Supreme Court of Texas, No. 18-0879 (October 25, 2019)
Per Curiam (opinion available here)
The Corpus Christi Court of Appeals reversed, however, finding that the trial court committed reversible error by allowing Judge Isgur to testify. The appellate court relied heavily on the Texas Supreme Court’s precedent in Joachim v. Chambers, in which the Court disapproved of the admission of expert testimony by a judge in a legal malpractice case. The Supreme Court disagreed with this application of Joachim. It distinguished the Cantu situation from that present in Joachim, because Judge Isgur was testifying as a fact witness regarding conduct he personally observed, as opposed to the judge in Joachim who had no involvement in the underlying trial and was testifying as a retained expert. The Court noted that nothing in the case law or the Texas Code of Judicial Conduct prevents a judge from testifying as a fact witness in a case. And disallowing such testimony in disciplinary proceedings would “place judge-initiated grievances at an artificial disadvantage relative to other grievances in which the complainant may freely testify.” Judges have an ethical responsibility to report instances of attorney misconduct, and it would not make sense to then prevent the complaining judge from testifying at the disciplinary proceeding. So the Court reversed the Court of Appeals decision and remanded the case for consideration of Cantu’s other arguments.
Dallas Court of Appeals, No. 05-18-00239-CV (October 2, 2019)
Justices Whitehill, Pedersen (Opinion linked here), and Partida-Kipness (Dissent linked here)
Joe Stegall was the CFO for Royse City, and participated in the city’s medical-benefits plan provided through the TML Risk Pool. When Mr. Stegall was diagnosed with liver cancer, TML refused to authorize the use of a specific drug prescribed by his oncologist, and threatened to terminate coverage entirely if he used the drug without its authorization. Although TML later reversed its position, Mr. Stegall died several weeks later. His widow sued TML for “wrongful denial of medical benefits and additional acts of interference with the decedent’s access to prescribed chemotherapy.” TML filed a plea to the jurisdiction asserting governmental immunity from suit, which the trial court granted, dismissing the case. The Dallas Court of Appeals affirmed.
Writing for the Court, Justice Pedersen described the case as “an emotional and tragic scenario,” but held Texas law granted TML immunity from suit. The Court first determined TML was a distinct governmental entity, “an intergovernmental self-insurance risk pool that operates under the Interlocal Cooperation Act,” Government Code chapter 791. It then rejected the argument that TML’s “claims-adjusting” involved “proprietary,” not “governmental” functions, which would have meant immunity did not attach. Municipalities are immune from suit when exercising their governmental functions, but not when the actions are proprietary, i.e., discretionary actions that can be, and often are, performed by private parties. The Court held, however, the distinction did not apply to TML, which, like other political subdivisions created by the legislature for public purposes, performs only governmental functions.
In dissent, Justice Partida-Kipness argued the governmental-proprietary distinction applied to TML, and that although creating and participating in the risk pool was a governmental function, claims adjusting and coverage decisions were proprietary functions not subject to immunity. She criticized the majority opinion as reaching “an absurd result—the removal of logic and humanity from application of the law.”
Dallas Court of Appeals, No. 05-19-01126-CV (September 19, 2019)
Justices Whitehill (Opinion available here), Partida-Kipness, and Pedersen, III
Herbert sought mandamus relief, which the Dallas Court granted. It held that, although trial courts generally have the discretion to schedule hearings within a “reasonable time,” the trial court must set a TCPA motion to dismiss for hearing within the applicable statutory deadline if the movant makes reasonable efforts to obtain a timely hearing. If the movant does not receive a timely hearing, he is deprived of his rights under the TCPA. And because a failure to hold a hearing is not subject to interlocutory appeal, the movant lacks an adequate remedy on appeal. So on September 19, the Court ordered the trial court to conduct a hearing on the TCPA motion “no later than September 20.”
Dallas Court of Appeals, No. 05-18-01010--CV (September 12, 2019)
Justices Myers (Opinion available here), Osborne, and Nowell
The Dallas Court of Appeals held that a Texas limited partnership receives notice when it is served on its registered agent or a general partner. Columbia’s registered agent was CT Corporation System. The Court held that, even though the Medical Center of Plano at 3901 W. 15th Street, Plano, Texas, 75075 “was the physical place at which the treatment occurred,” “it was not the health care provider Thornton sued.” So mailing notice to “Medical Center of Plano” at the hospital’s physical address did not provide notice to Columbia, and the statute of limitations was not tolled. Summary judgment in favor of Columbia was affirmed.
