Texas Supreme Court Argument Preview - November 2017 - Anti-SLAAP, attorney-client privilege for patent agents, and more

Posted by Rich PhillipsThe November argument calendar for the Supreme Court of Texas includes 8 cases, which will be heard on November 7 – November 9. Some highlights of the issues this week include the breadth of Texas’s Anti-SLAAP statute (again), whether communications with a patent agent are covered by the attorney-client privilege, and summary-judgment procedure. You can watch the arguments live (or view the recorded arguments later) here. The cases scheduled for argument are:November 7No. 15-0712, JP Morgan Chase Bank, N.A. v. Orca Assets, G.P., L.L.C. — This oil and gas case (arising from a transaction in the Eagle Ford Shale) explores the margins of the doctrine that a party cannot reasonably rely on an oral representation that is directly contradicted by a provision of a written contract. The issue is whether a negation of warranty provision prevented reliance on alleged oral representations that the acreage at issue was available for lease. The Court may also have the opportunity to provide additional guidance about justifiable reliance.No. 16-0323, Lance v. Robinson — This case arises from a real property dispute. There are three primary issues. The first issue is whether documents that had been introduced into evidence during a temporary injunction hearing and were referenced in a later summary-judgment motion but not attached to that motion were properly part of the summary-judgment record. The second issue (related to the first) is whether an objection to the failure to attach the exhibits is a procedural or substantive objection. The third issue is whether the trial court’s summary-judgment order is proper on the merits.No. 16-0498, Jefferson County, Texas v. Jefferson County Constables Association — This dispute between Jefferson County and some of its former deputy constables presents several issues related to the former deputy constables’ rights, including whether deputy constables have collective bargaining rights, whether a collective bargaining agreement between the county and constables’ association is void, and whether an arbitration award must be vacated because it impinges on the county commissioners’ authority to hire and fire deputy constables. November 8No. 16-0542, Fort Worth Transportation Authority v. Rodriguez — This appeal arising from a wrongful death case presents several issues related to the Texas Tort Claims Act, including whether the damages limit in cases for which immunity is waived applies to the governmental entity and its contractors individually or collectively and whether the employee of a governmental contractor is protected by the same liability limits that apply to employees of the government. No. 16-0647, The State of Texas ex rel. Best v. Harper — This is another in a series of cases arising under the Texas Citizens Participation Act (the Texas anti-SLAAP statute). The two issues presented are (1) whether a petition to remove an elected official from office is subject to dismissal under the TCPA and (2) if so, whether the award of fees mandated by the TCPA should be against the State or only against the individual who brought the removal petition. November 9No. 16-0560, McFadin v. Broadway Coffeehouse, LLC — The issues in this petition, which arises from a post-judgment, post-appeal order regarding disposition of a supersedeas bond include whether the court of appeals has jurisdiction to consider an appeal from the order and, if so, whether the trial court properly ordered disposition of the deposit in lieu of bond. No. 16-0682, In re Andrew Silver — The primary issue in this case (which has drawn a number of amicus briefs) is whether Texas Rule of Evidence 503, which protects attorney-client communications, applies to communications with a non-lawyer patent agent. Relator argues that it does because patent agents are authorized to practice law before the US Patent & Trademark Office. The Real Party in Interest argues that patent agents do not practice law and thus the communications are not protected.No. 16-0851, In re North Cypress Medical Center Operating Co., Ltd. — The mandamus proceeding (which also drew a fair amount of amicus attention) addresses the discoverability of the relator hospital’s contracts with insurance companies. The Real Party in Interest (who is not covered by insurance or Medicare or Medicaid) received treatment at the hospital, and the hospital has a lien against her insurance recovery for the accident that caused her injuries.When the parties could not agree on a reduction of the lien, the Real Party sought discovery of the hospital’s reimbursement rates under insurance and Medicare/Medicaid. The hospital argues that those contracts are confidential and irrelevant to the patient’s arguments about a reduction of her bill since she is not covered by insurance or Medicare/Medicaid.