With Friday’s orders list, the Texas Supreme Court issued six opinions, granted one new petition to be argued this fall, and denied rehearing of a high-profile case about public pensions.

The longest-pending case

Among Friday’s opinions was Bison Building Materials, which has been the longest-pending case on the Court’s docket. (( It was very briefly classified as “abated” last summer, so it might not have been included in internal reports about long-pending cases. It was noted here, however. ))

I wrote in February about the Court’s pattern of opinion releases. At that time, the Court only had three argued cases held over from a previous term — Bison Building Materials, Severance v. Patterson, and Edwards Aquifer v. Day. Now, there are none.

Bison Building Materials, Ltd. v. Lloyd K. Aldridge, No.06-1084

In a 6-3 decision, the Court held that a trial court’s order about an arbitration was not appealable or a proper subject for mandamus relief. The majority opinion was written by Justice Wainwright, who explained that the trial court’s order had left open some factual issues for later determination and thus was not a final judgment under Texas procedure.

What was trickier in the case, and what led to the split between majority and dissent, was the question of how the Federal Arbitration Act (FAA) would be applied in similar circumstances by federal courts. This was not technically a controlling question in the case. (( Because Bison Building had been pending so long, it fell before the effective date of a 2009 Texas statute that would have vested Texas courts with interlocutory appellate jurisdiction whenever a federal court would have the same. )) But both the majority and dissent looked to federal precedent to see if there might be a persuasive reason for the Court to use its more flexible mandamus jurisdiction as a kind of gap-filler here.

The dissent (by Justice Hecht) cited several cases it saw as on-point, but the majority (by Justice Wainwright) disagreed about whether those cases spoke to this precise question (a partial disposition by the trial court, with some issues reserved). Because a majority of the Court did not want to exercise its mandamus authority, the Court ultimately affirmed the decision below dismissing the appeal for want of jurisdiction.

Sabine Pilot claims are tort claims that can, theoretically, support punitive damages

In Safeshred, Inc. v. Louis Martinez, III, No. 10-0426 (Lehrmann, J.), the Court answered a lingering question about whether a Sabine Pilot wrongful termination case — when an employee is fired for refusing to do an illegal act — sounds in tort and thus can support punitive damages. It does, and it can.

But the Court found that the specific evidence here was legally insufficient to support a punitive damages award. The Court held that the “malice” to support punitive damages must be something related to the firing or its aftermath — not the nature of the illegal act that the employee refused to do.

Damages for improper construction in a build-to-suit project

In Ashford Partners, Ltd. v. Eco Resources, Inc., No. 10-0615 (Medina, J.), the Court was faced with a dispute over a commercial build-to-suit lease, where the nominal tenant had arranged for the construction of the building.

Sometime after the lease began, some building defects were discovered. The tenant sued, arguing that it should be compensated for the diminished value of its property interest in the leasehold.

The Court, instead, characterized this as a construction dispute. Because this project was “substantially complete,” the only proper measure of damages for defects was their reasonable repair cost. Here, the landlord (eventually) fixed the damages at no cost to the tenant. Accordingly, the Court concluded that there was no evidence of the right measure of damages.

There is no requirement that an affidavit contain a “jurat,” and defects are waived if not raised in the trial court

The Mansions in the Forest, L.P. v. Montgomery County, No. 10-0969 (per curiam)

There are two holdings in this case that should interest any Texas lawyer who deals with affidavits. The substantive holding is that the Government Code does not require a formal “jurat” in order to be valid.

What’s a jurat? It’s this part of an affidavit:


While making this holding, the Court expressly disapproved of prior cases from at least eight of Texas’s courts of appeals (listed on pages 6-7 of the PDF).

Although the Court does not require that a jurat be included in the affidavit, the substance of what is normally sworn to in the jurat must still be true. If a jurat is not included, the Court explained, “other evidence must show that it was sworn to before an authorized officer…” No objection was made here.

The Court’s second holding, however, was that this deficiency was waived. The Court held that this type of defect would require an objection in the trial court: “When a purported affidavit lacks a jurat and a litigant fails to provide extrinsic evidence to show that it was sworn to before an authorized officer, the opposing party must object to this error, thereby giving the litigant a chance to correct the error.” There was no objection here.

Three other opinions

  • Dr. Edwin Cruz v. Andrews Restoration, Inc. d/b/a Protech Services and Rudy Martinez v. Chubb Lloyds Insurance Co., No. 10-0995 (Jefferson, C.J.). This case has some interesting holdings about the remedy of restoration (which requires that the party also return whatever benefit they received), about preserving error in a jury charge (it might be harder than you thought), and even the “main purpose” doctrine in indemnity law. It’s worth more than a bullet point.

  • Maria Ester Salinas v. Norberto Salinas, No. 11-0131 (per curium). The core issue in this case is about damages for defamation per se. (( This case also led to an unusual docket notation: “motion to grant review, reverse and vacate per curiam due to respondent’s failure to file any response, denied.” ))

  • Commission for Lawyer Discipline v. Heather Schaefer, No. 10-0609 (on reh’g) (per curium). On rehearing, the Court held that a quorum of a state bar disciplinary body committed an error when it proceeded despite a vacant seat — but that this was a non-jurisdictional defect that was waived if not objected to promptly.

Rehearing denied in the “billion dollar” civil-service case

City of Dallas v. David S. Martin and George G. Parker, et al.,
No. 07-0288 asked when city employees who have civil-service contracts for their benefits or salary (such as, in this case, firefighters) can later sue for violations of those contracts.

In December 2011, the Court upheld the City’s immunity from these claims. On Friday, the Court denied the employees’ motion for rehearing.

Petition Granted

Nelda Gonzales v. Southwest Olshan Foundation Repair Co., No. 11-0311 [argument date to be determined]. The question is how a common-law implied warranty interacts with the DTPA (particularly with the statute of limitations).