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. (( Insert your own jokes about “the two happiest day of a boat owner’s life” here. ))

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. (( 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. )) 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