Saturday, April 28, 2007

April 27, 2007 Texas Supreme Court Opinions

The Supreme Court of Texas Issued Four Opinions on Friday, April 27, 2007:

In Re Christus Spohn Hospital, No. 04-0914 (Tex. Apr. 27, 2007)(O'Neill)(mandamus)(evidence, production, privilege, snap-back provision)

Farmers Group, Inc. v Lubin, No. 05-0169 (Tex. Apr. 27, 2007)(Brister)(AG class action suit)Justice Hecht delivered a separate opinion in Farmers Group, Inc. v. Lubin

South Texas Water Authority v. Lomas, No. 05-0855 (Tex. Apr. 27, 2007)(per curiam)(individual standing and associational standing)

Vandevender v. Woods, No. 05-0956 (Tex. Apr. 27, 2007)(Willett)(public employment, benfits)

Sunday, April 22, 2007

April 20, 2007 Texas Supreme Court Opinions

The Supreme Court opinions issued April 20, 2007 cover much legal ground and do not lend themselves to an easy summary under a common theme.

After a lull lasting several weeks, during which only a couple of per curiam opinions were handed down, the Supreme Court, on Friday issued thirteen opinions covering a wide array of issues spanning family law, employment law, leases, medical malpractice, and other areas of law and practice, not to mention sovereign immunity, a perennial theme. Two of the signed opinions were authored by Chief Justice Wallace B. Jefferson. Justice Nathan L. Hecht, Justice Scott A. Brister, Justice Harriet O'Neill, and Justice Dale Wainwright wrote one opinion each. The remaining decisions were issued per curiam. In this batch of opinions, dissent was remarkably absent. Justice Johnson delivered a concurring opinion in one of two cases involving Baylor University. Baylor v. Coley, No. 04-0916 (Tex. Apr. 20, 2007)(Hecht);
Baylor Univ. v. Sonnichsen, No. 04-0851 (Tex. Apr. 20, 2007).

Baylor's Day in the Supreme Court - University prevails in two employment disputes

The two university cases involved contract issues regarding employment. In Baylor Univ. v. Sonnichson, a former coach's fraud claims failed because he was seeking the same damages he could not recover for breach of an alleged oral contract because that claim was barred by the statute of frauds. In Bayler v. Coley, the Plaintiff likewise ended up empty-handed. The Court held that the there was no evidence that the University had breached Coley's contract, and that there was no jury charge error regarding constructive discharge. Justice Johnson wrote separately on the issue of preservation of jury charge error and concluded that Coley' s proposed jury instruction was not substantially correct because it contained a comment on the weight of the evidence by referring to her as being tenured in a position, rather than a field, which would have allowed for greater flexibility in assignments and responsibilities without resulting in a potentially actionable demotion. The nature of Coley's job responsibilities was not clearly defined and was a contested issue.

Two more in a steady stream of sovereign immunity decisions

Sovereign immunity, which accounts for a large number of cases in which the Supreme Court granted review recently, was not an issue in these two higher education employment cases because Baylor is a private university. In an unremarkable sovereign immunity case decided on Good Friday, the Court reversed for reconsideration in light of new case law by the trial court, as it has done in other cases decided in per curiam opinions. See State of Texas v. Precision Solar Controls Inc. (Tex. April 5, 2007). In the latest sovereign immunity case, U.S. v. Boateng, the Texas Supreme Court had occasion to examine a different angle. In this case, immunity was invoked by the United States (on behalf of a Medicare intermediary), rather than a state entity or a local government. Moreover, the defensive plea was asserted in a bill a review proceeding in which the party seeking relief from a prior judgment necessarily appears as petitioner, rather than defendant. The Supreme Court denied the United States' petition, thus allowing the case to be remanded to the trial court on mandate of the court of appeals, which had reversed the trial court's order granting the bill of review without trial. The Supreme Court opined that fact issues regarding the extent of the immunity claims remained unresolved.

