If you rationalize your time watching ESPN as a way to supplement your legal news — and believe me, I’ve been there — you will be most interested to know that today the Texas Supreme Court denied review in Mike Leach v. Texas Tech University, No. 11-0164.
In other news, with today’s orders list the Texas Supreme Court issued an opinion today that could be very important to litigants trying to overturn default judgments, granted review in two others for future oral argument, and also granted rehearing (without yet issuing new opinions) in what had been a deeply divided workers compensation case.
Default judgments: Once a party proves an actual lack of notice, they need not establish their diligence in checking the status of a pending case
In this case, a party that had been subjected to a default judgment brought a “bill of review” to challenge the validity of that prior judgment. Mabon had defaulted by not appearing when noticed. The wrinkle in the case is that Mabon did have an attorney during that prior case, but that attorney had “[u]nbeknownst” to them, been suspended from the practice of law during this time. Once Mabon learned of the default judgment, it hired a new attorney to bring this challenge.
Ultimately, the court of appeals held that Mabon would have to prove that — even if it had lacked notice — it was also diligent in monitoring the case. The court of appeals ordered a remand for Mabon to present evidence. Mabon filed a petition for review, as did Afri-Carib (arguing that the second chance of a remand was inappropriate).
The Texas Supreme Court denied the petitions, but ultimately was persuaded to grant rehearing. This was, as it turns out, the motion for rehearing written in screenplay format.
Today, the Court sided with Mabon, holding that there was no independent requirement to show diligence once a represented party shows an actual lack of notice of the trial setting or default judgment.
The Court granted rehearing in Texas Mutual Insurance Co. v. Ruttiger, No. 08-0751, in which the Court had deeply divided about how the workers-compensation statute preempts other legal duties on how insurers should behave, such as the duty of good faith and fair dealing. The case has now been returned to the Court’s active docket. (The previous opinions have not yet been withdrawn.)
New Grants: Argument dates TBA
FPL Energy, LLC, et al. v. TXU Portfolio Management Co., et al., No. 11-0050. This could be an important case about liquidated damages, both in the energy context and more generally under Article 2 of the UCC.
Felton v. Lovett, No. 11-0252. This was a suit for malpractice against a chiropractor. The petition challenges, in part, whether a chiropractor is a “physician” qualified to opine on causation under the Texas Medical Liability Act.