It was a quiet order list from the Texas Supreme Court this week, with just a handful of petition denials. No new cases were set for argument, and no other extraordinary orders were issued.
If you’re curious, the most recent weekly order list without at least one new opinion was handed down on March 14th. In the four order lists between then and now, the Court decided 39 cases with opinions.
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Fifty-state rankings are a creative way to lobby for change. Nobody wants to be last in any list, no matter how calculated.
The “Institute for Legal Reform” at the United States Chamber of Commerce has published its 2008 list, complete with state-by-state press releases, detailed voting information, and video clips about their policy proposals.
It’s a little hard to believe Texas ranks only 41st in this list about best legal environment for business, or that it ranked 44th last year. Oh, well. I’m sure there is an equal-but-opposite list compiled somewhere about the fairness of the legal system in which Texas has just fallen from 6th to 9th.
The Texas-specific press release suggests there are a few “crackpot jurisdictions” within the state and then says:
“The best thing a state can do to attract business is to have a fair legal system,” said Donohue. “Attitudes about Texas’ legal climate will only improve once the courts in these individual jurisdictions begin complying with the spirit and letter of the law.”
Does the real-world data confirm this is “the best thing a state can do to attract business”?
Texas recently moved into the top spot in number of Fortune 500 corporate headquarters, above New York and California.
That’s Texas (ranked 41st today), ahead of New York (ranked 25th — albeit in the top half of the class) and California (ranked 44th). I recognize that locating a corporate headquarters is different than locating a facility the company expects to be a lawsuit magnet. But if I’m choosing which facilities I want my state to attract, that’s a pretty easy call.
First local reports: San Antonio Business Journal :: Southeast Texas Record
Without the hyphens, that headline would be mush.
And, in some sense, that’s the problem. The Institute for Creation Research wants Texas to recognize the online masters degrees that it offers to teachers as giving those teachers a special qualification in “science education.” The dispute is over whether their degree program fits within the state’s requirements. 1
ICR says the dispute is about religious beliefs. The state will likely say that its designations are about preparing public-school teachers to teach the curriculum, not about their personal beliefs.
An appeal is already being discussed. From the Texas Observer:
Morris said if the Board votes to uphold the Commissioner’s recommendation, the Institute will appeal the decision in the next 45 days. If the appeal is denied, Morris said, the Institute may take its case to the Texas Supreme Court. “We were denied the right to operate in California and we went through a lengthy and onerous court case before we won,” he said. “It’s an option that we will consider in Texas if we are denied.”
If you’re curious, here is what ICR’s website has to say about its lawsuit against California.
Coverage: Houston Chronicle :: Texas Observer :: Dallas Morning News
On March 4th, State Rep. Nathan Macias lost his reelection bid in the primary. Shortly thereafter, he filed suit charging that more than 200 votes cast ballots in both the Republican and Democratic primaries and that approximately 1000 voted twice in the Republican primary.
A visiting judge (James Clawson) was assigned for the trial, set to begin May 19th.
From “Trial Date Set for Election Challenge” in the Herald-Zeitung:
Last week, Macias’ attorney Rene Diaz filed an objection to having Clawson hear the case, seeking to have a new judge take over the proceedings. But Clawson, who has ruled on numerous election contests in the past, disregarded the objection.
“I frankly kind of enjoy (election contests),” Clawson told the court. “They’re America at work.”
Diaz gave no reasoning as to why he wanted a different judge, other than that it is a “right that every civil litigant has in the State of Texas.” He presented Clawson with a handful of other cases from around the state to try and sway him to step down, ultimately to no avail.
It sounds like Macias is considering challenging that decision “in a higher court, possibly the Texas Supreme Court” (but see the word of warning in this earlier post):
Macias and his legal team still can challenge the ruling in a higher court, possibly the Texas Supreme Court, to seek a different judge. Diaz said any decision to do so would likely be made in the next few days.
“We’re considering our options,” Diaz said.
Apparently the buyout firms have rejected the banks’ offer of binding arbitration. The article says, quoting the banks, that they “remain willing to fund the Clear Channel acquisition.”
