Texas Supreme Court Opinions and Orders (8/22/14 - Part 2)

In its weekly orders on Friday, August 22, 2014, the Supreme Court was busy. The Court issued 7 opinions, granted 4 petitions for review, and set 4 mandamus petitions for argument. Scott Stolley summarized 3 of the opinions, 2 of the petitions for review, and 2 of the mandamus petitions here. This post will summarize the rest of the opinions and cases set for argument. Also, we expect additional opinions this Friday because it will be the final order list of the Court’s fiscal year. OpinionsNo. 13-0096, Tenet Hospitals, Ltd. v. Rivera – In this Medical Liability Act case, the Court considered how the 10-year statute of repose applies to cases involving minors. The mother of a minor allegedly injured during her birth asserted that the statute of repose violates the open courts and retroactivity provisions of the Texas Constitution. The statute of repose was enacted seven years after the child’s birth and operated to bar her claim when she was ten years old. The Supreme Court rejected both challenges. In an opinion by Justice Guzman (joined by the Chief Justice, and Justices Green, Johnson, Willett, Boyd, Devine, and Brown), the Court found that the mother waived her open-courts challenge because she was not diligent in pursuing her claims. The Court found that the statute was not unconstitutionally retroactive because the mother had 3 years after the statute was enacted to bring suit. Justice Lehrmann filed a dissent. She notes that the Court has previously found statutes of limitation unconstitutional when they bar minors’ claims before they reach majority. She would have applied the same reasoning here.No. 13-0161, In re State Bar of Texas – In a disciplinary proceeding against a former prosecutor, the Commission for Lawyer Discipline sought to use evidence that the prosecutor suppressed exculpatory evidence in an aggravated robbery trial. The trial court refused to give the commission access to the records of the criminal trial because they had been expunged after the defendant’s acquittal. In an opinion by Justice Devine (joined by the Chief Justice and by Justices Green, Johnson, Guzman, Lehrmann, and Brown), the Court found that refusing access was an abuse of discretion. Because the purpose of the expunction statute is to protect the criminal defendant, the Court found that it cannot be used to erase evidence of wrongful conduct by the prosecutor. Justice Boyd (joined by Justice Willett) filed a concurrence, noting that the criminal defendant had joined the motion for access to the expunged records and had thus waived the protections of the expunction statute.No. 13-0712, Henkel v. Norman – In this premises liability case, the homeowner-defendant told the plaintiff-mail carrier “don’t slip.” The trial court found that this statement was sufficient as a matter of law to warn the mail carrier of an icy sidewalk. The court of appeals reversed. In a per curiam opinion, the Supreme Court agreed with the trial court and reversed and rendered judgment. The Court concluded that under the circumstances, the homeowner’s warning was adequate to alert a reasonable person of the condition that allegedly caused the mail carrier’s injury.No. 13-0776, Chapman Custom Homes, Inc. v. Dallas Plumbing Co. – A homeowner sued a plumbing subcontractor for damage allegedly caused to a new home under construction by the plumber’s negligent work. The court of appeals held that the homeowner could not state a cognizable claim against the plumber because (1) the homeowner did not allege a violation of a tort duty independent of the contract; and (2) the homeowner could not sue on the contract because the homeowner was not a party to the contract between the general contractor and the plumber. The Supreme Court reversed in a per curiam opinion, holding that “the negligent performance of a contract that proximately injures a non-contracting party’s property or person states a negligence claim.”Petitions for Review GrantedNo. 13-0515, Klumb v. Houston Municipal Employees Pension System – The issue is whether the board of the Houston Municipal Employees Pension System acted ultra vires such that governmental immunity does not bar suit by the City and certain employees challenging the board’s actions concerning former City employees who were transferred to a non-profit corporation. Argument has been set for November 6.No. 13-0861, Cantey Hanger LLP v. Byrd – After the conclusion divorce proceedings, the ex-husband sued the ex-wife and her attorneys, alleging various causes of action based on the ex-wife’s and her attorneys’ conduct during and after the divorce proceedings. The law firm moved for summary judgment on its affirmative defense of attorney immunity. The trial court granted summary judgment and the court of appeals reversed in part and affirmed in part. The primary issues are whether attorney immunity applies to certain of the ex-husband’s claims and whether the ex-husband had a burden at summary-judgment on the fraud exception to attorney immunity. Argument has been set for December 4.Mandamus Petitions Set for ArgumentNo. 13-0928, In re Lipsky – Lipsky and his co-defendants moved under the Texas Citizens Participation Act (Texas Civil Practice and Remedies Code Chapter 27) to dismiss claims brought against them by Range Resources Corp. and Range Production Co. The trial court dismissed some of the claims and refused to dismiss others. The principal issues are the meaning of the “clear and specific evidence” standard in Chapter 27 and whether Range satisfied that standard. The petition has been set for argument on December 4.No. 13-0953, In re Magnum Hunter Resources Corp. – This petition arises from a legal malpractice suit. The defendant law firm served a third-party subpoena on Magnum Hunter, seeking production of several categories of documents. Magnum Hunter asserted trade-secret protection for its reserve reports. The defendant law firm argued that the plaintiff in the legal malpractice case had a contractual right to the reserve reports and that the offensive use exception to the privilege therefore applied. The law firm also argued that by virtue of the contractual right, the reserve reports were in the possession, custody, or control of the plaintiff. Magnum Hunter argued that the contract provision at issue did not give the plaintiff the right to access the reserve reports. The trial court ordered production of the reserve reports and the court of appeals denied mandamus relief. Argument on the petition has been set for December 9.- Rich Phillips, Thompson & Knight