The calendar does not lie. It hinted that the Court might have a flurry of activity before the summer break. And it did, issuing opinions in eight cases with today’s orders list and selecting two new cases to be argued this fall.
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.)
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). (( 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. )) 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.