The Court issued opinions in four cases today, set one other case for argument, and issued a slew of other orders.


  • Graber v. Fuqua, No. 05‑0303.

    In the spirit of recent U.S. Supreme Court cases dealing with the scope of federal preemption of state tort claims, today the Texas Supreme Court stepped into the arena. This case asked whether a state malicious prosecution claim was preempted by the Bankruptcy Act if the conduct in question began with an adversary proceeding related to a pending federal bankruptcy.

    The Texas Supreme Court split 5-4, with the majority holding against preemption. Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice O’Neill, and Justice Johnson joined. The majority reasoned that, in general, state malicious prosecution claims are permitted even if they concern litigation conduct in federal district court. With that starting point, the Court noted Congress’s silence about whether the Bankruptcy Act was meant to have more preemptive effect of such claims. For that reason among others, the Court concluded that Congress did not mean to have a broader preemptive effect here.

    The dissent argued that federal bankruptcy law “occupied the field” such that state law could not regulate how bankruptcy adversary proceedings were conducted. The opinion was delivered by Justice Wainwright, joined by Justice Brister, Justice Medina, and Justice Willett.

  • Badiga v. Lopez, No. 05‑0801.

    This is yet another case about the 2003 medical-malpractice-reform statute designed to streamline such claims (and to prevent many from being filed by front-loading the plaintiff’s costs and reducing possible damages). Today’s decision concerns a lawsuit filed in the very first days of that statute, back in October 2003. And it concerns a decision made by the trial court in the spring of 2004.

    The majority‘s summary is enough:

    The Civil Practice and Remedies Code requires a health care liability claimant to serve expert reports on providers within 120 days after filing suit. If a claimant does not do so, the trial court “must grant” the provider’s motion to dismiss the claim, and the provider may appeal from the court’s failure to do so. If the claimant’s report is timely but deficient, the trial court may grant a single thirty day extension to cure the deficiency, and the order granting that extension may not be appealed. We decide today whether a provider may immediately appeal when a trial court both denies a motion to dismiss and grants the claimant a thirty day extension, even though no expert report was timely served. We conclude that the statute permits such an appeal.

    This was a 7-2 decision. The majority opinion was delivered by Chief Justice Jefferson, joined by Justice Hecht, Justice O’Neill, Justice Wainwright, Justice Green, Justice Johnson, and Justice Willett.

    The dissent was delivered by Justice Brister and joined by Justice Medina. The dissent argued that the Court’s decision today cannot be squared with its decision last year that interlocutory appeal was not permitted if a plaintiff filed a deficient report. The dissent rejected the idea that there was any difference between a “deficient” and a “missing” report, at least for purposes of the statute.

    I suppose the lesson for the tort bar is … File something by the deadline that at least has the form of an expert report.

  • In re International Profit Associates, Inc., No. 08‑0238 (per curiam)

    In a per curiam opinion, the Court granted mandamus relief to enforce a forum-selection clause. Along the way, the Court explained (1) why one party’s delay in seeking this relief in the trial court did not equitably prevent it from seeking mandamus relief; (2) that these claims were within the scope of the clause because, even though they were tort claims not contract claims, they were about the subject matter of the contract; and (3) the record did not show fraud.

  • In re Department of Family & Protective Services, No. 08‑0524

    Again divided 5-4, the Court ultimately dismissed a parental-rights-termination action brought by the Department when the clock on such actions ran out in the district court. The majority concluded that dismissal was mandated by the statute regardless of how the Justices might feel about the merits. The dissenters argued that the Court should be more concerned with the practical consequences of its decision when construing the statute.

    The majority opinion was delivered by Justice Johnson (joined by the Chief Justice and Justices Wainwright, Green, and Willett). It held that dismissal was mandated by Texas Family Code § 263.401. In particular, § 263.401(b) makes dismissal mandatory after one year unless the trial court makes a set of findings that explain why an additional 180 days is warranted.

    The wrinkle here is why the case lingered so long on the trial court’s docket — the trial court actually granted a motion for new trial requested by the mother. The clock expired after that grant of new trial. The majority held that the statute still applied and that dismissal was still mandatory. (The majority explained that the trial court could still have had 180 days in which to conduct a new trial, had it made the required findings.)

    Justice Hecht’s dissent (joined by Justice Brister) argued that the Court should have, first, decided what the practical effect of its decision to dismiss on these procedural grounds would be: “can the Department simply refile the same suit, retain custody of the child, and continue on as before, essentially unaffected?” If so, Justice Hecht reasoned, this whole appeal was a waste of time that delays an ultimate resolution on the merits. And Justice Hecht would have held that the Department could refile in those circumstances, so long as their claim was still supported by evidence. (He also would have held that dismissal was not warranted at all under the statute.)

    Justice Brister’s dissent (joined by Justices Hecht, O’Neill, and Medina) advanced a procedural reason why the mandamus should fail, regardless of whether the case should have been dismissed. It argued that the mother cannot complain on appeal about a new trial that she requested. This is invited error, the opinion reasons, and the Court should have been barred from reviewing it. In addition, Justice Brister’s dissent argued that the Court should have been more concerned about the consequences of its statutory construction rather than just the statute.

The new grant

The new grant is a two-fer. Back on June 20th of last year, the Court denied this petition for review. After that, a seemingly endless stream of amici filed letters or briefs in support. The Court requested full briefing on the merits while the motion for rehearing was still pending.

In today’s order list, the Court both granted rehearing to bring that petition back to life and also set it for the February argument calendar (which still has plenty of room). That’s some turnaround.

  • Dealers Electrical Supply Co. v. Scoggins Construction Co., No. 08-0272 (DB)

Among the other orders:

  • On the eve of the 81st Legislature, the Court denied review in Hendee v. Craddick, No. 08-0452 (DB), which was a challenge to how the previous legislature computed the baseline against which Texas measures the constitutionality of its budget. Dry stuff, but surely something the Legislature is glad not to worry about as it starts the same process again.