Supreme Court of Texas Blog: Legal Issues Before the Texas Supreme Court
SCOTXblog

Grants made on a Tuesday afternoon [Jan. 19, 2016]

by

On Tuesday, the Texas Supreme Court issued an orders list in the afternoon, choosing three new cases for oral argument. The unusual timing is explained […]

On Tuesday, the Texas Supreme Court issued an orders list in the afternoon, choosing three new cases for oral argument. The unusual timing is explained by the argument date chosen: February 10th. By issuing this mid-week order, the Court gives the parties the minimum 21 days notice that the rules expect for oral arguments.

now begins some idle speculation about the calendar…

The Court’s calendar shows the next private conference of the Justices is on February 16-17, 2016. And it shows the next argument sitting as March 8-10, 2016, with no cases yet assigned to those dates. Doing a little math… we might expect some grants to be announced on February 16th, to be argued on March 9th or March 10th.

Of course, the Court can adjust its calendar as it sees fit. But those counsel whose fully-briefed petitions are up for conference in February might want to keep some flexibility in their March calendars.

Cases set for oral argument

Untangling some issues related to individual and corporate standing

CHRIS LINEGAR v. DLA PIPER LLP (US), No. 14-0767

fraud malpractice standing
Set to be argued on February 10, 2016

Linegar sued DLA Piper for a variety of claims, including fraud and legal malpractice, related to a business deal that went terribly wrong. The jury found in his favor. DLA Piper argues that Linegar actually lacks standing to bring these claims because the funds he lost were held in a corporate retirement account by Zaychan (a company Linegar) owns. According to DLA Piper, only Zaychan would have standing to bring suit. The court of appeals agreed with DLA Piper, dismissing the case for want of jurisdiction.

Linegar's petition argues that DLA Piper owed duties directly to him, and that he was "personally aggrieved" enough to satisfy the threshold for jurisdictional standing. Because this was Linegar's retirement account, he argues, only he was injured. He is not seeking to recover derivatively for corporate injuries.

The Court has granted the petition for review and set the case for argument in February. If that schedule holds, the Court should announce its decision by summer.

How early in the condemnation process can governmental immunity be invoked?

IN RE LAZY W DISTRICT NO. 1, No. 15-0117

local immunity takings
Set to be argued on March 9, 2016

This dispute between two local governments has reached the Supreme Court on a fast track. The question relates to a very early step of the condemnation process: the court appointing special commissioners to make an initial evaluation of property value.

When Tarrant Regional Water District (TRWD) filed suit to condemn some land for a pipeline easement across land held by another local entity (Lazy W District No. 1), a plea to the jurisdiction was filed immediately, even before appointment of the special commissioners. The trial court declined to move forward until it could first resolve the question raised by the plea, whether it had subject-matter jurisdiction at all. At TRWD's request, the court of appeals granted mandamus relief ordering that the appointments be made immediately. Lazy W petitioned the Supreme Court, which issued a stay freezing proceedings below. It has now scheduled the petition for oral argument.

What litigation conduct will waive a mandatory forum-selection clause?

IN RE NATIONWIDE INSURANCE COMPANY OF AMERICA, ET AL., No. 15-0328

forum selection mandamus
Set to be argued on February 10, 2016

This is a dispute between Nationwide and one of its agents. The contract contained a mandatory forum-selection clause choosing Ohio (its corporate home) as the place where any suit should be filed.

In 2012, this lawsuit was filed. During 2013 and 2014, Nationwide filed a series of special exceptions, along with a motions to dismiss under Rule 91a and a motion for summary judgment. The trial court focused on the pleading issued, giving the plaintiffs an opportunity to amend, without disposing of any claims on the merits. In 2014, Nationwide conducted some limited amount of discovery. In 2015, Nationwide filed a motion to enforce the forum-selection clause. The trial court denied that request, concluding that Nationwide had substantially invoked the Texas court system. Nationwide has sought review by petition for mandamus, urging that the Texas case be dismissed.

The Texas Supreme Court has scheduled the petition for oral argument.

Comments Off on Grants made on a Tuesday afternoon [Jan. 19, 2016]Tags: Case Notes · Order Lists

No grants or opinions – but a short outage on the blog [Oct. 16, 2015]

by

With this week’s orders list, the Court did not issue any opinions or choose any new cases for future argument.

Earlier this week, the Court heard […]

With this week’s orders list, the Court did not issue any opinions or choose any new cases for future argument.

Earlier this week, the Court heard its third group of oral arguments this term, including two that are attracting some press attention:

Programming note

Due to some changes in how the Court’s website presents the official docket information, my scrapers are now very confused. The edits look small to humans. For example, where docket entries for many years have said “Petition for review filed,” they now say “Petition for Review.” And so on. But my scrapers were tuned to the Court’s old data format, and that old predictable format was used to compute a petition’s current “stage” — which fed through most of my data.

The opinion and voting data should remain unchanged. But my list of currently pending petitions is quite thoroughly broken. (As I write, that page shows only 9 cases at the petition stage, all of which are parental termination matters.)

My hope is that this is a short outage. But until I dig into the data and see what is involved in a fix, I can’t make any promises.

Comments Off on No grants or opinions – but a short outage on the blog [Oct. 16, 2015]Tags: Order Lists

Eight grants and one revised opinion [Oct. 9, 2015]

by

With this week’s orders list, the Texas Supreme Court chose eight new cases for future oral argument. It also released a revised version of its […]

With this week’s orders list, the Texas Supreme Court chose eight new cases for future oral argument. It also released a revised version of its earlier majority opinion in Kachina Pipeline Company, Inc. v. Michael D. Lillis, No. 13-0596 .