In a second sovereign immunity case in which a decision was handed down April 20, 2007, the Supreme Court examined whether a takings claim is the proper avenue for the owner of a patent who performs services under contract with the State to assert his intellectual prporty rights. The patent-holder, Herbert Holland, had filed suit claiming the State’s unauthorized use of his patented technology constituted a taking under Article I, section 17 of the Texas Constitution. Writing for the Court, Justice Harriet O'Neill, rejects the takings claim, when, as here, the State’s use is pursuant to colorable contract rights, even though the contract was not between the State and Holland individually. Because the State was not acting under its powers of eminent domain, Holland could not assert a valid takings claim against the State for the alleged unlawful use of his patent. Finding that the state retained its immunity from suit under these circumstances, the Supreme Court reverses the court of appeals' judgment and dismisses Holland’s claim for want of jurisdiction. State of Texas v. Holland, No. 05-0292 (Tex. Apr. 20, 2007)

Domestic Relations, Benefits, and Wills

Several of the most recent decisions of the Supreme Court impact family law practitioners and probate lawyers. In the Estate of Marvin Nash afforded the Court an opportunity to address the effect of a divorce on a will, while in Holmes v. Kent, in a per curiam opinon, the Court resolved a benefits dispute under the Teacher Retirement System (TRS) by finding that a former teacher had not followed proper procedure to remove her former husband as designated beneficiary of an optional annuity prior to her death. The Court adopted the position urged by the TRS, which had filed an amicus brief in which it argued that the statutory requirements for changes in beneficiaries should be strictly adhered to.

Although the Supreme Court does not hear criminal cases, it had occasion to grant habeas corpus relief in a case in which a party sought to enforce contractual alimony by having the ex-spouse jailed for nonpayment. Finding that failure to comply with a private agreement regarding alimony created a debt not enforceable by contempt, the Supreme Court ordered the ex-husband released from custody. In Re Alvin Green, No. 06-0496 (Tex. Apr. 20, 2007)(per curiam).

Variations on Malpractice: Doctor vs. Lawyer and Doctor vs. Doctor

Two of the decided cases involved health care liability claims. In Low v. Henry, the Supreme Court reviewed the propriety of a sanctions order for factually false allegations against physicians in a medical malpractice case. In an opinion authored by Justice Wainwright the Court agrees with the trial court that pleading abuse did occur, but remands for reconsideration of the $50,000 in sanctions imposed on the attorney, which the Court deems severe and not supported by sufficient evidence. Low v. Henry, 50 Tex. Sup. J. 606 (Tex. 2007). In Jackson v. Axelrad Justice Brister wrote the opinion for the court resolving a dispute over the responsibilities of a patient in the medical malpractice context, where the patient-plaintiff himself was also a medical doctor, rather than a lay person to whom special knowledge and expertise cannot be imputed, and should have reported a critical symptom.

Commercial Tenants Beware!

On the business law front, the Supreme Court addressed an important and recurring issue in commercial leasing. Writing for the unanimous court, Chief Justice Jefferson held that the "as-is" provision of the parties' contract, and the express warranty disclaimer contained therein were valid and enforceable, and thus barred the tenant's suit against the landlord.
Gym-N-I Playground, Inc. v. Snider, No. 05-0197 (Tex. Apr. 20, 2007)(Jefferson)

Second Bite at Out-of-State Defendants

In IRA Resources, Inc. v. Griego, an appeal from the trial court's ruling on a special appearance, the high court determines that the court of appeals had improperly found special jurisdiction, and remands with instructions that the court reexamine the case to see if the criteria for general jurisdiction were satisfied. The court of appeals had not reached that issue.

Mandamus Relief Granted (Conditionally, as is Customary)

The Supreme Court granted mandamus in two of the cases disposed of April 20, 2007. As it had done on several occasions before, it directed a trial court to enforce arbitration. In Re RLS Legal Solutions, LLC. It did so notwithstanding the concerns Chief Justice Jefferson had recently voiced in his State of the Judiciary Address about the erosion of legal and appellate remedies by private arbitration. In addition, the Court granted mandamus to require disqualification of counsel in a suit by a doctor against a medical center for revoking his hospital privileges, holding that there was no adequate other remedy. The hospital's attorney had previously been associated with the firm that represented the doctor and the representation of the current client would have required him to call into question the advice given the doctor by his former law partner. In Re Michael Angelo Basco, No. 05-0771 (Tex. Apr. 20, 2007)(per curiam)

Saturday, April 14, 2007

Court Insiders to Explain Supreme Court Statistics and Operating Procedures

Lisa E. Hobbs, General Counsel of the Supreme Court of Texas, and former rules attorney, will interpret the supreme court's caseload, process, and disposition data and its implications for appellate attorneys later this month. Ms. Hobbs will give a presentation titled "The Numbers Cruch: Supreme Court Statistics and What they Mean for the Practitioner," at a Bar sponsored CLE event to be held in Austin, Texas.

Blake A. Hawthorne, the newly appointed Clerk of the Supreme Court, will provide a "peek behind the curtain" of the Supreme Court and shed light on its internal operating proceedures.

