Texas Appellate Watch

Texas Supreme Court Argument Preview (September 24 & 26, 2019)

Posted by Melissa Davis, Stephanie Dooley Nelson, and Connor Bourland

This week, the Supreme Court of Texas will hear arguments on Tuesday and Thursday. You can watch arguments live (or watch the recordings, which are usually posted by the day after argument) here.

Tuesday, September 24

No. 17-0557, Pike, et al. v. Texas EMC Management LLC, et al. — This appeal presents several issues stemming from the breakup of a limited partnership, including whether one of the plaintiffs had standing to pursue its claims; whether the damage awards violate the one-satisfaction rule; whether sufficient evidence supports the damage awards; and whether the court of appeals erred in remanding the case to the trial court for entry of a permanent injunction prohibiting defendants from using the plaintiffs’ trade secrets. (Note: Thompson & Knight LLP represents the Respondents in this case.)

No. 19-0970, Office of the Attorney General v. Rodriguez — In this whistleblower case, the court of appeals found legally sufficient evidence of causation based on a retaliatory motive attributed to an intermediate supervisor, whose approval was necessary but not sufficient to result in termination. In its petition, the Attorney General’s Office argued the intermediate supervisor could not be a final decision maker, there was no evidence he acted with retaliatory motive, and that it was entitled to an offset of the front-pay award for years during which Rodriguez failed to look for work. After denial of the original petition, the Attorney’s General’s Office moved for rehearing, focusing on conflicts between the court of appeals’ causation analysis and the Texas Supreme Court’s subsequent opinion in Alamo Heights Independent School District v. Clark, 554 S.W.3d 755 (Tex. 2018), a Texas Commission on Human Rights Act case that analyzed but-for causation. The motion for rehearing also argued that courts of appeals lack guidance on who is the final decision-maker who can create liability for an employer and what an employer must show to demonstrate a failure to mitigate damages when a plaintiff stops seeking other employment. 

No. 18-0413, Town of Shady Shores v. Swanson — The principal issue in this appeal is whether governmental entities may use no-evidence summary-judgment motions as a vehicle for challenging jurisdiction on governmental-immunity grounds. The Fort Worth Court of Appeals held that a governmental entity could not use a no-evidence summary-judgment motion to defeat jurisdiction because the governmental entity has the initial burden to negate the existence of jurisdictional facts before the plaintiff has a burden to produce evidence raising a fact question on jurisdiction. The second issue in this appeal is whether the court of appeals erred in holding that the Texas Open Meetings Act waived immunity for certain of Swanson’s claims brought under the Uniform Declaratory Judgments Act. Both the State of Texas and a group of associations of various governmental entities filed amicus briefs.

Thursday, September 26

No. 17-0736, Teal Trading & Development LP v. Champee Springs Ranches Property Owners Ass’n — The Court will consider the validity of a non-access easement (a “spite strip”) that separates two contiguous tracts of property owned by the Petitioner in Kerr County. At issue is whether the Respondent property-owners’ association has standing to enforce the easement when the current and former property owners of the association waived the non-access easement; whether the home-owners’ association should be estopped from enforcing the easement; and whether the easement should be declared void on public policy grounds.  

No. 18-0386,Gray v. Skelton — The Court will consider whether the Fourth Court of Appeals properly reversed an order dismissing a legal-malpractice claim under Rule 91a. The case concerns an attorney who, after her conviction of forgery was vacated when the will she allegedly forged was admitted to probate, sued her criminal defense attorney for malpractice. The attorney was never exonerated and filed suit in 2016, one year after her conviction was vacated, but nine years after the alleged malpractice. The trial court dismissed the claim under Rule 91a. The Court of Appeals reversed. At issue in this case is (1) whether the Hughes v. Mahaney & Higgins rule (which tolls the limitations period on legal malpractice arising out of litigation until all appeals have run) applies with equal force to post-conviction proceedings in the criminal context; and (2) whether the Peeler doctrine (which prohibits legal malpractice claims by convicted criminal defendants until after the defendant has been exonerated) extends “exoneration” to vacated convictions.

