Texas Supreme Court Opinions - 4/24/15 (Part 2)

Posted by Rich PhillipsAs we reported last week, on April 24, 2015, the Supreme Court of Texas issued opinions in 13 cases. (Click here for the entire order list.) Scott reported on seven of the opinions yesterday. Here are the summaries for the other six:13-0053, State of Texas v. Clear Channel Outdoor, Inc. – In this condemnation case, the issue was the proper valuation of a billboard site that was condemned as part of the widening of the Katy Freeway in Houston. In a unanimous opinion by Chief Justice Hecht, the Court first held that the billboard structures were fixtures, not personal property, and that Clear Channel was therefore entitled to the value of the structures as part of its damages. The Court then held based on its decision in State v. Central Expressway Sign Associates, 302 S.W.3d 866 (Tex. 2009), that the income generated by the billboard structures could not be used to determine their value.13-0605, Brown & Gay Engineering, Inc. v. Olivares – A drunk driver entered the Westpark Tollway by driving the wrong way on an exit ramp. He then caused a head-on collision with a car driven by Pedro Olivares, Jr, and both drivers were killed. Olivares’s mother sued Brown & Gay Engineering, the company that had contract with the Fort Bend County Toll Road Authority to design the road signs and traffic layout for the Westpark Tollway, subject to approval by the authority’s board. Brown & Gay filed a plea to the jurisdiction, arguing that it was protected by governmental immunity as an employee of a governmental entity. In an opinion by Justice Lehrmann (joined by Justices Green, Johnson, Boyd, and Devine), the Supreme Court held that governmental immunity does not extend to “private government contractors exercising their independent discretion in performing government functions.” Chief Justice Hecht concurred, but filed a separate opinion (joined by Justices Willett and Guzman) to express his disagreement with the majority’s analysis of the purposes of sovereign immunity.13-0926, Lippincott v. Whisenhunt – In a per curiam opinion, the Court rejected the court of appeals’ holding that a communication must be “public” to be subject to the Texas Citizens Participation Act (an anti-SLAPP statute). While the TCPA requires that the communication “relate to a matter of public concern” it does not require that the communication be made publicly. The Court held that the court of appeals improperly “amended” the statute by requiring that the communication be public.13-0928, In re Lipsky – This mandamus proceeding also arose from a case under the Texas Citizens Participation Act (TCPA). In a unanimous opinion by Justice Devine, the Court resolved a split among the courts of appeals about the the TCPA’s requirement that the plaintiff establish a prima facie case by “clear and specific evidence.” The Court held that this requirement does not impose a higher burden of proof or preclude reliance on circumstantial evidence. The Court then applied that standard and found that the trial court correctly dismissed some of the claims and correctly refused to dismiss the rest of the claims.13-0978, JLG Trucking, LLC v. Garza – This case arises out of a car accident and the trial court’s exclusion of evidence of a second accident three months after the first, which the defendant contended was the cause of the plaintiff’s injuries. In a unanimous opinion by Justice Lehrmann, the Supreme Court held that the evidence of the second accident was relevant to the issue of causation of the plaintiff’s injuries. The Court rejected the court of appeals’ reasoning that there was no expert testimony to support the argument that the second accident caused the plaintiff’s injuries because the court of appeals conflated relevance and sufficiency. The court of appeals’ approach also improperly shifted the burden of proof to the defendant. The Court also found that the exclusion of the evidence was harmful error that required reversal.13-0048, Rice University v. Refaey – In a per curiam opinion, the Court held that a peace office employed by a private university is an “officer or employee of the state,” and thus the university and the officer are entitled to pursue an interlocutory appeal from the trial court’s denial of their plea to the jurisdiction based on official immunity.