Supreme Court of Texas Blog

Last Friday was interesting for the Texas Supreme Court’s “submarine docket” — the set of cases that the Court resolves without oral argument and without a former prior order “submitting” the case for decision, as might happen in a court without discretionary review.

When a petition lingers, that’s valuable information

Some have complained that they need the Texas Supreme Court to create a formal “submission on written briefs” process so they can tell what issues might be of interest to the Court. But some clues are already there in how the Court handles its petitions. Cases that linger on the docket are likely to get more attention from the Court. And when the Court’s docket starts to accumulate a group of petitions that raise similar issues, it’s a safe bet that some part of the Court is thinking seriously about them.

This week, the Court answered an open question about using mandamus to review the 30-day extension of time on expert reports that trial courts can offer medical-malpractice plaintiffs. The Court resolved that question in In re Roberts (discussed here). This was a “submarine” decision — no formal submission was made, and the case was decided without oral argument after having been pending on the Court’s docket for some time. This one, in fact, was pending for about two and a half years after full briefing was completed. There should have been little doubt that this issued was on the Court’s mind.

And it was not the only petition that raised this question. In Friday’s order list, the Texas Supreme Court also resolved a few other long-pending cases that raised the same question. One of them — like Roberts itself — was among the Court’s very longest-pending fully briefed cases: In re Benavides, No. 05-0784. In Benavides, like Roberts, the defendant sought to use mandamus to review a trial court’s decision to grant a 30-day extension. Consistent with its decision in Roberts, the Court simply denied review in this case. The Court also denied review today in In re Temple, No. 05-0817, and In re Zimmerman, No. 05-0826, two cases out of the Sixth Court raising the same question. Both of those petitions were pending for more than two years after the petition briefing was complete but before any request for full merits briefing. ¹

The odds are better, but they’re not perfect

Friday’s order list resolved six of the Court’s very longest-pending cases — five of which dealt with the same question about medical-malpractice expert witnesses.

But the very longest-pending case did not result in a merits decision at all.

Admiral Insurance Co. v. Westchester Fire Insurance Co, No. 05-0028, a case between two insurance companies raising questions under the Stowers doctrine, was (by my count) the longest pending petition that had not yet been granted, at about 2 years and 10 months since the Respondent’s Brief on the Merits. In Friday’s order list, the Texas Supreme Court denied review without comment, letting the case return for trial consistent with the court of appeals’s judgment.

1. The Court sometimes lets cases linger at that stage so that it can resolve some legal issue in the case through another pending case. That way, if the Court decides it does want to see merits briefing, the parties can write briefs more helpful to the Court that address the Court’s new guidance. Cases lingering at the petition stage can be an interesting indicator of what the Court is thinking about in other cases. ↩

In today’s order list, the Court decided three cases and also dismissed as moot the pending Clear Channel mandamus petition.

Three merits decisions

Two of them are medical-malpractice expert cases citing the Court’s recent In re McAllen Medical Center — to reach opposite conclusions.

• In re Roberts, No. 05-0362.. In this case, the trial court granted the plaintiffs a 30-day grace period to amend their expert reports. The defendants objected and sought mandamus relief — which the court of appeals granted. Today, with this per curiam opinion,¹ the Texas Supreme Court granted mandamus relief against the court of appeals, ruling that “[b]ecause a 30-day extension — even if unjustified — does not substantially prolong litigation or allow for extensive discovery, we hold the court of appeals erred in issuing mandamus relief.”

  In distinguishing In re McAllen Medical Center, the Court noted that it was weighing the possible slight harms from a 30-day extension against the much longer delays that would be involved if it permitted appellate scrutiny of every 30-day extension a trial court might choose to grant under this statute. “[T]he harm involved is a 30-day delay. By contrast, this original proceeding has now delayed the case for four years. … By any measure, the benefits to mandamus review of a 30-day extension are outweighed by the detriments.”

• In re Methodist Healthcare System of San Antonio, Ltd., No. 05-0575. The hospital objected to the plaintiff’s medical-malpractice expert report, and the trial court refused to dismiss. When the hospital sought mandamus from the court of appeals, the court of appeals denied on the ground that the hospital had “an adequate remedy by appeal.” In this per curiam opinion, the Texas Supreme Court granted the writ of mandamus “for the reasons stated in In re McAllen Medical Center.” Rather than reach the merits of the hospital’s arguments, the Court “instruct[ed] the court of appeals to withdraw its previous opinion and reconsider in light of our opinion in McAllen.”

