Another Class Action Dismantled by Texas Supreme Court

CERTIFIED CLASS IN ACTION SEEKING REMEDY FOR OVERCHARGES FOR TELEPHONE SERVICE UNDONE

SWBT Co. v. Marketing on Hold, Inc,. No. 05-0748 (Tex. Feb. 19, 2010)(Majority opinion by Wainwright) (class action, class decertified in interlocutory appeal, standing)
[B]ecause the putative class representative failed to establish that it adequately represents the class, we reverse the judgment of the court of appeals and decertify the class.
SOUTHWESTERN BELL TELEPHONE COMPANY v. MARKETING ON HOLD, INC. D/B/A SOUTHWEST TARIFF ANALYST; from Cameron County; 13th district (13-03-00287-CV, 170 SW3d 814, 08-04-05) emergency motion for expedited decision dismissed as moot
motion to dismiss denied
motion for damages and sanctions denied
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Wainwright delivered the opinion of the Court, in which Justice Hecht, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Harriet O'Neill delivered a dissenting opinion in SW Bell Telephone Co. v. Marketing on Hold (Tex. 2010) in which Chief Justice Jefferson and Justice Medina joined.
Considering the absence of any realistic potential for conflict or antagonism between STA and the class, together with STA’s demonstrated superior expertise in the subject matter of the litigation, I would hold that STA has satisfied the adequacy requirement and affirm certification of the class. Because the Court concludes otherwise, I respectfully dissent.
(Justice Guzman not sitting)

OTHER OPINIONS RELEASED TODAY:

City of Waco v. Kelley, No. 07-0485 (Tex. Feb. 19, 2010)(Johnson)(municipal civil service disciplinary proceeding, judicial review of hearing examiner's decision, jurisdiction issue)
CITY OF WACO, TEXAS v. LARRY KELLEY; from McLennan County;
10th district (10-03-00214-CV, 226 SW3d 672, 05-02-07)
The Court reverses the court of appeals' judgment and remands the case to the trial court
Justice Phil Johnson delivered the opinion of the Court.

City of Dallas v. Abbott, AG, No. 07-0931 (Tex. Feb. 19, 2010)(Majority opinion by O'Neill) (Public Information Act (PIA)) (exceptions from mandatory disclosure)
CITY OF DALLAS v. GREG ABBOTT, ATTORNEY GENERAL OF TEXAS; from Travis County;
7th district (07-06-00161-CV, 279 SW3d 806, 08-13-07)
The Court reverses the court of appeals' judgment and renders judgment.
Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Medina, Justice Green, and Justice Guzman joined.
Justice Dale Wainwright delivered a dissenting opinion in City of Dallas v. Abbott,
in which Justice Johnson joined.
(Justice Willett not sitting)

SUPREMES TELL 8o-year OLD FRAIL LADY TO GO LITIGATE ELSEWHERE
In re ADM Investor Services, Inc., No. 08-0570 (Tex. Feb. 19, 2010)(Opinion by Green) (forum selection clause enforced by mandamus) (poor health of elderly plaintiff rejected as reason for keeping case in Texas)
IN RE ADM INVESTOR SERVICES, INC.; from Rains County;
12th district (12-08-00125-CV, 257 SW3d 817, 06-30-08)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.
Justice Green delivered the opinion of the Court.
Justice Don R. Willett delivered a concurring opinion in In re ADM Investor Services, Inc.

Opinions Handed Down February 12, 2010

Galveston I.S.D. vs. Jaco, No. 09-0195 (Tex. Feb. 12, 2010)(per curiam)
(WBA case remanded to the court of appeals to determine whether plaintiff has alleged a violation under the Texas Whistleblower Act under the court's new holding in State v. Lueck, in which the Court elevated the sufficiency of the facts pleaded in support of each element of the claim to a jurisdictional matter)
GALVESTON INDEPENDENT SCHOOL DISTRICT v. BRENT JACO; from Galveston County;
14th district (14-08-00271-CV, 278 SW3d 477, 01-20-09)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion
(Justice Guzman not sitting) [she wrote the opinion in the court of appeals below]

In the Matter of R.D., No. 09-0343 (Tex. Feb. 12, 2010)(per curiam)(juvenile delinquency proceedings, error preservation for appellate review by means of motion for new trial)
The Texas Supreme Court concludes that [the juvenile's] general challenge to the sufficiency of the evidence to support the jury's delinquency finding met Rule 324's requirement for preserving his challenge to the jury's rejection of his affirmative defense.
IN THE MATTER OF R.D., A JUVENILE; from Bexar County; 8th district (08-07-00100-CV, ___ SW3d ___, 03-12-09)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion

ORDERS ON PETITIONS FOR REVIEW: THE FOLLOWING PETITION FOR REVIEW IS ABATED:
Gallagher Headquarters Ranch Development, Ltd., No. 08-0773 (Tex. Feb. 12, 2010)(per curiam)(petition abated, findings of fact requested from trial court, scope of release pursuant to settlement at issue)
GALLAGHER HEADQUARTERS RANCH DEVELOPMENT, LTD., CHRIS HILL AND JULIE HOOPER v. CITY OF SAN ANTONIO AND CITY PUBLIC SERVICE; from Bexar County; 4th district (04-07-00325-CV, 269 SW3d 628, 07-23-08) abatement order issued
The petition is abated and remanded to the trial court for findings of fact. The trial court shall submit its findings to this Court no later than May 3, 2010. The parties may, within thirty days after the trial court's findings are submitted, provide a supplementary brief to this Court.
Per Curiam Opinion (Justice Hecht not sitting)

Texas Supreme Court Justices Snub Newest Member in Per Curiam Opinion

Having jurisdictionalized the issue of pleading sufficiency with respect to facts supporting the elements of a Whistleblower claim in State v. Lueck last year -- thus allowing for dismissal by jurisdictional plea prior to discovery, summary judgment motions, not to mention trial on the merits -- the Supremes send back another whistleblower case to the lower court, so as to have their newly crafted precedent applied.

Rookie Supreme Court Justice Eva Guzman gets snubbed by her elder peers. She authored the opinion for the court below that Court reverses today.

Galveston ISD v. Jaco (Tex. 2010),
No. 09-0195 (Tex. Feb. 12, 2010)(per curiam) (whistle-blower case remanded to the court of appeals to determine whether plaintiff has alleged a violation under the Texas Whistleblower Act under the court's holding in Lueck, which made sufficiency of the facts pleaded in support statutory cause of action a jurisdictional issue)
GALVESTON INDEPENDENT SCHOOL DISTRICT v. BRENT JACO; from Galveston County;
14th district (14-08-00271-CV, 278 SW3d 477, 01-20-09)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion
(Justice Eva M. Guzman not sitting) (author of the opinion in the court below)

PER CURIAM OPINION

Justice Guzman did not participate in the decision.

Brent Jaco sued the Galveston Independent School District under the Texas Whistleblower Act, alleging that he was demoted from his position as Director of Athletics and Extracurricular Activities for reporting a Ball High School football player’s violations of the University Interscholastic League’s eligibility rules to UIL officials. In a plea to the jurisdiction, the District asserted that Jaco’s claims were barred by governmental immunity and the trial court lacked subject matter jurisdiction because Jaco failed to make a good-faith report of a violation of law to an appropriate law-enforcement authority, as required by the Texas Whistleblower Act. See Tex. Gov’t Code § 554.002(a).

The trial court denied the plea to the jurisdiction and the District appealed. See Tex. Civ. Prac. & Rem. Code § 51.014(a)(8) (permitting appeal from an interlocutory order that denies a plea to the jurisdiction by a governmental unit). The court of appeals affirmed, holding that the elements of section 554.002(a) of the Government Code are not jurisdictional. 278 S.W.3d 477, 482–83 (Tex. App.—Houston [14th Dist.] 2009).

However, in State v. Lueck, 290 S.W.3d 876, 883 (Tex. 2009), we held that “the elements of section 554.002(a) can be considered to determine both jurisdiction and liability.” Accordingly, whether the reporting of a violation of UIL rules and regulations to the UIL is a good-faith report of a violation of law to an appropriate law-enforcement authority is a jurisdictional question.

Therefore, without hearing oral argument, Tex. R. App. P. 59.1, and for the reasons explained in Lueck, we reverse and remand to the court of appeals to determine whether, under the analysis set forth in Lueck, Jaco has alleged a violation under the Whistleblower Act. See Tex. Gov’t Code § 554.002(a).

JUSTICE EVA HAD OPINED OTHERWISE: "Because the District failed to present arguments that, if true, would deprive the trial court of subject-matter jurisdiction, we affirm [ the trial court's denial of the school district's plea to the jurisdiction];" but was not allowed to participate in supreme-level reconsideration of that holding.

