Texas Supreme Court oral argument preview (12/4/14)

On Thursday, December 4, the Texas Supreme Court will hear oral arguments in three cases in Austin. The cases deal with: (1) a county’s liability for residential flood damage; (2) counsel’s immunity from a subsequent suit brought by the opposing party in a divorce; and (3) the burden of proof under the Texas Anti-SLAPP statute. Reproduced below is the Court’s advisory about the oral arguments.– Scott Stolley, Thompson & Knight Texas Supreme Court advisoryContact: Osler McCarthy, staff attorney for public information512.463.1441 or click for emailFor Thursday, December 4, 2014THREE ARGUMENTS SET THURSDAYArguments begin at 9 a.m. in the Supreme Court Courtroom in Austin. Link for live video webcasts courtesy of TexasBarCLE.com.13-0303Harris County Flood Control District and Harris County v. Edward A. and Norma Kerr, et al.from Harris County and Houston’s First Court of AppealsFor petitioners: Kevin Dubose, HoustonFor respondents: Daryl L. Moore, Houston            In this case, alleging Harris County in essence took the plaintiffs’ property by failing to implement flood-control measures and by approving residential development without flood-mitigation efforts, the issues are whether (1) the county knew with substantial certainty that flooding damage would result; (2) its failure to implement flood controls caused damage to the plaintiffs’ homes; and (3) the county’s development approvals amounted to a public use. The Kerrs and other property owners contend the county’s substantial certainty that the owners’ homes would be damaged can be shown by allowing “unmitigated” development that aggravated runoff in heavy rains, as flood-control plans foretold; that flooding was substantially certain from the county’s failure to complete a flood-control plan the county undertook; and that recurrent flooding bolstered that certainty. The county counters that the flood-control plan was abandoned because its financing did not work and faulty criteria undermined the plan’s design. The trial court denied the county’s jurisdictional plea. The appeals court affirmed.BriefsCourt of appeals opinion13-0861Cantey Hanger LLP v. Philip Gregory Byrd, et al.from Tarrant County and the Fort Worth Court of AppealsFor petitioner: Stephen L. Tatum, Fort WorthFor respondents: Lindsey M. Rames, Dallas            In this fraud suit by Byrd against the law firm that represented his ex-wife in a divorce, the issues are (1) whether attorney immunity protects lawyers who allegedly forged a bill of sale for property awarded to the ex-wife in the decree (with tax consequences to the ex-husband) and (2) whether the burden to show the attorney-immunity doctrine’s fraud exception should be borne by the ex-husband as plaintiff. Byrd’s suit against Cantey Hanger alleged that the firm prepared paperwork to transfer ownership of an airplane his ex-wife got in the divorce but arranged for its sale from Byrd’s leasing company to a third party, falsely listing the ex-wife as the leasing company’s manager. As a result, the leasing company incurred tax liability that the divorce decree specified the ex-wife would bear. The trial court granted summary judgment to the law firm on the immunity question. The appeals court affirmed.BriefsCourt of appeals opinion13-0928In re Steven Lipskyfrom Parker County and the Fort Worth Court of AppealsFor Lipsky and Shyla Lipsky: Brent M. Rosenthal, DallasFor Range Production and Range Resources: John H. Cayce, Fort WorthFor consultant Alisa Rich: Shawn M. McCaskill, Dallas            In this mandamus action arising from allegations that fracking contaminated a home-water supply, the principal issue is whether “clear and specific” evidence supporting defamation and conspiracy claims in order to thwart their dismissal requires a heightened proof standard. Lipsky and his wife, the homeowners, and Rich, an environmental consultant, moved under the Texas Citizens’ Participation Act to dismiss a lawsuit against them. Range, the minerals producer drilling near the Lipsky home, claimed Lipsky defamed the company by alleging it was corrupt and “owned” state oil-and-gas regulators and by fabricating a video showing a water hose’s end afire after he put a match to it. Range also alleged the Lipskys and Rich conspired to defame it. The Citizens’ Participation Act permits a suit to be dismissed if it was filed to stymie a defendant’s free-speech rights, but to avoid dismissal the plaintiff must present “clear and specific” evidence supporting the suit’s essential elements. The trial court denied the Lipskys’ and Rich’s dismissal motions. The court of appeals reversed in part, dismissing claims against Mrs. Lipsky and the consultant but permitting the suit against Steven Lipsky to proceed.BriefsCourt of appeals opinionNOTE:This advisory is for planning purposes only. The Court’s staff attorney for public information prepares these summaries, which reflect his judgment alone on facts and legal issues and in no way represent the Court’s opinion about case merits.