• FKM Partnership, Ltd. v. Board of Regents of the University of Houston, No. 05-0661. Justice Johnson wrote for the Court. He was joined by all of the Justices other than Justice Willett, who wrote a separate opinion concurring in part and dissenting in part.

  I’ll write more about FKM in a separate post.

Putting the Clear Channel case to rest

• In re Citigroup Global Markets, Inc., No. 08-0289. The Court lifted its abatement of the In re Citigroup Global Markets, Inc. case to issue an order of dismissal.

Two new petitions granted

The Court added these two cases to its argument schedule for the fall:

• Hernandez v. Ebrom, No. 07-0240, from the Thirteenth Court of Appeals. This interlocutory appeal challenging an inadequate expert report has a twist — while on appeal, the underlying cause was resolved by an agreed order of nonsuit. The court of appeals held that it had been deprived of subject-matter jurisdiction over the interlocutory appeal.

• Smith v. Patrick W.Y. Tam Trust, No. 07-0970, from the Fifth Court of Appeals. On a commercial lease, the plaintiff sued for $215,000 and received a jury verdict for $65,000. In addition, the trial court awarded attorney’s fees of $47,000.

  The petition argues that this amount was “unconscionable” and unreasonable because it would be seventy percent of the amount of the verdict. The petition suggests that the court of appeals should have expressly evaluated the reasonableness of the award under the framework set out in Arthur Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812 (Tex. 1997).

  It’s a simple argument — and the petition for review doesn’t belabor it, taking up only five pages from the Statement of Facts through the Prayer.

1. Justice Johnson did not participate. ↩

Providence Health Center v. Dowell, No. 05-0386,
consolidated with,
Pettit v. Dowell, No. 05-0788

Decided: May 23, 2008

The Court split 5-1-3 in this tort-causation case.

Dowell visited a health center after having ingested some pills and attempting to slit his wrist. After a brief consultation that included him signing a “no suicide contract” and agreeing to show up the next Tuesday, the health center released him. About 33 hours later, Dowell committed suicide. A jury found that the medical providers’ conduct had been a contributing cause.

Justice Hecht delivered the opinion of the Court, in which Justice Brister, Justice Green, Justice Johnson, and Justice Willett joined. The Court held that there was “no evidence” of causation, in part relying on the 33 hours that elapsed before Dowell’s suicide. The Court thus reversed and rendered a take-nothing judgment. Four Justices disagreed with the Court’s holding. Justice Wainwright concurred in part and dissented in part. He would have held that there was some evidence to support the jury’s verdict, but he would have reversed and remanded for a new trial because of a jury charge error. Justice O’Neill’s dissent (joined by the Chief Justice and Justice Medina) would also have found that this evidence met the no-evidence standard and would have affirmed the court of appeals’s judgment. [Read more →]

Progressive County Mutual Insurance Co. v. Kelley, No. 08-0073

Briefing Requested: May 30, 2008

In a case about automotive insurance, this is not the usual way for the fact section to begin:

“While riding her horse…”

Regan Kelley, while riding her horse, was struck by a motorist and seriously injured. She filed a claim under her own insurance policy’s provision for underinsured motorists. Her insurer paid a single policy limit (which was approximately $500,000).

It turns out, however, the the insurer had issued two separate documents of insurance to the Kelley family — splitting the automobile insurance for the family’s five cars across those two documents. Kelley sued seeking coverage under that second document.

The insurer contends that its issuing two separate documents was merely for its own administrative convenience and that these documents actually embodied only policy. Kelley contends that the policies mean what they say and that, in any event, the insurer’s own internal guidelines recognize that these are distinct policies.

The Waco Court agreed with Kelley, holding that summary judgment should have been granted to Kelley that these were separate policies. The court of appeals also struck down a provision of those policies that might have prohibited “stacking” of this coverage as violating public policy.

The opinion was a memorandum opinion. Chief Justice Gray dissented without a separate opinion.

The Texas Supreme Court has now requested merits briefing in the case.

The Court has requested merits briefing in four cases:

• Progressive County Mut. Ins. Co. v. Kelley, No. 08-0073. This insurance case raises a couple of interesting contract questions and warrants its own post.

• Target Corp. v. MRO Southwest, Inc., No. 08-0105. In this rather tangled construction dispute, the court of appeals rejected Target’s attempt to enforce an indemnity provision and to thereby recover its attorney’s fees.