Also scheduled to speak are former Chief Justice Thomas R. Phillips (on evolving notions of no evidence) and two current members of the state's highest court for civil appeals: Nathan L. Hecht and Justice Paul W. Green. Justice Hecht, who has recently been at the center of a controversy regarding politicking from the bench (vocal public support for the ill-fated candidacy of Harriet Miers, which triggered an ethics inquiry by the State Commission on Judicial Conduct) and acceptance of donations to his campaign chest and legal defense fund from a PAC closely connected to a party in a currently pending case from which he has not recused himself. Justice Hecht will speak on forthcoming changes to the rules of procedure (promulgated by the Supreme Court in its policymaking capacity for the state judiciary), and changes in the rules of evidence.

A staff attorney, Amy J. Schumacher, will provide an overview of the issues currently prending before the Texas Supreme Court. Leading appellate practitioners will offer advice on how to draft effective petitions for review, replies, and briefs on the merits.

The conference, bannered PRACTICE BEFORE THE TEXAS SUPREME COURT, is jointly sponsored by the State Bar of Texas and the Appellate Section of the State Bar, and will be held at Omni Hotel in Downtown Austin on April 27, 2007.

Wednesday, April 4, 2007

Texas Courts of Appeals Reverse Rarely

Reversal Rates of the Texas Courts of Appeals: Less Than 15%


What Are the Odds of Winning An Appeal in Texas? The reversal rates of the Texas Supreme Court and the fourteen intermediate courts of appeals differ markedly. In Fiscal Year 2006 the Supreme Court, which is the court of last resort in civil and juvenile matters, reversed the lower courts - at least in part - in 71 % of the cases in which it granted a petition for review. The statewide reversal rate for courts of appeals, by contrast, was a mere 14.1% for civil cases and 4.6% for criminal cases. The combined rate for both types of cases was 9%. Computed as an average of all fourteen appellate courts (which differ greatly in size and case loads), the respective rates of success on appeal do not differ much: 15.4% for civil cases and 5.0% for criminal cases, with a combined rate of 9.9%.

Why Is the Supreme Court Reversal-Happy While the Courts of Appeals Are Just the Opposite? The principal reason for this difference appears to be that the Supreme Court exercises discretionary review; i.e. it picks and chooses the cases and the legal issues it wishes to address. Unlike an appeal to the highest court, the first appeal in a case is a matter of right. The intermediate courts of appeals must thus resolve each appeal on the merits unless DWOP is appropriate (often for failure to pay fees or to timely file a brief), dismissal is requested by the parties after an appeal is docketed, or the court finds other grounds to dismiss the appeal, such as want of jurisdiction (DWOJ). The Supreme Court simply abstains from deciding cases in which it would presumably affirm or dismiss if it were required to rule, and chooses instead to grant review in cases in which the justices want to resolve a conflict among the lower appeals courts, reverse existing precedent, or establish case law on issues of first impression.

Defining Reversal Differently. The reported reversal rates are based on liberal definition of reversal that includes cases in which the reviewing court affirmed the lower court but modified or “reformed” an element of the judgment entered by the trial court, or reversed in part and affirmed in part. If partial reversals and decisions “affirming the lower court’s judgment as reformed” are omitted from the computation, the rate of successful appeals falls below 10% for civil cases and below 4% for criminal cases. Statewide 6.6% of the civil cases were reversed and remanded, while in another 3.1% the court of appeals reversed the lower court and rendered judgment. For criminal cases the percentages were 2.9% and 0.3% for reverse & remand and reverse & render, respectively.

Are Some Appellate Courts More Likely to Reverse than Others? Yes. There are significant differences among the fourteen courts of appeals, and the odds of a successful appeal vary accordingly. With 4.9% the Dallas Court of Appeals had the lowest overall rate of reversals (9.5 % civil and 2.1% criminal cases) in FY 2006. The Texarkana Court had the highest (13.1%). The range is even wider when civil and criminal cases are considered separately. In civil appeals, the Amarillo Court reversed or altered the trial court’s judgment in 21.5% of the cases, more than twice as often as the Dallas Court of Appeals at the opposite end of the spectrum. With respect to criminal cases, the differences among the courts of appeals are even more striking. In Dallas, a mere 2.1% of criminal cases were reversed or reformed, whereas in Texarkana the rate exceeded 10%.

