With Friday’s orders list, the Texas Supreme Court issued six per curiam opinions. The Court granted review in one new case and dismissed another as moot.

Among this week’s petition denials was SUSAN ELAINE BOSTIC, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE HEIRS AND ESTATE OF TIMOTHY SHAWN BOSTIC, DECEASED; HELEN DONNAHOE; AND KYLE ANTHONY BOSTIC v. GEORGIA-PACIFIC CORPORATION, No. 10-0775 , which drew two dissenting votes. Both the Chief Justice and Justice Lehrmann publicly noted their dissent to the denial of review on the orders list.

Shareholder oppression

The Court granted review in a petition about a hot topic, the tort of shareholder oppression in a closely held corporation: LEE C. RITCHIE, ET AL. v. ANN CALDWELL RUPE, AS TRUSTEE FOR THE DALLAS GORDON RUPE, III 1995 FAMILY TRUST, No. 11-0447 . This case comes from the Dallas Court, which has seen its fair share of this litigation. One of the issues presented in this petition is about a proper measure of damages for the tort.

Petition about expert witnesses dismissed as moot

On the motion of the parties, the Court dismissed as moot the mandamus petition in IN RE SPECIALTY RENTAL TOOLS & SUPPLY, LP AND COY FRANK KUYKENDALL, JR., No. 12-0035 , which was about whether attorney-client privilege still protects consulting expert witnesses who acquire “first-hand knowledge” about a case. The case had been set for oral argument next January.

This week’s per curiam opinions

The Craddock test: Even a poor excuse will do

This petition is about what is needed to satisfy the first prong of the Craddock test, for a new trial after a default judgment.

The Court repeats its guidance that “[a]n excuse need not be a good one to suffice.” Here, the defendant “did not recall being served with [the] petition on March 19, 2009, even after reviewing his office notes and speaking to the people with whom he works about that day’s events.” The testimony was that it was his routine to turn over legal papers to his counsel, but that he did not remember this service of process.

The plaintiff here introduced evidence (from the fiancee of the process server) that the papers had, in fact, been handed to the defendant. But the Court noted that this evidence went to the fact of service — it “did not controvert [the defendant]’s testimony that he does not recall being served.” (emphasis added). The Court thus reversed and remanded.

A new trial for damages should also reopen the question of liability

This appeal is on its second trip to the Texas Supreme Court. In the first, the Court remanded back to the court of appeals so that it could consider some issues, including whether to order a new trial. In that part of its opinion, the Court said “a new trial on damages.”

The court of appeals determined that a new trial was needed and so remanded for a new trial limited to damages — not liability. Rancho argues in this second petition for review that Texas Rule of Appellate Procedure 44.1 applies so that, because Rancho disputed liability, the new trial must be for both liability and damages.

The Texas Supreme Court agreed that was the proper result, reversing and ordering that the upcoming new trial also revisit whether Rancho is liable at all.

Whether the government’s conduct after a tax foreclosure can support a takings claim

This was a dispute between a school district and a former property owner (Poole) whose mineral lease had been seized for failure to pay property taxes. (( Disclosure: I wrote an amicus brief on behalf of the TASB Legal Assistance Fund supporting the school district. )) Poole contended that, after the school district became the property’s owner, it prevented him from accessing the property so as to smoothly wind down his operation of the wells and comply with directives of the Texas Railroad Commission.

Based on this conduct, Poole sued the school district, alleging both a takings and a deprivation of due process. The court of appeals ruled against him on the due process claim, but it concluded that he could assert a takings claim.

The Texas Supreme Court reversed and dismissed, concluding that this was not a proper takings claim. The Court characterized Poole’s claims as being “only that the District has injured him, not that it has taken his property without compensation. … Poole’s allegations do not assert a taking for which immunity from suit is waived.”

Can a taxing authority put an end to a tax protest by non-suit?

A landowner was sued over unpaid property taxes for 10 acres. The landowners contended that 1 acre of that land was not theirs — and they tried to pay for just the 9 acres that they conceded they owned. The taxing authority refused.

Ultimately, the landowner paid taxes (under protest) for the full 10 acres and asserted the affirmative defense that they did not own that disputed 1 acre of property. The district then dismissed the suit, arguing that the affirmative defense should die with the underlying suit.

The Texas Supreme Court disagreed. Its holding is that the statute was meant to provide taxpayers with a meaningful way to dispute whether the taxes paid under protest were really owed. In this case, that meant permitting them to continue to dispute whether they should have been taxed on this 1 acre even after the district dismissed its suit.

Intentional torts under the Texas Tort Claims Act

This case under the Texas Tort Claims Act involves the intersection between two quirks of the Texas statute — that that statute bars claims for intentional torts against the State and that any negligence claims for personal injury against the State generally must flow from the use of “tangible personal property.”

Here, the plaintiffs allege that they were sexually assaulted while in a state facility and that, while this assault was taking place, the employees committing the assault used a piece of property (a cart) to block the door.

The Texas Supreme Court held that this fact pattern was really about the intentional tort, not the incidental use of personal property, which “was only used with intent to accomplish the assaults of which the Plaintiffs complain.” For that reason, the Court held that the suit was barred.

An application of Ruttiger

The Court presented this as an application of its recent decision in TEXAS MUTUAL INSURANCE COMPANY v. TIMOTHY J. RUTTIGER, No. 08-0751 , holding that the claims here were barred.

As for the plaintiff’s claim of insurance fraud, the Court concluded that “the dispute … was the extent of [the] injury, not what the policy said or whether it covered [this condition].”