Texas Supreme Court Argument Preview - December 2017 - Perpetuities, Dog Bites, and Anti-SLAPP (again)

Posted by Rich PhillipsIn its December sitting, the Supreme Court of Texas is scheduled to hear argument in 11 cases over three days. Issues include the rule against perpetuities (I know …), vicarious liability, a dog bite at a forward operating base in Iraq, exclusion of evidence, and yet another Anti-SLAPP case. You can watch the arguments live (or access recordings afterward) here.The cases scheduled for argument are:December 5, 2017No. 16-0505, Murphy Exploration & Production Co. v. Adams, et al. — The primary issue in this oil and gas dispute is whether the lessor must prove that an offset well, drilled pursuant to a standard offset clause in the parties’ lease, actually protects the leased premises against drainage where the lease does not contain any specific language to that effect. The lessee, petitioner here, asserts that no specific language in the lease requires the lessee to conclusively prove its offset well actually protects the lessor against drainage, while the lessor asserts that basic principles of contractual interpretation imply the requirement.  The secondary issue is whether a trial court can award conditional appellate attorney’s fees without awarding trial attorney’s fees in a declaratory judgment suit.No. 16-0651, Dudley Construction, Ltd., et al. v. Hartford Fire Insurance Co. — In this construction dispute, after the jury found zero damages, the trial court entered a JNOV and awarded the plaintiff damages. The defendant appealed, and the court of appeals reversed the JNOV but remanded the case for a determination of the amount of damages owed. The primary issue is whether the court of appeals should have rendered a judgment for zero damages because the respondent never asserted a cross-point of error that the evidence of zero damages was legally or factually insufficient. The secondary issue is whether attorney’s fees are available to the plaintiff in a Texas Construction Trust Fund Act case.  No. 16-0662, ConocoPhillips Co., et al. v. Koopman, et al., — This case presents questions involving application of the Rule Against Perpetuities to a non-participating royalty interest. In the primary issue, petitioner asserts that the plain language of a mineral deed creates an interest in property that violates the Rule, and that the trial court improperly applied a legal fiction known as the Bagby re-grant theory when construing the deed to avoid application of the Rule. Respondent contends that the mineral deed created a presently-vested interest, thus avoiding the Rule, and alternatively that the Bagby legal fiction employed by the court of appeals, which treats a single conveyance as if it were two conveyances for the purpose of avoiding the Rule, would create a just result by carrying out the intentions of the parties.No. 16-0804, Perryman, et al. v. Spartan Texas Six Capital Partners Ltd., et al. — This case involves an application of the Duhig rule, which comes into play when the owner of less than 100% of the property conveyed by a warranty deed reserves a fractional interest in the property he coveys.  If full effect cannot be given both to the granted interest and to the reserved interest, the Duhig rule provides that priority should be given to the granted interest until the granted interest is fully satisfied. The primary issue in this case is whether the Duhig rule applies to a deed that purports to convey only a fraction of “what the grantor owns,” rather than purporting to convey a fixed percentage of the whole property. There are also a number of secondary issues, cross-issues, and contingent issues, including (1) whether judicial estoppel prevents the petitioners’ claims; (2) whether the court of appeals erred in dismissing one of the respondents as a party to the appeal; and (3) whether venue was mandatory in Montague County — where the land is located — instead of Harris County — where the breach of contract suit was originally filed.December 6, 2017No. 16-0120, Painter v. Amerimex Drilling I, Ltd. — An employee of respondent Amerimex Drilling was driving himself and other employees from the drilling site to a bunkhouse after their shift. The driver fell asleep and the vehicle rolled. The issue is whether the employer can be vicariously liable for the conduct of the driver. The parties dispute the proper test for application of respondeat superior, particularly regarding whether petitioners are required to show that the employer controlled the driver’s conduct during the trip.No. 16-0297, SCI Texas Funeral Services Inc. v. Nelson — The decedent’s son, who was not present for the funeral because his family could not locate him, seeks mental-anguish damages in a suit against the funeral home  The issue is whether the son had a “special relationship” with the funeral home as required to support recovery of mental-anguish damages. (In the interest of full disclosure, Thompson & Knight LLP represents SCI Texas, and I will be presenting the oral argument.)No. 16-0671, In re Xerox Corp. — In this Medicaid fraud suit brought by the State (related to alleged fraud in provision of orthodontic services), the issue is whether (and, if so, how) the proportional responsibility provisions in Chapter 33 of the Civil Practice and Remedies Code apply. Relators assert that the State has sued the various actors in the alleged fraud in different suits seeking the same recovery in each suit. Relators sought to file a third-party petition naming the defendants in the other suits and sought to designate them as responsible third parties. The trial court struck the third-party petition and denied the motion to designate responsible third parties. No. 16-0935, Youngkin v. Hines — This is yet another case arising under the Texas Citizens Participation Act (Texas’s Anti-SLAPP statute). The suit asserts fraud claims against an attorney related to settlement of a separate suit. The issues are: (1) whether the TCPA applies; (2) if so, whether the plaintiffs carried their burden to establish their claim by clear and specific evidence; and (3) whether the defendant attorney conclusively established his litigation-privilege defense; and (4) whether the trial court should have awarded fees and sanctions.December 7, 2017No. 15-0932, American K-9 Detection Services, LLC .v Freeman — This case arises from a dog bite that took place at a U.S. military forward operating base in Iraq. The plaintiff sued the entity that trained the dog in Texas for use in explosives detection and the entity that provides the dogs and their handlers to the military as civilian contractors. The issues include: (1) whether the political question doctrine bars the suit because the military has been named as a responsible third party; (2) whether the suit is preempted by the combatant-activities exception of the Federal Tort Claims Act; (3) whether the defendants are immune from suit; and (4) whether the court of appeals erred by reversing the trial court’s dismissal of the entity that trained and supplied the dog.No. 16-0434, Diamond Offshore Services, Ltd. v. Williams — In a personal injury suit arising from an alleged injury on a vessel, the defendant sought to show that the plaintiff was not as injured as he claimed by introducing a surveillance video showing the plaintiff engaging in various activities. The trial court refused to admit the video, finding under Rule 403 that the probative value of the video was outweighed by the potential for unfair prejudice. The primary issue is whether the video should have been admitted.No. 16-0457, State of Texas v. Morello — In this environmental case filed by the State against a limited liability company and its sole owner, the primary issue is whether the trial court erred in entering judgment against the owner personally. The owner argues that the judgment improperly ignores the limited liability granted by the limited liability company statute. The state contends that the owner is being held liable based on his own conduct as an officer and not as the owner of the LLC.