The eight grants:

Read more

Comments Off on Eight grants and one revised opinion [Oct. 9, 2015]Tags: Order Lists

Quiet orders list [Oct. 2, 2015]

by

There were no opinions and no new grants on this week’s orders list.

There were no opinions and no new grants on this week’s orders list.

Comments Off on Quiet orders list [Oct. 2, 2015]Tags: Order Lists

Quiet orders list [Sep. 25, 2015]

by

This week brought the Court’s second oral argument sitting of the term. The Friday orders did not, however, include any new grants or opinions.

This week brought the Court’s second oral argument sitting of the term. The Friday orders did not, however, include any new grants or opinions.

Comments Off on Quiet orders list [Sep. 25, 2015]Tags: Order Lists

Two per curiam opinions; no grants [Sep. 18, 2015]

by

The Court’s orders list for this week contained two per curiam opinions, each applying a recent holding from the Court.

Who is a proper law enforcement […]

The Court’s orders list for this week contained two per curiam opinions, each applying a recent holding from the Court.

Who is a proper law enforcement official under the Whistleblower Act?

The Court again faced the question of whether a report that an employee makes internally within a government agency counts as a report to "law enforcement," and thus grants the employee protection from retaliation under the Texas Whistleblower Act.

This case was decided at the court of appeals level before the Court's decision in TEXAS DEPARTMENT OF HUMAN SERVICES v. OLIVER OKOLI, No. 10-0567. The Court concluded that the same holding should apply here, and that a report made to an official with merely internal oversight authority within the agency did not qualify. Instead, the report must be made to someone with the authority to enforce laws against the public.

Spectators at a sporting event are not engaging in a "recreational use" of the property

The Supreme Court found the facts in this case indistinguishable from those in its recent decision in UNIVERSITY OF TEXAS AT ARLINGTON v. SANDRA WILLIAMS AND STEVE WILLIAMS, No. 13-0338.

What makes this per curiam interesting is how the Court dealt with Williams being a plurality decision. Because only four Justices joined the "opinion of the court" in that case, its statements do not form a truly binding holding of the Court. So, to assemble a holding, the Court adds up the justices who agreed with the judgment, looking for a majority who shared a common holding.

Although not embracing the plurality’s analysis, Justice Boyd concurred with the opinion’s salient holding. Id. at 62 (Boyd, J., concurring). Thus, a majority of the Court agreed that under facts similar to those in this case, the recreational use statute does not apply.

Comments Off on Two per curiam opinions; no grants [Sep. 18, 2015]Tags: Order Lists

Quiet orders list [Sep. 11, 2015]

by

The Court did not issue any grants or opinions with this week’s orders list.

The Court did not issue any grants or opinions with this week’s orders list.

Comments Off on Quiet orders list [Sep. 11, 2015]Tags: Order Lists

Fourteen grants, and some (straggling) opinions about the San Marcos water-flouridation case [Sep. 4, 2015]

by

At the end of the Court’s first argument week of the term, we have its first orders list — which has 14 cases chosen for […]

At the end of the Court’s first argument week of the term, we have its first orders list — which has 14 cases chosen for oral argument and a (large) list of petition denials and rehearing denials. The Court also granted rehearing of two petitions previously denied, reinstating them to the docket. (The details of the cases chosen for argument will appear in a later post.)

The Texas Supreme Court also issued what are, depending on how you look at it, the first two opinions of this new term or the final opinions of the last one. On August 28, the Court issued an order denying mandamus relief in In re Shannon Dorn, Kathleen O'Connell, Communities for Thriving Waters - Flouride Free San Marcos, and Morgan Knecht, No. 15-0632 . Today, just after the turning of the Court’s calendar, it has published an opinion dissenting to last week’s order and one concurring in the outcome.

Even short delays in the litigation process can doom a mandamus petition

This case involves a petition drive seeking to put the question of fluoridated water on the ballot, in the form of a charter amendment. In May, the city clerk sent a letter to the group stating that the signatures would not be counted because the petitions were not accompanied by an oath or affirmation of validity. The group sent some letters explaining its position to the city. The city responded by itself filing suit on June 18, seeking a declaratory judgment. The group filed an answer and counterclaim on July 17.

On August 14, the district court ruled for the group of voters. The city, however, filed for an interlocutory appeal that stayed further action in the trial court. With the ballot deadline looming, and perhaps inspired by the Court's very recent ruling supporting a citizen's petition in IN RE JARED WOODFILL ET AL., No. 14-0667, the group of voters sought immediate mandamus relief from the Texas Supreme Court.

On August 28, the Texas Supreme Court denied relief. With its September 4 orders list, some of the Justices wrote separate opinions explaining their own thinking.

Justice Devine, joined by Justice Lehrmann, would have granted the mandamus relief because the legal question was clear and because failing to issue mandamus relief would bless the city's use of an interlocutory appeal to moot the ability of courts to speak to the question:

Here, a district court determined the City Clerk must review the petition signatures and perform her ministerial duty. Rather than comply, the City initiated an interlocutory appeal, assuring that the deadline would pass before relief could be obtained. I would not permit a city to use a directory deadline in the Election Code in this manner to either avoid a ministerial duty or thwart the will of the people.

Justice Brown, joined by Justice Green, wrote an opinion concurring in the Court's decision to deny relief. The concurrence focused on the delays earlier in the process — such as the letters being written to the city, and the voters waiting 30 days to file an answer rather than filing one immediately. The concurrence suggested that the voters should have first sought relief from the court of appeals before coming directly to the Texas Supreme Court because the "urgency [here] is of their own making."

The interlocutory appeal filed by the city remains pending in the court of appeals.

Comments Off on Fourteen grants, and some (straggling) opinions about the San Marcos water-flouridation case [Sep. 4, 2015]Tags: Order Lists