The Texas Supreme Court issued opinions in six cases with last Friday’s orders list.

Opinions in Argued Cases

Although the subject matter of the case is forfeiture of property suspected of being involved in criminal activity, the appeal came down to a question of summary-judgment procedure.

The property’s owner moved for a traditional summary judgment, arguing (in part) that the police officer who seized the property did not have a reasonable basis to believe it had been used in criminal activity. In support of that summary judgment, he offered his own affidavit denying that the officer had a reasonable basis.

The Court held that this was not enough to prevail on summary judgment, where the question was the other person’s state of mind:

But the affidavit wholly fails to address whether the officers had a reasonable belief that
the property had or would have a substantial connection with illegal activity as pleaded by the
State — even assuming Bueno could address what the officers believed and whether their beliefs were reasonable. The affidavit certainly does not conclusively prove that none of them did. And until Bueno conclusively established that none of them had such a belief, the trial court could not have properly granted summary judgment on Bueno’s second ground

The Court thus reversed the summary judgment and remanded to the court of appeals to consider other issues in the appeal.

Opinions Without Oral Argument

There is a statute requiring an expert affidavit be filed along with any professional malpractice claims against a licensed architect, surveyor, or engineer. A failure to file this affidavit “may result in dismissal with prejudice.” Tex. Civ. Prac. & Rem. Code §150.002(d).

The question before the Court is whether a plaintiff who fails to abide by this statute can choose to non-suit their claim to achieve a dismissal without prejudice. The defendant here argued that, even though the plaintiff chose to non-suit, the trial court should nonetheless have entered a dismissal with prejudice, under the statute.

The court of appeals concluded that the issue was beyond its jurisdiction as moot after the plaintiff dismissed. The Texas Supreme Court disagreed, and remanded to the court of appeals to reach the merits of the issue.

The parties disputed whether the party seeking to enforce an arbitration clause had waived its right to do so by prior invocation of judicial process.

The court of appeals did not speak to that waiver question, instead concluding that the dispute here did not actually fall within the reach of the arbitration clause. The arbitration provision was in an asset-purchase agreement; the dispute involves a related employment agreement.

At the Texas Supreme Court level, neither party disputed that the dispute fell within the scope of the arbitration clause. (( “In this Court, Richmont complains that the court of appeals erred by holding that the parties do not have a valid agreement to arbitrate. Blake concedes the point, agreeing that the underlying dispute involves both the asset purchase and employment agreements.” ))

The Texas Supreme Court thus reverses the court of appeals on this scope-of-arbitration issue and remands to that court to reach the waiver issue.

This case involves similar beach-access issues as the Severance v. Patterson case. The Texas Supreme Court has chosen to remand this related appeal to the First Court so that it can take the first shot at applying Severance to the facts here.

A guardian ad litem was appointed to represent a minor in a lawsuit settlement. The Texas Supreme Court holds that the ad litem’s services were no longer needed “after it became clear that the next friend did not have interests adverse
to the minor,” and thus that no attorneys fees should have been awarded for those “unnecessary, non-compensable services.” The Court remanded for the trial court to recalculate the fee award.

Opinions on Rehearing

The original opinion was issued with the August 31, 2012 orders list. The original opinion rendered judgment for Lexington. With this revised opinion, the Court instead remands to the court of appeals for consideration of other appellate issues.