Dallas Court of Appeals, No. 05-18-01414 (August 27, 2019)
Justices Bridges (Dissent, linked here), Brown, and Nowell (Opinion, linked here); Dissent from Denial of En Banc Rehearing by J. Whitehill (linked here)
In a split decision, the Dallas Court of Appeals concluded that because the text messages did not address Mahana’s job performance, they were not “communications related to the provision of medical services by a health care professional.” Therefore, the text messages were not an exercise of the employer’s right to free speech, which the TCPA defines to include communications on an “issue related to health or safety,” and the TCPA did not apply. Justice Bridges dissented, arguing that any drug use that could impair Mahana’s ability to do her job had a sufficient relationship to issues of health and safety, such that the TCPA applied to the text messages.
Notably, at the same time the majority opinion and dissent issued, Justice Whitehill also issued an opinion dissenting from the denial of reconsideration en banc, arguing that the majority opinion conflicted with the Court’s own precedent. Justice Whitehill’s dissent sheds light on some of the Court’s behind-the-scenes practices:
How did the opinion and the dissent from the denial of en banc reconsideration issue on the same day? Did U.S. Anesthesia Partners request en banc reconsideration before the Court issued its opinion?
No, U.S. Anesthesia Partners never moved for reconsideration en banc. TRAP 49.7 allows a “majority of the en banc court may…, with or without a motion, [to] order en banc reconsideration of a panel’s decision.” And the Court’s own Internal Operating Procedures note that it will “on occasion” sit en banc without a request from the parties. So, Justice Whitehill requested en banc consideration sua sponte.
But doesn’t the en banc process start after the opinion issues?
No, TRAP 49.7 allows en banc consideration to occur at any time the Court has plenary power. In fact, a Court can order the case to be heard en banc in the first instance. See TRAP 41.1(a), 41.2(a). For example, the Court might order en banc consideration at the outset when an appeal directly challenges binding precedent from the Court, which a panel cannot overrule.
I still don’t understand why the vote on en banc happened before the Court issued an opinion in the case.
Although we can’t know the precise reasons why Justice Whitehill requested en banc review when he did, a few considerations appear to be at play. First, the Court has a practice, which some Justices have mentioned but which does not appear to be formally memorialized for the public, of circulating opinions in certain cases to the entire Court before an opinion issues. This will occur, among other times, when there will be a dissent in a case heard by a three-justice panel, as occurred here. Second, the Court has an internal goal of issuing opinions in all cases that have been argued (or submitted without argument) before the start of its new fiscal year on September 1. The opinions here issued on August 27. Both of these factors could have led to the decision to address en banc review at the same time the panel was issuing its opinions.
Dallas Court of Appeals, No. 05-17-00927-CV (August 19, 2019)
Justices Bridges, Brown, and Whitehill (Opinion linked here)
Dallas Court of Appeals, No. 05-18-00206-CV (August 14, 2019)
Justices Brown, Schenck, and Pedersen, III (Opinion, linked here)
One door closed, Cooke tried another. In an amended petition he recharacterized all his claims as asserted both individually and derivatively on behalf of the partnerships. But he waited until 2014 to do that. When his ex-partners argued the newly asserted derivative claims were barred by limitations, Cooke contended (1) the derivative claims clearly arose from the same facts as the substantially identical claims he had asserted on an individual basis back in 2006, and (2) the derivative claims therefore “related back” to that original filing under Tex. Civ. Prac. & Rem. Code § 16.068. Wrong again, the Court concluded. Remember, Cooke lacked standing to pursue those claims as originally filed. “For that reason, the trial court never obtained jurisdiction over his [original] claims.” Consequently, there was nothing to which the amended, derivative claims could relate back. And so they were barred by limitations.
Dallas Court of Appeals, No. 05-18-01227-CV (August 5, 2019)
Justices Whitehill (Opinion, linked here), Partida-Kipness (Dissent, linked here), and Pedersen
The Court considered this issue in an appeal of the trial court’s dismissal under Rule 91a. In previous lengthy litigation, Greg Gutman had obtained a judgment against one defendant, Real Estate Arbitrage Partners, LLC (“Arbitrage”) but not against the other defendant, Richard Wayne Wells. After the judgment was affirmed, Arbitrage paid the judgment, and Gutman delivered to Arbitrage a fully executed release of judgment. But Defendants wanted more. According to the petition, they repeatedly demanded an executed release of judgment against Wells, and harassed and threatened Gutman for his refusal to do so.
