The Court’s final orders list of 2012 was issued on December 21, 2012. The Court issued opinions in three cases. It did not select any new cases for oral argument.


Contract interpretation

The Court was asked to interpret a pipeline-construction contract to determine whether one party had failed to disclose the existence of “foreign crossings” of the pipeline path (which would raise the construction costs) or whether the other party was responsible for doing its own due diligence.

Justice Green wrote for a six-Justice majority, holding that the contract plain language allocated all the risk to MasTec. The Court rejected the argument that other language in the contract about due diligence modified this provision. The Court also rejected the argument that El Paso’s disclosure of only about 35% of these “foreign crossings” fell below an industry standard of 85-90% as being irrelevant to construing this contract.

Justice Guzman wrote a dissent arguing that the Court’s approach ignored the rule that specific provisions control over general provisions.

Interlocutory appeals from pleas to the jurisdiction

The Court held that a second plea to the jurisdiction filed by a governmental entity was merely a rehash of its earlier (denied) plea, and thus it did not restart the statutory 20-day clock for filing an interlocutory appeal.

Jurisdiction over child custody orders

The Court held that Texas courts did not have “home state” jurisdiction over child custody for “a child who was born in New Mexico and has lived there all his life.”

This case arose in an unusual posture. A New Mexico trial court had already “ceded jurisdiction to Texas” — an order that is still being tested on appeal in New Mexico. (( Footnotes 7 and 8 (on page 5 of the slip opinion) discuss these New Mexico procedures. On appeal, the New Mexico intermediate appellate court has issued “proposed summary dispositions,” which would have concluded that the child’s home state was New Mexico. One of the parties objected, and the Court decided to schedule the case for its general calendar for later disposition. )) Because the Texas Supreme Court has now held that Texas courts do not have “home state” jurisdiction, the case is in limbo.

Accordingly, the opinion orders the Texas trial court “to confer immediately with the New Mexico Court of Appeals, where the case is currently pending.” If the New Mexico court determines that Texas is the appropriate forum, then the custody questions can move forward. Otherwise, the custody issue should be dismissed.