Texas Supreme Court opinions and orders (8/22/14 - Part 1)

In its weekly orders (8/22/14), the Texas Supreme Court issued seven opinions, granted four petitions for review, and set four mandamus petitions for argument. In this post, I will summarize three of the opinions, two of the petitions for review, and two of the mandamus petitions. Rich Phillips has summarized the remaining cases in a separate post.Click here to read the order list. Click here to access the seven new opinions.New OpinionsNo. 10-0567 — Texas Dep’t of Human Servs. v. Okoli — This is a whistleblower case, in which the plaintiff reported the alleged improper conduct to supervisors but not to the department’s inspector general. The Supreme Court held that the plaintiff failed to fulfill the necessary predicate of showing that he made a good-faith report to an “appropriate law enforcement authority.”No. 13-0084 — Houston Unlimited, Inc. Metal Processing v. Mel Acres Ranch — The plaintiff’s property was contaminated by runoff from a neighboring tract. The plaintiff recovered for “stigma” damages to the property after the contamination subsided. The Supreme Court recognized that it had never addressed whether “stigma” damages are recoverable, and declined to address the issue in this case, because the Court found that the plaintiff’s damages expert failed to present legally sufficient evidence of the claimed “stigma” damages. The expert had reduced the property’s unimpaired value by a percentage she derived from the purported percentage dimunition in value of two other contaminated properties in nearby counties.No. 13-0409 — In re M.G.N. — During trial, one juror was replaced by an alternate, because the juror disclosed that he had personal knowledge that contradicted testimonial insinuations made about one party’s former employer. Later, another juror was excused because of an illness, and the trial proceeded to a verdict of 11 jurors. The Supreme Court held that the proper analysis has two steps. First, the court must determine whether the first juror (who was replaced by an alternate) was statutorily “unable or disqualified to perform” as a juror. Second, with respect to excusing the ill juror (resulting in a jury of less than 12), the court must determine whether the juror was constitutionally “disabled,” which is a different test than whether a juror is “disqualified.” The Court remanded to the court of appeals to perform this two-step analysis. Petitions for Review13-0497 — G.T. Leach Builders, L.L.C. v. Sapphire VP, LP — In this case, a hurricane damaged a condo project that was under construction. The owner of the project brought two lawsuits, one against defendants who allegedly failed to procure adequate insurance and the other against design professionals for negligent design. Much later, the general contractor was added to both lawsuits. The general contractor sought to compel arbitration, which was denied. Among the issues raised in the Supreme Court are: (1) applicability of a clause stating that arbitration cannot be initiated after the statute of limitations has expired; (2) whether the general contractor’s conduct waived the arbitration clause; and (3) whether other parties can piggyback onto the arbitration clause.13-0552 — Shell Oil Co. v. Writt — The U.S. Department of Justice made an inquiry of Shell  about possible bribery related to a Shell project in Nigeria. Shell then performed an interal investigation, and later gave the DOJ a copy of Shell’s internal report, in which Shell accused the plaintiff (who was a Shell employee) of unethical behavior. The plaintiff sued for defamation. The principal issue on appeal is whether Shell is protected by the absolute privilege even though the DOJ had not brought formal charges when Shell produced the internal report. The court of appeals held that Shell was entitled only to a conditional privilege.Mandamus Petitions12-0946 — In re Bridgestone Americas Tire Operations, LLC — This case involves an accident in Mexico that involved only Mexican citizens. The minor plaintiffs brought suit in the U.S. through their uncle, who lives in the U.S. and is designated as their next friend, even though their grandparents in Mexico are their legal guardians. Bridgestone seeks mandamus to compel the granting of its motion to dismiss based on forum non conveniens. 13-0794 — In re General Motors, LLC — GM complains about a discovery order that allows the plaintiffs’ counsel to share GM’s trade secrets with other litigants in other cases and does not require the return of the documents to GM when this case is over. GM also argues that the order amounts to an unconstitutional taking of its property.–  Scott Stolley, Thompson & Knight