No. 18-0486, Erkison v. Renda — The Court will consider whether the Hughes rule extends to legal-malpractice claims that occurred in connection with the prosecution of a claim or defense. On the alleged advice of counsel, a business owner transferred various assets to the business’s creditors when the business owed a $12 million debt to the U.S. Government, which led the Government to file a priority suit against the business owner. Eleven years after the alleged advice (six years after the business owner discovered his injury and one year after the final resolution of the Government’s priority suit), the business owner filed a malpractice claim against the attorney who advised him. The trial court granted summary judgment and the Seventh Court of Appeals reversed. At issue in this case is (1) whether the Hughes rules extends to claims of malpractice in connection with, but not actually arising out of, the prosecution or defense of a claim on behalf of the client; (2) whether there exists a “transactional malpractice” exclusion to the Hughes rule under Texas law (and, if it exists, whether it applies); and (3) whether the discovery rule barred the business owner’s claims because he discovered his injury more than two years prior to bringing suit.

Texas Supreme Court Argument Preview (September 17-19, 2019)

Posted by Rich Phillips, Stephanie Dooley Nelson, Dina McKenney, and Connor Bourland

The Texas Supreme Court will hear the first arguments of the term this week, starting on Tuesday. The Court will hear argument in a total of nine cases this week. Last week, Justice Jeff Brown formally resigned to become a United States District Judge in Galveston, and Justice Jane Bland was sworn in. So Justice Bland will be on the bench for arguments this week.

You can watch arguments live (or watch the recordings, which are usually posted by the day after argument) here.

The Court will hear argument in the following cases:

Tuesday (September 17)

No. 17-0822, ConocoPhillips Company v. Ramirez — In this case, the Court will consider several issues related to a trespass to try title action filed by the purported remaindermen of a life estate in minerals subject to an oil and gas lease, including (1) the interpretation of a will to determine whether the decedent granted a life estate in certain minerals in addition to a life estate in the surface interest, (2) the interpretation of Texas Natural Resources Code Chapter 91 regarding pre-judgment interest and attorneys’ fees, (3) the extent to which the purported remaindermen are entitled to a cotenancy accounting from the lessee, and (4) the deductions the lessee was allowed to make from the accounting. After allegedly succeeding to the remainder of their father’s 1/4 mineral interest, the Ramirezes filed suit against ConocoPhillips, alleging that their father’s oil and gas lease did not apply to their interest and that they were owed a cotenancy accounting for 1/4 of the net profits from production from the minerals from the date of first production as well as prejudgment interest and attorneys’ fees.

No. 18-0264, George P. Bush, as the Land Commissioner of the Texas General Land Office v. Lone Oak Club, LLC — In this case, the Court will consider whether the 1929 “Small Bill” applies to land submerged by tidally influenced water. This case concerns the ownership of land submerged by tidal waters in Lone Oak Bayou. The Lone Oak Club succeeded to title to the Barrow Survey, a portion of which extends into the Lone Oak Bayou. While The Club acknowledged that the waters themselves are public waterways, the Club asserted private ownership of the submerged beds. The General Land Office determined, however, that the Bayou, any lakes connected to the Bayou, and submerged lands were state-owned because the waters are tidally influenced and are, therefore, public waterways. The Club filed a trespass to try title action against the GLO and Commissioner Bush. The primary issue in this case is whether the Small Bill, a 1929 act granting title to the holders of land patents lying across, or partly across, waterways and navigable streams similarly granted title to the submerged land under tidally influenced water in favor of the patent holder.

No. 19-0234, Degan v. The Board of Trustees of the Dallas Police & Fire Pension System — This certified appeal from the Fifth Circuit involves beneficiaries of the City of Dallas pension fund for police and firefighters who challenged the constitutionality of a newly enacted statute that affects the withdrawal method from the pension system’s deferred retirement-option plan. The prior statute had allowed retirees to elect among three withdrawal methods: lump-sum, adjusted monthly payments, or as an annuity to be paid in equal monthly payments for the life of the member. The new statute, enacted in 2017 in response to the financial problems afflicting the pension fund, permits only an annuitized option. The Fifth Circuit’s certified questions ask: (1) whether the method of withdrawal of funds from the deferred retirement-option plan is a service retirement benefit protected under the Texas Constitution and, if so, (2) whether the pension board’s decision, pursuant to the statute, to alter previous withdrawal elections and to annuitize the deferred-option money over the plaintiffs’ respective life expectancies, violates the state constitution.