The majority held there was a real and substantial dispute under the Declaratory Judgments Act: “This sets out a controversy—whether Gutman must provide the requested release—that is real and not hypothetical.” And a declaratory judgment resolving that issue “will serve a useful purpose of terminating the parties’ controversy and ending the harassment and threats.” The dismissal was therefore reversed.
Justice Partida-Kipness dissented. Gutman did not seek construction of a contract or any other written instrument. Justice Partida-Kipness construed Gutman’s petition as asserting a claim for civil harassment, which sounds in tort, and does not fall within the parameters of the Declaratory Judgments Act. She disagreed “with the majority’s expansion of the statute,” and would have affirmed the trial court’s dismissal.
So, this case is precedent that a dec action can be used to resolve all sorts of disputes, not just those involving contracts, deeds, wills, and other writings.
Dallas Court of Appeals, No. 05-18-00205-CV (July 23, 2019)
Justices Partida-Kipness (Opinion, linked here), Pedersen, III, and Carlyle
Williamson, a Honey Grove police officer, was driving in or near Trenton, Texas (another Fannin County town) while off duty. In the parking lot of a “liquor store attached to a gun shop,” Williamson observed suspicious activity—including a Trenton police car with its lights activated, blocked in by other cars, with no one in sight. Because he “was concerned that a crime was being committed in the parking lot,” Williamson quickly switched on the red and blue emergency lights on his squad car and made a U-turn to go back and investigate and help the missing Trenton officer, if needed. Unfortunately, his abrupt U-turn led to an accident with other vehicles traveling on that same road. The driver and owner of one of those vehicles sued the City of Honey Grove, arguing the accident was caused by the negligent acts of Williamson while operating a motor vehicle within the scope of his employment—allegations that, if true, were sufficient to bring the claims within a statutory waiver of the city’s governmental immunity under the Texas Tort Claims Act, specifically, TCPRC § 101.021(1)(A). Honey Grove filed a plea to jurisdiction, arguing that Williamson was not acting within the scope of his employment, because he was off duty, was not being paid, was outside his jurisdiction, and had not been acting pursuant to an assignment from or under the supervision of the Honey Grove police department. The trial court granted the plea to jurisdiction and dismissed Honey Grove from the case.
The Dallas Court of Appeals reversed. Applying the freshly minted reasoning of the Supreme Court in Garza, the Court ruled that because Williamson’s actions were “triggered by reasonable suspicions” of criminal activity and potential safety concerns he was bound to address as a peace officer, he was acting within the scope of his employment. Therefore, the allegations against Honey Grove fell within the statutory waiver of governmental immunity.
1 The website of the City of Honey Grove reports how the town supposedly got its name: “According to legend, in 1836 as Davy Crockett was traveling to join the Texas Army at San Antonio, he camped in a grove just west of the present town square, on the bank of Honey Grove Creek. In letters he wrote to Tennessee, he told of the ideal place where he had camped, the ‘honey grove.’ It was so named due to the abundance of honey in the hollow trees.”↩
Dallas Court of Appeals, No. 05-19-00015-CV (July 9, 2019)
Justices Brown, Schenck (Opinion, linked here), and Reichek
As a threshold matter, the appeals court held for the first time that mandamus review is available when a special appearance is denied in a case filed under the Family Code—joining other Texas appeals courts in that stance. Absent such review, the Court explained, “jurisdictional and other like issues … would be rendered effectively meaningless.” Of course, TCPRC 51.014(a)(7) authorizes interlocutory appeal of the grant or denial of a special appearance in a civil case, but it expressly carves Family Code cases out of that authorization, creating the need for mandamus review here.
On the merits, the Court observed that, to establish domicile, Morales had to demonstrate both an objective element and a subjective element: physical presence in Texas for the statutory period, and the intent to make Texas her principal place of residence. Morales’s case foundered on the subjective element of intent, because at present she is precluded by law from relocating permanently to Texas. To obtain her B1/B2 visa, Morales was required to represent to the State Department (1) that she was entering the United States temporarily, (2) that she planned to remain only for a specific period, and (3) that she maintained a residence and other ties outside the United States that would ensure her departure. So, the Court explained, “it is precisely Morales’s representation that Texas is not the place she intends to make her permanent home that explains her presence” in Texas. And it defeated her attempt to pursue a divorce here.
The Dallas Court’s holding, rejecting domiciliary status on the basis of Morales’s temporary visa and the representations she made to secure it, sets up an apparent conflict with the decision of the Austin Court of Appeals in Palau v. Sanchez—a conflict the Dallas Court acknowledged. So, there may yet be another chapter in this story.