With today’s orders list, the Texas Supreme Court ends its 2013 Term. The Court issued 13 decisions overall, including 11 signed opinions.

The past two weeks’ decisions have been remarkably fragmented for this Court. Before last week, there had only been 2 pure concurring opinions issued all term, 4 pure dissents, and 3 concurrence/dissent combinations. In the past two weeks alone, there have been 7 pure concurrences, 9 dissents, and 1 concurrence/dissent combination.

With today’s orders, the Court also lifted the abatement in Larry T. Long, L. Allan Long, and B. Virginia Long... v. Castle Texas Production Limited Partnership, No. 11-0161 , setting it for oral argument in November.

As the term ends, the Court has 12 cases argued but still awaiting a decision.


Because what my readers secretly want on the Friday before Labor Day weekend is a stack of case summaries…

The Court held that, when a trial court grants a motion for new trial, its stated reasons can be substantively challenged through a mandamus action to see whether they fit with the record.

This was today’s only unanimous signed opinion.

In it, the Court reaches a split decision on whether personal jurisdiction applies to these claims. On the trade-secrets claim, the Court concludes that two meetings in Texas are sufficient contacts to confer personal jurisdiction. On the tortious-interference claims, the Court found that the contacts were not sufficient. So the Court partially affirms and partially reverses the decision below.

The Court holds that Texas courts should use a “neutral principles of law” approach to resolve competing claims to church property. “Under the neutral principles methodology, courts decide non-ecclesiastical issues such as property ownership based on the same neutral principles of law applicable to other entities”. Applying that method, a majority of the Court concluded that the record here did not support summary judgment. The national church body had requested summary judgment based on the competing “deference” model of First Amendment law, which the Court declined to adopt. Accordingly, the record that was assembled to support summary judgment showed only that the national church body had recognized a certain local faction as being “true” and “loyal,” not that this faction had a legal entitlement to the property on neutral principles. The Court therefore remanded to the trial court for further proceedings.

The dissent agreed that “neutral principles” should be the approach taken by Texas law but disagreed about the application of that rule to this summary-judgment record.

Applying its decision today in Robert Masterson, Mark Brown, George Butler... v. The Diocese of Northwest Texas, the Rev. Celia Ellery, Don Griffis..., No. 11-0332 , the Court holds that the summary judgment record was not sufficient for either side to prevail. Accordingly, it returns the case to the trial court.

The four-Justice dissent in this case argued that the direct appeal was outside the Texas Supreme Court’s jurisdiction because the trial court’s order did not purport to rule on the constitutionality of a state statute.

The Court rules that an attorney’s affidavit (as an expert in a legal-malpractice case) was too conclusory to support summary judgment because it had a “fatal analytical gap.” Here, the question is whether the law firm should have obtained a settlement amount higher than they did. The Court found that the analysis in the affidavit — which did not compare these settlements to specific other settlements, by comparable injuries and circumstances — was inadequate to raise a fact issue that might defeat summary judgment.

Law school professors take note: This is a real, live statute of frauds case. Here, the question involved the bar on oral agreements that are a suretyship: “an oral promise ‘by one person to
answer for the debt, default, or miscarriage of another person’ is generally unenforceable.” Tex. Bus. & Com. Code §26.01(a), (b)(2). The claim here involved “an oral promise to an attorney to pay the attorney’s fees incurred by one of Dynegy’s former officers.” The Court held that agreement barred by the statute of frauds.

The Court examined the common-law “unlawful acts doctrine” — under which a plaintiff cannot recover for injuries if they were engaged in some unlawful act. The Court holds that common-law defense must yield to the Legislature’s adoption of a comprehensive scheme for proportionate responsibility in Chapter 33 of the Civil Practice and Remedies Code. Under that law, any misconduct like this must “be apportioned rather than barring recovery completely.” The Court thus agreed that the summary judgment was improper and returned the case for trial.

The three-Justice dissent argued that the unlawful-acts doctrine is not about apportioning responsibility but has more to do with whether a competing legal principle (that an act is illegal) should prevent an enforecable duty from arising: “A court’s refusal to enforce an illegal contract is not to benefit or punish either party but to protect public policy in not allowing the law to further an illegal purpose. The application in tort cases serves the same end.”

The Court holds that a municipality’s moratorium on development (aimed at preventing overtaxing the city’s scarce sewage resources) did not apply to a subdivision that has already been approved.

The dissent argues that the result of the case will be cities more reluctant to approve development projects in advance — “a wonderful irony in a case won by a developer.” The dissent takes issue with the majority’s strict adherence to statutory text rather than looking for a broader purpose.

The Court addresses what happens when a plaintiff sues a government employee but, under §101.106, should have sued the government unit. The holding is that the suit is treated as if it had been filed against the proper defendant (the governmental unit), and that proceedings to dismiss the claim against the wrong defendant (the employee) do not undermine a plaintiff’s right to sue the governmental unit. In short, “while it makes sense to interpret the section as curtailing suits against employees that could be brought instead against the government, it would be illogical for the election-of-remedies provisions to prohibit the very suits the TTCA authorizes.”

The four-Justice dissent argued that the statute requires a plaintiff to actually dismiss the claim against employee, and that failure to strictly comply with that statute requires dismissal of the claim against the governmental unit as well.

The Court holds that the requirement that medical expert reports be served on all “parties” by the 120th day extends to those parties named in the petition as defendants but who have not yet been formally served with process for the lawsuit. The Court further holds that this “service” of a medical expert report does not need to follow the formalities that Rule 106 requires for serving the citation in the underlying lawsuit.

The Court holds that a rule issued by a state agency cannot create a procedure to allow decisions about permanent lifetime workers-compensation benefits to be reopened — “a procedure the Legislature deliberately removed in 1989. The Legislature’s choice is clear, and it is not our province to override that determination.”

The dissent argued that, “Without the implied power to determine continuing eligibility for [lifetime benefits], the Division could not ensure that income benefits are administered in a cost-effective way. It is unlikely that the Legislature would require the workers’
compensation system and its carriers to allocate resources in such a way as to require the payment
of lifetime benefits, often for decades, to workers who do not meet the statutory criteria.”

The Court concludes that a school district employee’s report of problems to various school administrators was not a report to a “law enforcement official” within the scope of the Whistleblower Act.

The Court holds that the provision of the Texas Uniform Fraudulent Transfer Act that claims are “extinguished” after four years is a statute of repose, not a statute of limitations. Therefore, the Court holds that it cannot be extended by the statutory tolling provision (§16.064(a) of the Civil Practice and Remedies Code) that can reopen the statute of limitations if a pending lawsuit is dismissed for want of jurisdiction.