• In re Weeks Marine, Inc., No. 08-0107. This is another arbitration mandamus, although the underlying case does have the complication of determining whether a party is a “seaman” and thus excluded from the FAA. But… given that the relator is the company and not the employee, it looks like this petition concerns the one issue that the court of appeals left open for the trial court to decide — procedural unconscionability, that is, how the contract was procured, not necessarily its substantive terms.

  In the court of appeals, Weeks Marine contended that this “procedural unconscionability” attack was directed to the signing of the contract as a whole and thus was an issue for the arbitrator; the court of appeals held that the attack was directed at the unconscionability of how the arbitration provision was obtained and thus was an issue for the trial court.

  What’s a little odd is that both may be right — the contract is titled “Claim Arbitration Agreement”.

• Gulf Ins. Co. v. Hennings, No. 08-0202. See this earlier post.

This week begins the long summer stretch on the Court’s calendar. For the next four weeks, that calendar looks precisely like this:

On Monday, the Court is scheduled to hold a private conference. Any cases decided or petitions set for argument should be noted on the Court’s regular Friday order list.

The Court has not yet issued its argument schedule for the fall, but it has already chosen at least 16 cases to be heard.¹

Articles from the Past Week

• Welcome to the Tyler Appeals Blog! There is a new legal blog in East Texas, and if your practice covers that area, it’s definitely worth checking out.

• Order List of 5-30-2008. The Court decided two cases, set two more for argument, and put to rest some long-pending petitions in a couple of medical-malpractice cases.

• A Few Other Reactions to the FLDS Case.

• Court Denies Mandamus in the FLDS Case.

• Court Requests a Response in FLDS Case [Updated 5/29].

• Briefing Requests for 5-27-2008.

• Another Case About Forum-Selection Clauses. The Court issues a stay and requests full briefing on the merits.

1. There is a little uncertainty about whether (and when) argument will be held in the additional case In re Citigroup Global Markets, Inc., No. 08-0289, petition, which is currently abated. ↩

I’ve learned there is a new appellate blog in Texas, this one with a special focus a little to the east. The blog is Tyler Appeals written by Jeff Rambin, and its welcome page says that one “goal is to provide a summary of every case decided by the 12th Court of Appeals. So far, I’ve done that for 2008.” (I sure wish I could say the same about my Court.)

In addition, Jeff has written some in-depth articles about cases of particular interest. For example, a post from about a week ago titled “Constitutional Problem with Family Code § 263.405?” talks about a recent parental-rights termination case involving how a parent can get a free copy of the trial record to use on appeal. To do so, the parent must convince the Court not only of his or her indigence but also that the appellate points are non-frivolous. But to do the latter, the parent must often already have a copy of the record — a situation the court called a “conundrum.”

And there is, as Jeff notes in his posting, already a Texas Supreme Court connection. A similar issue is raised in the pending petitions In re F.C.G., No. 07-0882 (from the Eastland Court) and In re B.G., No. 07-0960 (an earlier decision from the Tyler Court), both of which have drawn enough interest from the Court to receive requests for full briefing on the merits. Those petitions were also mentioned very briefly in this earlier post on my blog.

In today’s order list:

Two Decisions

• Guitar Holding Company, L.P. v. Hudspeth County Underground Water Conservation District No. 1, No. 06-0904. Justice Medina delivered the opinion for a unanimous Court. This is a case about water-permit applications in which the Court held that the district had exceeded its statutory authority.

• In re Zandi, No. 07-0919 (per curiam). Through a per curiam opinion, the Court granted a writ of habeas corpus to release a person held on criminal contempt charges for failure to comply with a child-support order. That order imposed conditions that Zandi would have to meet or face confinement The Court ultimately held that those provisions were not clear enough to meaningfully apprise Zandi of what he would be required to do to comply and thus avoid confinement.

Two New Grants

The Court also granted two new petitions for review. The dates for oral argument have not yet been set.

• Retamco Operating, Inc. v. Republic Drilling Co., No. 07-0599. This is a personal jurisdiction case in which the court of appeals frames the question this way: “Is a single tortious act sufficient to confer specific jurisdiction?”

• Spectrum Healthcare Resources, Inc. v. McDaniel, No. 07-0787. This case is about whether a docket-control agreement between the litigants in a parallel federal court case acted to extend the time to serve medical-expert reports in a Texas state case.

Medical Malpractice Mandamus Update

In addition, the Court dismissed without prejudice two long-pending petitions for mandamus relief in cases challenging medical-expert reports. On the order list, the Court noted that the petitions had failed to comply with Texas Rule of Appellate Procedure 52.3(e), which generally requires that petitions for mandamus relief first be filed in the intermediate court of appeals. The petitions appears to be related: In re McAllen Medical Center, No. 06-0098, and In re Starr County Memorial District, No. 06-0105.