Wednesday (September 18)

No. 17-0905, San Antonio River Auth. v. Austin Bridge & Road L.P.  — Austin Bridge and Road L.P. brought claims in arbitration against the San Antonio River Authority (“SARA”)—a governmental agency—relating to a construction project. In the trial court, SARA sought declaratory relief relating to the arbitration claims and moved to stay the arbitration on the grounds that (1) SARA was not authorized to agree to binding arbitration and (2) the arbitration claims were barred by governmental immunity. Under the Governmental Dispute Resolution Act, governmental agencies may develop and use alternative dispute resolution procedures. Texas Government Code section 2009.005 further provides that “[n]othing in this chapter authorizes binding arbitration as a method of alternative dispute resolution.” The issues before the Court include whether Texas Government Code section 2009.005 prohibits a government agency from agreeing to binding arbitration and whether SARA waived its immunity for the arbitration claims.

No. 18-0102, In re Turner — The Court will consider whether Chapter 74’s expert-report requirement applies to a treating physician’s deposition when the physician is a non-party but may become a defendant. In this medical-malpractice case, the plaintiff did not sue her treating physician, and her Chapter 74 expert report did not inculpate the physician. When the plaintiff subsequently sought to depose the treating physician (before the deadline for joining new parties), the physician moved to quash the deposition subpoena on the grounds that the plaintiff had not filed a Chapter 74 expert report concerning his conduct. The plaintiff argues that Chapter 74 does not apply because the physician is not a defendant. The Dallas Court of Appeals granted mandamus relief to prevent the deposition from going forward. 

No. 18-0504, Robinson v. Home Owners Management Enterprises — In this home warranty dispute, Robinson asserted class claims in arbitration against Home Owners Management Enterprises Inc. (“HOME”). HOME moved in the trial court to preclude the arbitrator from considering the class claims on the grounds that the issue of whether the arbitration agreement included class claims was an issue for the court and not the arbitrator and that class claims were precluded by the arbitration agreement. The issues before the Court include whether the trial court or the arbitrator should decide class arbitration and whether the arbitration clause authorizes class arbitration.

Thursday (September 19)

No. 18-0068, Warner Bros. Home Entertainment, Inc. v. Jones — This defamation case arises from a motion under the Texas Citizens Participation Act (TCPA), but presents issues about a relatively new defamation statute, rather than about the TCPA. The Defamation Mitigation Act was enacted in 2013 and provides that person who claims to have been defamed "may maintain an action for defamation only if" the person has requested a correction, clarification, or retraction from the defendant and the defendant has refused. Tex. Civ. Prac. & Rem. Code § 73.055(a). The issue for the Supreme Court is the effect of failure to request a correction, clarification, or retraction. The court of appeals concluded that failure to do so does not require dismissal of the claim, but only bars recovery of exemplary damages. Respondent also argues that the remedy for failure to seek a correction, clarification, or retraction is abatement, not dismissal. This will the Court's first opportunity to interpret the Defamation Mitigation Act.

No. 18-0273, In re R.R.K. — This child-custody dispute presents issues regarding whether an order by the trial court was a final judgment that triggered the petitioner's deadline to file a notice of appeal. The trial court entered a "Memorandum" order and then issued an "Order in Suit to Modify Parent-Child Relationship" several months later. The court of appeals found that the Petitioner's notice of appeal was untimely because it was not filed within 30 days of the Memorandum order. Petitioner argues that the Memorandum order was not a final judgment because the trial judge did not intend it to be a final order and because it did not contain specific language required by Texas Family Code section 105.006 for judgment in suits affecting the parent-child relationship ("SAPCR"). Respondent argues that the Memorandum order had all the elements required for a final judgment, even if it did not contain the language required by section 105.006. The issue for the Court is essentially whether the requirements of section 105.006 must be met before an order in a SAPCR can be considered "final" purposes of triggering appellate deadlines.

No. 18-0656, Creative Oil & Gas Operating LLC v. Lona Hills Ranch, LLC — The Court will consider whether the Texas Citizens Participation Act ("TCPA") applies to claims related to the validity or termination of an oil and gas lease. The case began as a trespass to try title action by the lessor of an oil and gas lease asserting that the lease had terminated. The operator and lessee asserted counterclaims that the lessor had breached the lease by falsely communicating to oil and gas purchasers that the lease had terminated and by starting litigation asserting that the lease had terminated without complying with notice requirements in the lease. The lessor filed a motion to dismiss the counterclaims under the TCPA. The issues include whether the statements at issue are subject to the TCPA and, if so, whether the counterclaimants carried their burden under the TCPA to establish a prima facie case on each element of their claims by clear and specific evidence.