The Texas Supreme Court issued opinions in six cases today. The Court did not accept any new cases for review.
With Justice O’Neill’s final day approaching on the 20th, this was her penultimate Friday orders list. She wrote one of today’s signed majorities and today’s only dissenting opinion.
Which tort claims related to sexual harassment are preempted by the TCHRA, and which are not?
Waffle House, Inc. v. Cathie Williams, No. 07-0205
The “issue of first impression” identified by the Court is whether a person who has been sexually harassed at work can bring a private tort suit against his or her employer for the same conduct that might also be covered by the statutory scheme in the Texas Commission on Human Right Act (TCHRA).
Both the majority and dissent agreed that there was some preemption, but they disagreed about its breadth.
The majority opinion was written by Justice Willett. The answer to this question was that, no, the TCHRA “is preemptive when the complained-of negligence is entwined with the complained-of harassment.” Thus, “[w]here the gravamen of a plaintiff’s case is sexual discrimination that lies at the heart of the TCHRA, allowing negligence damages for a TCHRA violation would eclipse the Legislature’s prescribed scheme.”
That resulted in a broader preemption than the dissent would have embraced. Justice O’Neill’s dissenting opinion begins:
Sexual harassment is not a tort recognized under the common law, therefore I agree with the Court that such behavior cannot support a claim for negligent supervision. But assaultive behavior surely can, whether or not it has sexual overtones. The Court’s denial of common law protection for a subset of sexual assault that is sexually motivated adds insult to injury. In my view, the [TCHRA] preempts negligent-supervision claims based on harassment, but it does not preempt assault-based claims merely because the perpetrator sexually harassed the victim too.
The disagreement is focused on that “subset” of cases — those with “sexual assault that is sexually motivated” (in the dissent’s phrasing). As the majority notes, even its broader view of preemption would not include assault that doesn’t accompany harassment or claims brought against the harasser individually (instead of agains the employer):
The issue before us, however, is not whether Williams has a viable tort claim against a coworker. The issue is whether a common-law negligence action should lie against her employer for allowing the coworker’s tortious or criminal conduct to occur, or whether, instead, a statutory regime comprehensively addressing employer-employee relations in this context should exclusively govern.
The dissent agreed that “[n]egligence damages cannot arise from conduct constituting sexual harassment.” But the dissent thought the proper cure was an instruction and would have remanded to the court of appeals for a review that excluded the preempted conduct.
The standard Texas homeowners policy does not cover damage that mold from a water leak causes to the dwelling (but it does cover incidental damage to personal property)
State Farm Lloyds and Erin Strachan v. Wanda M. Page, No. 08-0799
This was Justice O’Neill’s other opinion on today’s orders list, for a unanimous Court. The case (“once again”) asked the Court to settle an question of interpretation about the Texas Standard Homeowners Policy, Form B.
The question: “whether it affords coverage for mold contamination resulting from plumbing leaks.”
The answer: “the policy covers mold damage to personal property but not to the dwelling.”
A “purely defensive request” for attorney’s fees does not waive the State’s sovereign immunity under Reata
Texas Department of Criminal Justice v. Kirk Wayne McBride, Sr., No. 08-0832
The procedural background of this case is complex, but ultimately did not bear on the outcome. (It involves an inmate suing TDCJ after failing to get relief in an internal grievance procedure.)
The question answered was much broader: When a government agency is a defendant in a lawsuit, does it waive sovereign immunity against any claims brought against by asking for attorney’s fees? The Thirteenth Court of appeals held in this case that it did, relying on the principles of Reata Construction Co. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006).
(Disclosure: I represented the State as an amicus in the Reata case and some related cases. But I did not work on the McBride case.)
The Texas Supreme Court, speaking through a unanimous opinion by Chief Justice Jefferson, disagreed.
In this case, McBride, not the department, filed suit. In its answer, the Department denied McBride’s allegations and prayed for attorney’s fees and costs incurred in defending the case. Other than fees and costs, the Department asserted no claims for relief. Unlike Reata, in which the City injected itself into the litigation process and sought damages, the Department’s request for attorney’s fees was purely defensive in nature, unconnected to any claim for monetary relief. When that is the case, a request for attorney’s fees incurred in defending a claim does not waive immunity under Reata, and the court of appeals incorrectly held otherwise.
The Court’s holding is fairly narrow. It plainly applies to the standard “and all attorney’s fees and costs” language that many litigants throw into their standard pleadings — that is not a waiver of immunity. But it leaves open the possibility that the State might waive immunity if it pursues a cause of action for which attorney’s fees is the remedy. The question might come down to whether the request is, in the Court’s words, “purely defensive.”
How to restart a Texas state case after it is remanded from federal court
Maria Del Carmen Gulbot Serros de Gonzalez et al. v. Miguel Angel Gonzalez Gulbot, Carlos A. Gonzalez Gulbot, and Maria Rosa del Arenal de Gonzalez, No. 08-0961
This case was remanded back to the Texas state courts from a federal district court. The remand order was signed and hand-delivered back to the state court.
The defendant argued that this failed to re-establish jurisdiction in Texas state courts because 28 U.S.C. §1447(c) refers to the order being mailed, not hand-delivered. Indeed, they argued that this gotcha ended the case:
Defendants therefore contend that jurisdiction has been destroyed in both courts because the ‘key jurisdictional event’ did not, and can never, occur.
The Court, through an opinion by Justice Willett, rejected this “strange procedural twilight zone.” The Court held that hand-delivery satisfied the rule in this case. (It should be noted that this case did not involve conflicting actions by state and federal courts; here, the federal court executed and delivered its order before the state court took any action.)
The second issue in the case was how to interpret the phrase “tertiary recusal motion” in Texas Civil Practice and Remedies Code §30.016, which permits a judge to continue to hear a case — without referring that recusal motion to someone else to resolve — if a third motion for recusal has been filed.
The court of appeals held that this exception was limited to the third recusal motion a party files against the same judge. Because this was not such a motion, it held that all subsequent actions by the judge in the case were void.
The Texas Supreme Court disagreed, holding that this language properly referred to a third recusal motion filed against any judge. Once you have filed two recusal motions, the third one will not necessarily freeze the case.
(Justice Guzman did not sit on this case.)
Application of State v. Lueck: Whistleblower Act requirements are jurisdictional
The University of Houston v. Stephen Barth, No. 08-1001 (per curiam)
Barth sued the University of Houston under the Texas Whistleblower Act. The court of appeals, reviewing the University’s arguments, refused to consider some of them on waiver grounds.
The Texas Supreme Court reversed in a per curiam opinion, applying its 2009 decision in State v. Lueck, 290 S.W.3d 876, 883 (Tex. 2009), which held that these provisions of the Whistleblower Act were jurisdictional in nature and thus could not be waived.
Remand in light of Lawton‘s clarification of the 60-day period for a carrier to challenge compensability
Zenith Insurance Co. v. Carmen Ayala, No. 09-0292 (per curiam)
In a per curiam opinion), the Court remanded so that the court of appeals could apply its recent decision in Lawton:
In this workers’ compensation case, the court of appeals concluded that the carrier waived its right to dispute the extent of the claimant’s compensable injury by failing to adhere to Texas Labor Code section 409.021(c)’s sixty-day deadline. We recently held that the sixty-day period for challenging compensability does not apply to a dispute over extent of injury. State Office of Risk Mgmt. v. Lawton, 295 S.W.3d 646, 649-50 (Tex. 2009). In light of Lawton, we reverse the court of appeals’ judgment and remand this case to the trial court for further proceedings.