The banks’ mandamus petition and request for emergency stay also remain pending as In re Citigroup Global Markets, Inc., No. 08-0289 in the Texas Supreme Court.
The papers opposing that mandamus were due to be filed today, so there may be some action in the case on tomorrow’s order list.
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[Update: As noted on the Texas Appellate Law blog, the Third Court issued two orders on Friday, which together cancelled this argument and denied the emergency stay.]
As speculated here and elsewhere earlier, a petition for writ of mandamus was filed yesterday challenging the trial court’s handling of the initial hearing, and the Austin Court immediately scheduled the pending motion for temporary relief for oral argument next Wednesday at 2:00PM. The docket sheet is here. The Court’s order setting the expedited briefing and argument schedule is here.1
The newspaper quotes counsel for the relators (Robert Doggett of Texas RioGrande Legal Aid) as saying:
“Obviously, we’re disappointed with the court of appeals failure to act timely,” said Doggett, an attorney representing 48 mothers in the case. He said “having a hearing after the fact” was pointless.
While I’m sure he would have liked immediate relief, I would bet he’s pretty happy to get this response. Having an oral-argument scheduled so quickly is extraordinary.
Other coverage: Texas Appellate Law Blog :: Texas Rural Legal Aid Press Release
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Imagine a Fifth Circuit courtroom…
Judge: What do you do about Morgan?
Phipps: I don’t, I don’t, I don’t know Morgan, Your Honor.
Judge: You don’t know Morgan?
Phipps: Nope.
Judge: You haven’t read it?
Phipps: I try not to read that many cases, your Honor. Ricks is the only one I read. Oh, Ledbetter, I read Ledbetter, and I read that one that they brought up last night. I don’t know if that’s not Ledbetter, I can’t remember the name of it. Ricks is the one that I go by; it’s my North star. Either it applies or it doesn’t apply. I don’t think it applies.
Judge: I must say, Morgan is a case that is directly relevant to this case. And for you representing the Plaintiff to get up here—it’s a Supreme Court case—and say you haven’t read it. Where did they teach you that?
Phipps: They didn’t teach me much, Your Honor.
What happens after such an exchange? You get a per curiam opinion like this one (see page 14) and an order requiring you to give a copy of it to your client.
Thanks to Above the Law, which in turn credited this post on Legal Profession Blog.
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It was apparently the biggest show in town: “Even with a two-story gallery in the courtroom, many students were turned away as the line stretched from the door, past the guards, through the metal detector and out into the new building.” That detail, and others, are in this article on Lubbock Online (by the Lubbock Avalanche-Journal). The article discusses Phillips v. Bramlett, a medical-malpractice case that originated in Lubbock.
Other Coverage: Daily Toreador :: KCBD (NBC affiliate, but no video)
Video feeds: Kerlin v. Sauceda :: Phillips v. Bramlett
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This week, the Supreme Court of Texas is traveling to hear oral arguments at Texas Tech in Lubbock.
Tuesday April 22, 2008:
Kerlin v. Sauceda, No. 05-0653, from the Thirteenth Court
This case is a dispute over the ownership of part of Padre Island. As I wrote about before, the appeal largely concerns whether the dispute is too late. COA Opinion
Phillips v. Bramlett, 07-0522, from the Seventh Court. This medical-malpractice case involves issues about how to properly preserve a challenge to a jury argument, as well as how the medical-malpractice cap affects claims brought under the Stowers doctrine. My summary of the grant is here.
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It’s apparently not too early to talk about an appeal. And, given the stakes involved for both sides of the litigation in this sort of preliminary ruling, I would expect one to come soon:1
Parents have two opportunities for appeal, [Scott] McCown said. They can appeal the judge’s procedures or her ruling, he said.
It’s likely some attorneys will appeal Walther’s decision to allow the state to present its evidence en masse rather than child-by-child. However, the law sets a high bar for appeals; attorneys would have to show the judge abused her discretion, [Guy] Choate said.
The appellate court for the 51st District is the Third District Court of Appeals in Austin.