Source: Official Data from the Office of Court Administration
Texas Judicial System Annual Report Fiscal Year 2006

Monday, April 2, 2007

PFR Grant and Reversal Rate (Tex. 2006)

Texas Supreme Court Grant and Reversal Rates for Fiscal Year 2006, and Other Annual Statistics on Supreme Court Activity

[Also see --> article on more recent appellate reversal statistics]


Supreme Court Caseload. In Fiscal Year 2006, the Texas Supreme Court granted 108 petitions for review (PFRs) and disposed of 97. A total of 1,253 such petitions were filed or carried over from the previous year. 822 were disposed of and 431 remained pending on August 31, 2006. Harris County (Houston) and Dallas County (Dallas) contributed the largest shares of the case load. The Supreme Court also accepted and decided 30 mandamus petitions, with a total of 330 on the docket and 92 remaining at the end of the fiscal year.

Texas Supreme Court Jurisprudence by the Numbers. In Fiscal Year 2006, the Texas Supreme Court granted 108 petitions for review and disposed of 97. It accepted 119 new petitions for review of the merits, and denied or otherwise rejected 703. The court also granted mandamus relief in 24 cases and answered two certified questions from the U.S. Court of Appeals for the Fifth Circuit. Only one cause was decided on a motion for rehearing.

What Are The Odds of A Petition Being Granted? Given its large case load, the court is quite selective in deciding which cases it will hear and decide on the merits. The approximate acceptance rate was 14.5% for petitions for review (PFR) and less than half that (6%) for mandamus proceedings. Among the intermediate appellate courts, the 9th Court of Appeals in Beaumont had the highest PFR grant rate (26.1%) albeit based on small total of only 22 petitions, followed closely by the Waco Court of Appeals with 25.5%. The Sixth Court of Appeals (Texarkana) scored lowest with 4%, followed by the Seventh Court, sitting in Amarillo, with 5.1%. As for the major metropolitan areas of the State, the Supreme Court granted 9% of the 121 petitions from the Dallas Court of Appeals, which is one of the busiest courts of appeals in the state and the largest in size (13 members). Houston’s two intermediate appellate courts together accounted for 196 petitions for review (22% of the total), with an almost identical grant rate of 13.3% and 13.9% for the First and Fourteenth Court of Appeals, respectively.

Annual Opinion Output. The Justices of the court delivered 149 opinions in the 97 cases decided on the merits in FY 2006. 24 of these appeals were from the two Houston courts of appeals. A majority (60) were decided with unsigned per curiam opinions. There were 48 signed majority opinions, 12 concurrences, 21 dissenting opinions, and three opinions concurring in part and dissenting in part. With nine majority opinions, twelve per curiams, and four concurring and dissenting opinions each, Justice Scott Brister, who formerly was an appeals court judge in Houston, was the most productive member of the court. Justice Nathan Hecht, the most senior member of the court, ranked second with a total of 22 authored, followed closely by Chief Justice Wallace B. Jefferson, who delivered 19. Leaving aside Justice Jane N. Bland, a member of the First Court of Appeals, who wrote one opinion while sitting by assignment for a recused member of the high court, Justice Don Willett produced the lowest number of opinions in FY 2006 - a total of nine, including one dissent.

Patterns of Dissent and Disagreements over Reasoning and Rationale. Although all of the current court’s members are Republicans, they do not always see eye to eye on the important legal and policy issues they agree to examine and resolve for the entire state. Justice Harriet O’Neill, currently the only female member of the Jefferson Court, led with five dissents and wrote concurring opinions in two more cases. At the other end of the spectrum, Justice Paul W. Green did not dissent even once. Chief Justice Wallace B. Jefferson wrote one opinion concurring and dissenting in part. If failing to join the majority and writing to explain why is a fair measure of originality, Justice Scott A. Brister was the most independent jurist on the Jefferson Court with a total of eight separate opinions, evenly divided between concurrences and dissents. Justices Harriet O’Neill and J. Dale Wainwright, with a total of seven each, follow closely behind.

A Reversal-Happy High Court. The Supreme Court reversed the lower court - at least in part - in 71% of the cases. The true reversal rate is probably even higher because the reported reversal statistics do not include granted petitions that were decided concurrently without a separate opinion being issued. These granted causes account for approximately 10% of the total. The Court also conditionally granted mandamus relief 24 times out of a total of 238 petitions seeking such relief.

Will They Grant That Motions? Once the justices have handed down their decision, they rarely change their mind. Motions for rehearing have almost no chance of success. Out of a total of more than two hundred, the Court only granted three. By contrast, motions for extension of filing deadlines are routinely granted. The Court denied or dismissed only 22 of 470 such motions.

Disciplinary actions. The Texas Supreme Court also has rule-making authority and regulates the practice of law and the conduct of the state's attorneys. The Court disposed of all four disciplinary appeals and none remained pending at the end of the 2006 Fiscal Year.

Date source: Texas Judicial System Annual Report for FY 2006 Annual Reports for other years