settle an question of interpretation about the Texas Standard Homeowners Policy, Form B.

The question: “whether it affords coverage for mold contamination resulting from plumbing leaks.”

The answer: “the policy covers mold damage to personal property but not to the dwelling.”

A “purely defensive request” for attorney’s fees does not waive the State’s sovereign immunity under Reata

Texas Department of Criminal Justice v. Kirk Wayne McBride, Sr., No. 08-0832

The procedural background of this case is complex, but ultimately did not bear on the outcome. (It involves an inmate suing TDCJ after failing to get relief in an internal grievance procedure.)

The question answered was much broader: When a government agency is a defendant in a lawsuit, does it waive sovereign immunity against any claims brought against by asking for attorney’s fees? The Thirteenth Court of appeals held in this case that it did, relying on the principles of Reata Construction Co. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006).

(Disclosure: I represented the State as an amicus in the Reata case and some related cases. But I did not work on the McBride case.)

The Texas Supreme Court, speaking through a unanimous opinion by Chief Justice Jefferson, disagreed.

In this case, McBride, not the department, filed suit. In its answer, the Department denied McBride’s allegations and prayed for attorney’s fees and costs incurred in defending the case. Other than fees and costs, the Department asserted no claims for relief. Unlike Reata, in which the City injected itself into the litigation process and sought damages, the Department’s request for attorney’s fees was purely defensive in nature, unconnected to any claim for monetary relief. When that is the case, a request for attorney’s fees incurred in defending a claim does not waive immunity under Reata, and the court of appeals incorrectly held otherwise.

The Court’s holding is fairly narrow. It plainly applies to the standard “and all attorney’s fees and costs” language that many litigants throw into their standard pleadings — that is not a waiver of immunity. But it leaves open the possibility that the State might waive immunity if it pursues a cause of action for which attorney’s fees is the remedy. The question might come down to whether the request is, in the Court’s words, “purely defensive.”

How to restart a Texas state case after it is remanded from federal court

Maria Del Carmen Gulbot Serros de Gonzalez et al. v. Miguel Angel Gonzalez Gulbot, Carlos A. Gonzalez Gulbot, and Maria Rosa del Arenal de Gonzalez, No. 08-0961

This case was remanded back to the Texas state courts from a federal district court. The remand order was signed and hand-delivered back to the state court.

The defendant argued that this failed to re-establish jurisdiction in Texas state courts because 28 U.S.C. §1447(c) refers to the order being mailed, not hand-delivered. Indeed, they argued that this gotcha ended the case:

Defendants therefore contend that jurisdiction has been destroyed in both courts because the ‘key jurisdictional event’ did not, and can never, occur.

The Court, through an opinion by Justice Willett, rejected this “strange procedural twilight zone.” The Court held that hand-delivery satisfied the rule in this case. (It should be noted that this case did not involve conflicting actions by state and federal courts; here, the federal court executed and delivered its order before the state court took any action.)

The second issue in the case was how to interpret the phrase “tertiary recusal motion” in Texas Civil Practice and Remedies Code §30.016, which permits a judge to continue to hear a case — without referring that recusal motion to someone else to resolve — if a third motion for recusal has been filed.

The court of appeals held that this exception was limited to the third recusal motion a party files against the same judge. Because this was not such a motion, it held that all subsequent actions by the judge in the case were void.

The Texas Supreme Court disagreed, holding that this language properly referred to a third recusal motion filed against any judge. Once you have filed two recusal motions, the third one will not necessarily freeze the case.

(Justice Guzman did not sit on this case.)

Application of State v. Lueck: Whistleblower Act requirements are jurisdictional

The University of Houston v. Stephen Barth, No. 08-1001 (per curiam)

Barth sued the University of Houston under the Texas Whistleblower Act. The court of appeals, reviewing the University’s arguments, refused to consider some of them on waiver grounds.

The Texas Supreme Court reversed in a per curiam opinion, applying its 2009 decision in State v. Lueck, 290 S.W.3d 876, 883 (Tex. 2009), which held that these provisions of the Whistleblower Act were jurisdictional in nature and thus could not be waived.

Remand in light of Lawton‘s clarification of the 60-day period for a carrier to challenge compensability

Zenith Insurance Co. v. Carmen Ayala, No. 09-0292 (per curiam)

In a per curiam opinion), the Court remanded so that the court of appeals could apply its recent decision in Lawton:

In this workers’ compensation case, the court of appeals concluded that the carrier waived its right to dispute the extent of the claimant’s compensable injury by failing to adhere to Texas Labor Code section 409.021(c)’s sixty-day deadline. We recently held that the sixty-day period for challenging compensability does not apply to a dispute over extent of injury. State Office of Risk Mgmt. v. Lawton, 295 S.W.3d 646, 649-50 (Tex. 2009). In light of Lawton, we reverse the court of appeals’ judgment and remand this case to the trial court for further proceedings.

Today’s opinion was in Gilbert Texas Construction, L.P. v. Underwriters at Lloyd’s London, No. 08-0246 (docket and briefs), about whether an insurer is bound to pay for property damage to a third party that its insured (by contract) agreed to assume [under this policy language, it wasn't]. Justice Johnson wrote the opinion for a unanimous Court. (My apologies that I can’t write more today; I’m still attending the appellate conference I mentioned yesterday.)

• Leila Regina Brown Hidalgo v. Alvin Steele Hidalgo, No. 09-0415 (per curiam) (briefs). The Texas Supreme Court gave some relief to a litigant that had chosen a losing appellate strategy. The appellant advanced a procedural argument in the court of appeals that was correct under then-existing precedent. But during the pendency of the appeal, the Texas Supreme Court changed course, announcing the opposite rule in In re Baylor Medical Center at Garland.

  The Court noted its general power under Rule 60.2(f) to remand for further proceedings “in light of changes in the law.” The Court chose today to make sure a remand: “Due to the timing of events, Leila is confronted with a trial court judgment that she believes is substantively defective, but she has not had the opportunity to have those arguments heard on appeal. In light of a change in the law and in the interest of justice, Leila should be allowed to argue to the court of appeals the substantive reasons she believes the trial court’s judgment was erroneous.”

• Texas Health Insurance Risk Pool v. Sharon B. Sigmundik, Benjamin J. Sigmundik and Zachary P. Sigmundik, et al., No. 09-0772 (per curiam) (briefs). The Court held that part of the settlement should have been allocated to the Risk Pool under its contractual subrogation rights. The Texas Supreme Court held that the trial court, which relied on equitable principles to deny subrogation, had confused contractual subrogation with equitable subrogation.

Five new cases chosen for argument

The Court also selected five petitions for next year’s argument calendar. No date or time has been set for argument in these cases:

• Anglo-Dutch Petroleum International, Inc., et al v. Greenberg Peden, P.C. and Gerard J. Swonke, No. 08-0833 (docket and briefs)

• Hyde Park Baptist Church v. Tara Turner and Terry Curtis, No. 09-0191 (docket and briefs))

• American Home Assurance Co. and Illinois National Insurance Co. v. Maryland Casualty Co., No. 09-0226 (docket and briefs))

• In re Coy Reece, No. 09-0520 (docket and briefs))

• Jeremy Molinet v. Patrick Kimbrell, M.D. and John Horan, M.D., No. 09-0544 (docket and briefs))