Source: Salt Lake Tribune
Echoing an argument made earlier this year challenging Wendy Davis’s eligibility to be on the ballot, a federal district court in Waco has ruled that Rep. Tom Craddick’s democratic opponent is ineligible to be on the ballot. The decision was made by Judge Walter S. Smith, Jr., Chief Judge of the Western District.
In this case, the argument is that Bill Dingus, who serves on the Midland City Council, should have resigned his seat before filing to run for state representative. It’s clear that he ultimately can’t hold both offices; what’s less clear is when he has to resign.
That question came up earlier this year in In re Cerda, No. 02-08-00018-CV, a mandamus action that very briefly (but prematurely) was in the Texas Supreme Court before being decided by the Fort Worth Court of Appeals. In Cerda, the court of appeals ultimately decided that the plaintiffs (a small group of Democratic primary voters) lacked standing to make that challenge, at least to the appearance of that candidate on the Democratic primary ballot. The parties to Cerda did not seek further review in the Texas Supreme Court.
If this new federal case makes its way to the Fifth Circuit, that issue of statutory interpretation may well come back to the Texas Supreme Court as a certified question.
Other articles: Houston Chronicle
Take a picture: It’s a patent-related case not in the Eastern District of Texas.
Earlier this month, a suit was filed in Harris County against Howrey LLP and a former partner of the firm for legal malpractice. The allegation is that “a partner in Howrey’s Houston office, was [the plaintiffs'] lawyer in a variety of patent matters and that he brought a patent to them for potential purchase, demanded an ‘under the radar’ verbal deal for 50 percent of net profits to be derived from the patent and breached his fiduciary duty by ‘misrepresent[ing] the value of the patent.’”
“It’s improper for a lawyer to bring a prospect to a client and then ask for 50 percent,” says Steven M. Smoot, a Houston solo who represents Guardian and GMT in the suit.
Stephen H. Cagle, managing partner of Howrey’s Houston office, denies the allegations against the firm and Dowler. “I think they’re categorically false,” Cagle says.
Relying on the 1999 Texas Supreme Court decision Burrow v. Arce, 997 S.W.2d 227 (Tex. 1999), the plaintiffs seek disgorgement of $5 million in legal fees paid to the firm over a five-year period.
Source: Law.com
Judy Kostura wrote an op-ed titled “Why You Should Always Read the Fine Print” that was published by the Statesman last Thursday.
As part of its argument, the piece summarizes the Court’s 2007 decision in Fortis Benefits v. Cantu, No. 05-0791:2
Vanessa Cantu … was rendered a quadriplegic in a collision and was able to secure a settlement from the insurance company of those responsible for her injuries. Her settlement didn’t compensate her fully for her terrible injury, but it helped. Cantu’s insurer, Fortis, sued her to recover the money it had paid under the policy. The case found its way to the Texas Supreme Court. The court sided with the insurance company and wrote an opinion that eviscerated the 92-year-old “made whole” doctrine in Texas law. Cantu was the first person hurt by this wrong-headed decision, but she won’t be the last. The Fortis v. Cantu case gives insurance companies a free rein to write deceptive and onerous health insurance policies, promising benefits on one page and taking them away in the fine print on another.
The piece argues for a legislative solution that would create a statutory “make whole” doctrine.
A lawsuit is pending in Texas state court about a Greyhound crash somewhere on the route between Montreal and New York City that resulted in five fatalities and a number of other injuries. Although the bus route was not so circuitous as to travel through Texas, Greyhound’s corporate headquarters is located in Texas.
On April 11th, the Texas Supreme Court denied mandamus relief to Greyhound that would have stopped the Texas suit. In re Greyhound Lines, No. 08-0179.
According to the Albany Times Union:
Edward Jazlowiecki, an attorney for 19 of the 28 plaintiffs, said the driver was distracted by a cell phone and a music player, according to his clients.
Jazlowiecki said the plaintiffs originally asked for $50 million in punitive damages and they are pleased the case will remain in Texas where juries typically award bigger settlements than in the Northeast.
“They wasted a lot of our time and money, so we may ask for more now,” Jazlowiecki said.
