With this week’s orders list, the Texas Supreme Court issued one new opinion, revised one of its opinions from June, and chose six new cases for argument this fall.

The court of appeals can look beyond a recital in the judgment when evaluating a restricted appeal

A party who does not participate in the trial court hearing that leads to the judgment being challenged can file a notice of restricted appeal for up to six months after judgment, as compared to the normal 30-day notice of appeal deadline. The wrinkle here is that the judgment recited that the party had appeared at the key hearing — while other aspects of the trial court record indicated that she had not.

The underlying dispute involves child custody. About two years after a divorce, the father moved to modify the court's custody order to appoint him sole managing conservator. A hearing was set for September 2011, and while the father appeared by telephone, the mother did not. The trial court did not enter an order until November 2011. That order, in turn, began with recitals stating that the hearing occurred in November 2011 and that the mother appeared.

The Supreme Court held that the court of appeals was not bound by the recital on the face of the judgment and, instead, should have considered the other indications in the record that — here, at least — conclusively established that the relevant hearing was the one that took place in September 2011.

The Court emphasized that this record was truly overwhelming:

Importantly, nothing in the record indicates the hearing took place in November 2011. And at least eight references in the record, including portions of the trial court’s docket sheet and the reporter’s record, conclusively confirm the hearing occurred in September 2011 and the petitioner did not participate.

When the record is less conclusive, a party may have a much more difficult time trying to challenge an incorrect recital in a judgment that threatens to deprive the appellate courts of jurisdiction.

Slight revision to the Ford v. Castillo opinion

The Court revised its opinion in Ford Motor Company v. Ezequiel Castillo, Individually, Maria De Los Angeles Castillo..., No. 13-0158 , the fraud case growing out of a note sent by a juror asking about the amount of damages, inducing a quick settlement. (See previous post.)

The new opinion addresses at least two issues noted in the rehearing motion. First, it rejected the argument that Ford’s reliance on the note was unreasonable because juries can send notes about damages without having yet resolved the merits. The original opinion had not addressed this argument. On rehearing, the Court explained that, given the context here and the text of the note itself, the evidence was legally sufficient on this element.

Second, the Court remanded on the issue of factual sufficiency. The court of appeals had not reached that issue, and the court’s original opinion did not address it. On rehearing, the petition urged that the Court remand to the court of appeals so that it could consider the factual sufficiency challenge.

To accomplish that, the Court granted rehearing, issued this new opinion replacing its previous one, and remanded to the court of appeals.


This orders list includes six grants and twenty denials of review for petitions that had been fully briefed on the merits.

These are the six grants:

Expert testimony about causation

This petition challenges a jury verdict that certain chemicals caused a fire within a facility storing many other chemicals, on the basis that (1) the expert's opinions were not supported by a sufficient foundation and (2) the evidence was legally insufficient.

Among the issues identified in the petition:

  • that it "credits expert testimony that damages are 'consistent with' a particular
    causation theory rather than requiring probative evidence of causation"

  • that it includes "proof of causation by process of elimination"

  • that they expert testimony was admitted without "requiring each part of the causation theory to be supported by testing or other scientifically reliable evidence"

  • that it "[d]isregards undisputed test results conducted by a defendant’s experts that
    disprove a plaintiff’s theory"


Set to be argued on January 13, 2015
Whether a misrepresentation in a babysitting flyer is a "substantial cause" of an eventual sexual abuse

The family of a child who was abused by a babysitter brought this claim against the babysitter's mother, who had made a misleading flyer about his trustworthiness as a babysitter, and the church that distributed that flyer. The allegation is that he was "troubled" with known psychiatric issues and that on the second babysitting session, he sexually abused two young boys. The jury found the defendants liable.

The court of appeals reversed and rendered, concluding that the evidence of causation presented here was legally insufficient based on Doe v. Boys Club of Dallas, also a sexual abuse case. In Boys Club, the Court held that the chain of causation had been essentially broken by other links between the abuser and the victim's family, such that the original lies were no longer a "substantial factor" causing the injury.

The petition asks the Court to hold that Boys Club was not meant to be a blanket protection for those whose misrepresentations might be linked to sexual abuse. The respondents argue that the sexual abuse was not the "natural and probable" result of the misrepresentation because the conduct was so extraordinary that it broke the chain of causation.

When does post-judgment interest start to accrue?


Set to be argued on January 13, 2015

In a quite long-running case, the dispute here is how to determine the start date for post-judgment interest when the original judgment goes up on appeal and is partially changed on remand.

The petition contends that the interest should be computed beginning in 2012. It argues that the original 1998 judgment was not itself final — that it was an interlocutory order not itself appealed to the court of appeals. It also argues that the substantive nature of the remand (involving the introduction of new evidence, some by the plaintiff) warranted treating the 2012 award as the starting point for computing interest.