Texas Supreme Court Orders and Opinions - 1/8/16

Posted by Rich PhillipsIn its weekly order list on January 8, 2016, the Supreme Court of Texas issued opinions in five cases:No. 13-0961, Occidental Chemical Corp. v. Jenkins  – This is a premises liability claim arising from an injury sustained in a chemical plant. The plaintiff sued both the current owner of the plant (his employer) and the former owner of the plant. The former owner asserted that two different statutes of repose barred the plaintiff’s claim. The trial court entered judgment for the prior owner based on the statute of repose, but the court of appeals reversed, finding that the former property owner could be liable under either a premises-liability theory or a negligence theory and that the negligence claim remains viable even after the sale of the property. In a unanimous opinion by Justice Devine, the Supreme Court held that “a claim against a previous owner for injury allegedly caused by a dangerous condition of real property remains a premises-liability claim, regardless of the previous property owner’s role in creating the condition.” Because that liability ends with the sale of the property, the Court reversed and rendered judgment that the plaintiff take nothing.No. 13-0977, Fischer v. CTMI, L.L.C. – The issue in this appeal is whether one of the payment provisions in an asset purchase agreement is an unenforceable agreement to agree. The provision at issue was based on projects completed during a particular calendar year and included a clause that the parties would agree about the percentage of completion of those projects. In a unanimous opinion by Justice Boyd, the Court held that the material terms were sufficiently definite for the court to determine the buyer’s obligation and provide a remedy for its breach.No. 14-0574, J&D Towing, LLC v. American Alternative Insurance Corp. – This appeal arises from a car accident that rendered a towing company’s only truck a total loss. The trial court submitted a damages question based on the loss of use of the truck. The court of appeals reversed, holding that Texas law does not permit loss-of-use damages in cases of total destruction of the property at issue. In an opinion by Justice Willett, the Supreme Court reversed. The Court concluded that loss-of-use damages are available as consequential damages in cases where the property at issue has been completely destroyed, but only for the time reasonably necessary for the plaintiff to replace the property at issue. The opinion is almost unanimous; seven of the other justices joined the opinion in its entirety, but Justice Brown joined only selected sections.No. 14-1015, Sloan v. Law Office of Oscar C. Gonzalez, Inc. – This appeal arises from a suit by a client against two lawyers and a law firm. The jury found that the lawyers and the law firm were engaged in a joint enterprise or joint venture. The jury also answered a proportionate responsibility question. Two or the defendants’ appealed. The court of appeals reversed the judgment and rendered a new judgment. The court of appeals’ judgment applied the jury’s proportionate responsibility findings without addressing the plaintiff’s argument that they two appealing defendants should be jointly and severally liable. In a per curiam opinion, the Supreme Court reversed and remanded to the court of appeals with instructions to consider the plaintiff’s arguments about joint and several liability. The Court expressly refused to opine on “whether Chapter 33’s proportionate-responsibility scheme supersedes common law joint-venture and joint-enterprise theories for imposing joint and several liability” and left issue to the court of appeals. We may see this issue at the Supreme Court again in the future.No. 14-1041, Blair v. Atlantic Industrial, Inc. – In a per curiam opinion, the Court reversed the court of appeals’ judgment because all parties agree that the judgment is inconsistent with the court of appeals’ opinion. The Court instructed the court of appeals to reform its judgment to be consistent with the opinion.The Court did not grant any new petitions for review. The Court did grant a stay and request a response in two related mandamus proceedings: No. 15-0903 and No. 15-0905, both styled In re State Farm Lloyds. The issue in these cases is the propriety of the trial court’s protocol for production of electronically stored information (ESI). State Farm contends that the trial court’s protocol improperly allows the plaintiff to require production of ESI in the format requested by the plaintiff regardless of whether State Farm shows that it could be produced in an alternative reasonably usable format. In the interest of full disclosure, Thompson & Knight filed an amicus letter in this case on behalf of Lawyers for Civil Justice.Access the complete order list here.Next week, the Court is scheduled to hear oral argument in 8 cases over three days. I will do preview posts on those cases next week.