Candid? Definitely. Valid measure of damages? I’ll keep you posted on that. I bet there’s a big market for a cause of action that gets you money whenever you feel the other side has wasted your time.
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The Supreme Court of Texas’s last arguments of the term are to be held next Wednesday at Texas Tech. The University’s press release says that video of the arguments will be made available later.
The Texas Lawyer’s blog has a few more details on the new courtroom, which is “a 150-seat high-technology courtroom” that the Court will “break in” with its argument sitting that morning and “the ribbon cutting will follow those arguments.” (The donor for the new courtroom is Mark Lanier, whose technological affinities mirror my own.)
By far my favorite fact about the new “Donald M. Hunt Courtroom” was this:
Huffman says the Laniers asked the university to name the courtroom after Hunt, a partner in Lubbock’s Mullin Hoard Brown who is an adjunct professor at the law school and was Mark Lanier’s moot court coach when he was in law school.
As a moot court coach (and former competitor) myself, this warmed my heart a little.1
I don’t think any of my former students have yet won enough in settlements and verdicts to donate $6 million to the law school, but it’s probably too late anyway — I think UT has already named most everything after Joe Jamail.
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The Texas Supreme Court issued six decisions with today’s order list.
Three of today’s six decisions involved the question whether a defendant in a medical-malpractice suit can immediately appeal the trial court’s refusal to award sanctions when the plaintiffs nonsuit a case. The Court ultimately held that, yes, such an order was subject to immediate appeal. Although the plaintiffs can nonsuit a claim, that does not also extinguish a claim for affirmative relief by a defendant — and the Court classified this type of sanctions motion by a defendant as a claim for affirmative relief. Justice Wainwright wrote for a unanimous Court in Villafani v. Trejo, No. 06-0501. The Court issued per curiams applying the holding of Villafani to similar fact patterns in Barrera v. Rico, No. 05-0928, and Regent Care Center of San Antonio II, L.P. v. Hargrave, No. 06-0717.
BIC Pen Corp. v. Carter, No. 05-0835. Justice Medina wrote the unanimous opinion for the Court. (Justice Green was not sitting.)
The Court held that federal consumer-protection law implicitly established both a ceiling and a floor for safety, displacing the role of state tort law in establishing the duty rules applicable to cigarette lighters. The Court thus reversed the court of appeals and rendered judgment on the question whether this was a valid design-defect claim.
The Court did not render, however, on the manufacturing-defect claim. The Court held that, while the federal scheme might preempt claims about the design of a product, it did not thereby exempt defendants from liability from claims that their actual manufacture of the product unsafely deviated from that design. The Court remanded so the court of appeals could consider the manufacturing-defect claim.
And, although it was not yet affirming any damage awards, the Court did also reach the question of what interest rate should apply to the award. While this question has a narrow and somewhat uncertain impact on these parties (and the parties devoted fewer than four combined pages of merits briefing to the issue), the Court’s reasoning should be studied carefully by those with other cases that may turn on the effective date of statutes:
The Texas Constitution provides that once a bill becomes law by being passed by the Legislature and signed by the Governor, it generally does not take effect until ninety days after the adjournment of the session in which it was enacted. TEX. CONST. art. III, § 39; id. art. IV, § 15. However, a bill may take effect immediately upon signing by the Governor when passed by a recorded, two-thirds majority vote. Id. art. III, § 39. The exception applies to bills and subsequent amendments. Caples v. Cole, 102 S.W.2d 173, 176 (Tex. 1937). Thus, in Caples, we wrote “A harmless bill might be passed in its inception by the requisite vote, and then be radically amended and such amendments be put into immediate effect without the vote required by the Constitution. If such were the rule, the vote on the original bill would control as to whether it became a law immediately after its final passage, and not the final vote subsequently taken on the amendments placed thereon by the other branch of the Legislature, and the plain provision of the Constitution requiring that it be adopted by a vote of two-thirds of all the members of each house, in order to declare an emergency, could be evaded.” Id. Subsequent amendments and resolutions must accordingly meet the constitutional requirement of a recorded, two-thirds majority vote to go into effect before ninety days after adjournment. See id.