Nor was Guzman's court alone in declining to treat the elements as non-jurisdictional, as she explains in the opinion of the 14th court panel, which also included supreme court candidate Jeff Brown:
Although the Fourth,[5] Seventh,[6] and Tenth[7] Courts of Appeals have treated the elements of a whistleblower claim as jurisdictional,[8] these cases predate Park and were decided without discussion of whether the challenged elements concern jurisdiction or relate solely to liability. More recent opinions from the First,[9] Third,[10] Fifth,[11] and Thirteenth[12] Courts of Appeals suggest that the elements of a whistleblower cause of action are not jurisdictional. We agree with the latter opinions in concluding that, under the terms of the Act, waiver of immunity from suit is not dependent upon the merits of the claim. See Univ. of Tex. Sw. Med. Ctr. at Dallas v. Gentilello, 260 S.W.3d 221, 226 (Tex.App.-Dallas 2008, pet. filed); Tex. Bd. 483 of Pardons & Paroles v. Feinblatt, 82 S.W.3d 513, 520-21 (Tex.App.-Austin 2002, pet. denied) (good faith of report to appropriate agency affects the merits of the case but does not affect jurisdiction); see also Park, 246 S.W.3d at 613 n. 2 (holding that trial court had jurisdiction, although claim failed on the merits).
The Supremes put an end to that jurisprudential debate in 2009.

RELATED CASE: UT Southwestern Med. Ctr. at Dallas v. Gentillello, M.D., No. 08-0696 (Tex. Dec. 18, 2009)(per curiam) (Whistleblower case remanded in light of decision, holding in State vs. Lueck)
RELATED POST: Whistleblowers Beware: State of Texas and TxDOT vs. Lueck (Tex 2009)
TAGS: public employment law, whistleblowing, sovereign immunity, statutory waiver of governmental immunity, Texas Whistleblower Act, plea to the jurisdiction, motion to dismiss for lack of subject-matter jurisdiction, pleading sufficiency, jurisdictional allegations

Another Criminal Appeal in the Texas Supreme Court

Well, not quite. Crimes by juveniles fall under the Family Code and are treated as civil, rather than criminal cases. Which is the reason appeals from delinquency cases occasionally end up before the Texas Supreme Court, rather than in the Court of Criminal Appeals. Application of the civil rules of procedure in juvenile delinquency cases can actually make a big difference, as illustrated by the case decided today, in which the sufficiency of error preservation by motion for new trial was the issue.

In the Matter of R.D., (Tex. 2010)
No. 09-0343 (Tex. Feb. 12, 2010)(per curiam)(juvenile proceedings, civil rules applied to motion for new trial, error preservation for appellate review)
Texas Supreme Court concludes that [the juvenile's] general challenge to the sufficiency of the
evidence to support the jury's delinquency finding met Rule 324's requirement for preserving his
challenge to the jury's rejection of his affirmative defense.

FROM THE UNSIGNED OPINION [one of three released February 12, 2010]:

In this case a jury found that R.D., a juvenile, engaged in delinquent conduct of aggravated robbery. R.D. filed a motion for new trial generally challenging the sufficiency of the evidence to support the jury’s verdict, and complaining specifically of the deadly-weapon finding supporting the “aggravated” status of the offense. R.D.’s motion did not specifically challenge the evidentiary basis for the jury’s rejection of his affirmative defense of duress, causing the court of appeals to conclude that the issue was waived on appeal. ___ S.W.3d ___, ___. Because the jury’s delinquency finding subsumed its rejection of R.D.’s affirmative defense, however, we hold that R.D.’s new trial motion was sufficient to preserve error. Accordingly, we grant the petition and, without hearing oral argument, remand the case to the court of appeals for further review.

* * *

In a civil case, in order to challenge on appeal the factual sufficiency of the evidence to support a jury finding, the point must be raised in a motion for new trial. Tex. R. Civ. P. 324(b)(2). In In re M.R., 858 S.W.2d 365, 366 (Tex. 1993) (per curiam opinion denying application for writ of error), we stated that, unlike the rule in criminal cases, in juvenile proceedings a motion for new trial is necessary to preserve a factual sufficiency challenge.2 Unlike in In re M.R., however, R.D. did file a motion for new trial. The question is whether that motion was sufficient to encompass R.D.’s complaint on appeal that the jury’s rejection of his affirmative defense had no evidentiary support. We conclude that it was.

IN THE MATTER OF R.D., A JUVENILE; from Bexar County; 8th district (08-07-00100-CV, ___ SW3d ___, 03-12-09)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that
court. Per Curiam Opinion

TAGS: preservation of error for appellate review, motion for new trial after jury trial, sufficiency point of error, juvenile cases, crimes by minors, delinquency adjudication