What’s a little odd is the timing. Both of these petitions had been pending since early 2006. In each, the Court requested a response in March 2006, and that response was filed in April 2006. In neither case had the Court yet requested full briefing on the merits.

It’s possible that the Rule 52.3(e) issue was simply overlooked. But given the significant number of other pending medical-malpractice cases on the Court’s submarine docket, the timing of these dismissals may suggest that the Court is actively working on opinions in some of those other cases as well.

It’s easy to find newspaper stories recapping the Court’s relatively brief opinions in the case. Here are some articles with a somewhat different analytical take:

• Volokh Conspiracy: Professor Eugene Volokh tries to put his finger on the disagreement between the majority and dissenting Justices and finds it in the notion of what makes a single “household.”

  Here’s how he sums up his argument:

  So this is why it seems to me that the heart of the partial dissenters’ argument must be that “the Ranch” is different from a normal neighborhood, presumably because it counts as a single “household” (something the dissenters don’t expressly say, but that they seem to point to by reference to behavior “on the Ranch” coupled with the mention of the “household” principle in note 2). And the majority’s disagreement, I expect, probably stems partly from the majority’s accepting the court of appeals’ contrary view that the Ranch consists of many separate households.

  Now I can’t speak with confidence about how dispositive the “single household” vs. “multiple households” distinctions ought to be, or how the lines ought to be drawn in close cases if the distinction is used. But my sense is that this issue — which more broadly relates to the degree of responsibility that can be ascribed to any particular child’s parents for the abusive or neglectful actions of other parents in their community — is what the dispute in this particular stage of litigation is really about.

  (If you’re looking for more analysis of the other issues lurking in the case, here is a collection of all the Volokh Conspiracy posts related to the case.)

• From a publication on the other side of the political spectrum — and by an author on other side of the academic/experience divide — is this piece by a self-described “former member of the FLDS … who was forced to marry at age fourteen” (Elissa Wall). She also just got a movie deal.

• The Wall Street Journal has an article today focusing on CPS’s reaction to the case. You might occasionally get the idea that the dissent had five votes, but that could just be how the reporter selected quotes and paraphrased sources. 

• Dahlia Lithwick’s column, printed in the Dallas Morning News on Wednesday (and therefore only about the court of appeals’s decision), draws a loose parallel between the FLDS cases and the Guantanamo Bay cases — in terms of the best intentions of government actors getting tangled in the procedural requirements of the law.

In re Tex. Dep’t of Family and Protective Servs., No. 08-0391 (orig. proceeding) (per curiam) -and-

In re Tex. Dep’t of Family and Protective Servs., No. 08-0403 (orig. proceeding) (per curiam)

Decided: May 29, 2008

Today, the Court denied the Department’s request for mandamus relief, issuing a per curiam decision. In addition, Justice O’Neill wrote an opinion concurring in part and dissenting in part, which was joined by Justices Johnson and Willett.

The Court did not walk through the nuances of the factual disputes, instead summarizing that “having carefully examined the testimony at the adversary hearing and the other evidence before us, we are not inclined to disturb the court of appeals’ decision. On the record before us, removal of the children was not warranted.”

What the Court did do was emphasize that the district court still has other tools at its disposal to deal on a case-by-case basis with the sorts of concerns raised by the Department:

The Department argues without explanation that the court of appeals’ decision leaves the Department unable to protect the children’s safety, but the Family Code gives the district court broad authority to protect children short of separating them from their parents and placing them in foster care. The court may make and modify temporary orders “for the safety and welfare of the child”, including an order “restraining a party from removing the child beyond a geographical area identified by the court”. The court may also order the removal of an alleged perpetrator from the child’s home and may issue orders to assist the Department in its investigation. The Code prohibits interference with an investigation, and a person who relocates a residence or conceals a child with the intent to interfere with an investigation commits an offense.

While the district court must vacate the current temporary custody orders as directed by the court of appeals, it need not do so without granting other appropriate relief to protect the children, as the mothers involved in this proceeding concede in response to the Department’s motion for emergency relief.

Justice O’Neill’s opinion would have instead split its result. As to the male children and “pre-pubescent” female children, the Justice O’Neill would have agreed with the Court that the evidence was lacking. But as to the “pubescent” female children, Justice O’Neill would have found that the evidence — coupled with the lack of cooperation during initial investigations by CPS — made CPS’s decision about how to proceed a reasonable one under the statute.