Here, the Legislature passed House Bill 2415 by a two-thirds majority vote of each house on June 1, 2003. See Act of June 2, 2003, 78th Leg., R.S., ch. 676, § 1, 2003 Tex. Gen. Laws 2096, 2097. The vote was taken by a recorded vote. See id. The next day, the Legislature adopted Senate Resolution 66, which amended House Bill 2415 by changing its cap on the post-judgment interest rate from the yield on United States Treasury Bills to the prime rate as published by the Federal Reserve Bank of New York. See id. While the resolution was adopted without objection, the vote was not recorded, and thus under the Constitution did not qualify for expedited effect but rather took effect on September 1, 2003. Id. Accordingly, we agree with the court of appeals that this interest rate did not apply to the judgment in this case.
(If you skipped that rather imposing block quote, an amendment to a bill was made in the crush of legislation at the end of the legislative session “without objection” rather than through a formal recorded vote. The Court today holds that the amendment does not qualify for the Constitution’s provision governing which statutes can go into effect immediately.)
I have not yet had a chance to really study this, but it’s not yet clear to me if the Court’s holding means (1) that the Senate Resolution (by a non-record vote) undid the provisions about expediting the effective date and thus the whole bill did not take effect until September 1, 2003 or (2) that instead the bill went into effect immediately using its original (and since repudiated) formula about interest rates and then the resolution changing those rates went into effect later.
Either way of understanding Texas’s rule about effective dates could decide bigger stakes in some future case.
In re K.C.B., No. 07-168 (per curiam). As a prerequisite to appeal in a parental-termination case, the Texas Family Code requires a party to file a statement for the points on which they intend to appeal. Here, the party did that — but the statement was left out of the clerk’s record. The Court ultimately holds that the court of appeals should have permitted an amendment of the clerk’s record — even on rehearing — to include that statement and thus to permit the appeal.
You should probably not be tempted in your own civil cases to try to supplement the clerk’s record on rehearing. The Court makes plain in its closing paragraphs that:
Given the constitutional dimensions of the “fundamental liberty interest of natural parents in the care, custody, and management of their child,” Santosky v. Kramer, 455 U.S. 745, 753 (1982), justice is not served when a case like this, ripe for determination on the merits, is decided on “a procedural technicality” that can easily be corrected, Silk [v. Terrill], 898 S.W.2d [764,] 766 [Tex. (1995) (per curiam)].
The Supreme Court of Texas also granted the petitions for review in five new cases, with oral argument dates to be determined at a later time. 1
One grant worthy of note is Badiga v. Lopez, No. 05-0801 (court of appeals opinion), yet another medical-practice case about the new statute requiring early filing of expert reports. In Badiga, the parties argue over whether a trial court’s refusal to dismiss a case for failure to timely file an expert-witness report can be the subject of immediate interlocutory appeal. Sound familiar?
Today’s case presents the Court with an actual sighting of this rare bird, a species that in my view merits extinction, not conservation. Extensions forgive deficient reports, not absent ones. If a report is missed, not just amiss, courts are remiss if they do not dismiss.
This was Justice Willett’s concurrence in last week’s case Lewis v. Funderburk [my discussion of the case is here]. You may have also seen that last phrase featured this past week on the Sophistic Miltonian Serbonian Blog and Tex Parte.
In Lewis, a majority of the Court did not reach that legal question, concluding that the parties had not preserved or presented it. The Court will face the issue more squarely beginning with oral arguments in Badiga this fall. It remains to be seen if five Justices can agree on a similarly Seussian rule.
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This week, the Court has a private conference scheduled for Monday and Tuesday. Any new decisions, denials, or grants should be released with the Court’s regular Friday order list.
The Court’s next oral-argument sitting is scheduled for April 22nd at Texas Tech School of Law.
“New Texas SG” Jim Ho (formerly of Gibson, Dunn & Crutcher in Dallas) is named to take over for Ted Cruz at Texas’s SG.
“The Proposed Appellate Rule Changes and Oral Argument” Some discussion of the new rules governing oral argument in the intermediate courts of appeals.