Texas Appellate Lawyer & Attorney : D. Todd Smith Law Firm : Appeals, Sanctions, Summary Judgment : Austin, Texas

The Texas Supreme Court issued four decisions with this week's regular orders.

In City of Waco v. Lopez (No. 06‑0089), a retaliatory discharge action in which the City filed a plea to the jurisdiction, the Court held that  the Texas Commission on Human Rights Act  provided the exclusive state statutory remedy.  The Court reversed the court of appeals’ judgment and dismissed the case because the only pleaded theory was not actionable and because plaintiff had not satisfied the administrative prerequisites for maintaining a retaliation claim.

In David J. Sacks, P.C. v. Haden (07‑0472) (per curiam), the Court concluded that an unambiguous written attorney's fee agreement specifying only hourly rates could not be modified by any oral agreement to cap the total fees to be charged.  Because the court of appeals held that evidence of an oral agreement raised a fact issue on whether the parties had a meeting of the minds, the supreme court reversed and reinstated the trial court's judgment awarding damages to the law firm for breach of contract.

In a related case, David J. Sacks, P.C. v. Haden (07‑0487) (per curiam), the court of appeals reversed a turnover order in the law firm's favor after reversing the trial court's money judgment.  Because of the result reached in No. 07-0472, the supreme court reversed and remanded so the court of appeals could consider whether the turnover order was proper under Section 31.002(e) of the Civil Practice and Remedies Code. 

In Sells v. Drott (07‑0848) (per curiam), the Court reversed a default judgment granted after the trial court struck facially valid answers filed on defendant's behalf without notice to defendant that the answers' validity was in dispute.

This set of orders marks the beginning of "summer recess."  A few opinions and rulings on petitions may trickle out over the next several weeks, but the Court has no conferences scheduled until mid-August.

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The Texas Supreme Court issued four new decisions and one substituted opinion with today's regular orders.

In General Electric Co. v. Moritz (No. 0871), the Court reaffirmed that a landowner owes an independent contractor’s employees no duty to warn of obvious hazards they already know about, rejecting the plaintiff's argument that his knowledge of the hazard was simply a factor for the jury to consider in assessing comparative negligence.  Justice Green (joined by Chief Justice Jefferson and Justice Johnson) dissented.

In Frymire Engineering Co. v. Jomar International, Ltd. (No. 06-0755), the Court held that the subrogation doctrine applies to a subcontractor seeking to recover contractual payments from alleged third-party tortfeasors, provided the doctrine's traditional requirements are satisfied. 

In Leland v. Brandal (No. 06-1028), a health-care liability case, the Court determined that a plaintiff may receive a 30-day extension to cure a deficient expert report after a ruling that the report is adequate has been reversed on appeal.  Justice Brister dissented. 

In Kao Holdings, L.P. v. Young (No. 07-0197) (per curiam), a restricted appeal, the Court reversed a default judgment granted against an individual who was not named as party to the suit, modified the judgment, and affirmed as modified.

In Evanston Insurance Co. v. ATOFINA Petrochemicals, Inc. (No. 03-0647), the Court denied the motions for rehearing, withdrew its February 15, 2008 opinion and judgment (which were themselves issued on rehearing), and issued a substitute opinion reaching mostly the same result.  Rather than render a complete judgment, however, the Court remanded the case to the trial court for further proceedings on some of the insured's claims for attorney's fees and its prejudgment interest claim.

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The Texas Supreme Court released four opinions with this week's orders:

In PAJ, Inc. v. Hanover Insurance Co. (No. 05-0849), a five-member majority (Justice O'Neill, joined by Chief Justice Jefferson and Justices Brister, Medina, and Green) held that an insured's failure to timely notify its insurer of a claim does not defeat coverage if the delay caused the insurer no prejudice.  In doing so, the Court treated the policy's prompt-notice requirement as a covenant, rather than a condition precedent.  Justice Willett dissented (joined by Justices Hecht, Wainwright and Johnson) and would have reached the opposite conclusion.

In Houser v. McElveen (No. 06-0504) (per curiam), the Court determined that an inmate who deposited his notice of appeal in the prison mail 35 days after the trial court signed a dismissal order was entitled to an extension of time.  Thus, the court of appeals erred by dismissing the inmate's appeal.

In Levine v. Shackelford, Melton & McKinley, L.L.P. (No. 06-0553) (per curiam) (opinion on denial of rehearing from petition for review), the Court emphasized that "conscious indifference" is not the same as negligence when applying the test for setting aside a no-answer default judgment.

In AIG Aviation (Texas), Inc. v. Holt Helicopters (No. 06-0484) (dissent from denial of rehearing of petition for review) Justice Willett indicated that he would have granted review to overrule Puckett v. U.S. Fire Insurance Co., 678 S.W.2d 936 (Tex. 1984), distinguish it, or "explain forthrightly why we insist on applying a hazy, public policy-based interpretive standard to aviation insurance contracts . . . ."

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In Romano v. Newton, the Third Court of Appeals has affirmed a post-answer default judgment, conditioned on a remittitur of all but $29,544.47 of the original $176,150.68 judgment amount.  The appellate court held that the trial court acted within its discretion by overruling the defendant's equitable motion for new trial, but that the plaintiff presented no evidence supporting the damages and attorney's fees awarded above the sum sought on a sworn account.  On its own motion, the court of appeals suggested a remittitur for the difference.

Update:  On December 7, 2007, the court of appeals issued a supplemental opinion noting that the plaintiff did not file a remittitur. Thus, in accordance with its prior opinion, the Court reversed the district court's judgment and remanded the case for a new trial on unliquidated damages and attorney's fees.

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Today's Texas Supreme Court orders show that last week's prediction of at least four opinions wasn't totally off base.

In Norris v. Thomas, on a certified question from the Fifth Circuit, the Court determined that a houseboat did not qualify for the Texas Constitution's homestead exemption because it is a moveable chattel that does not rest "on the land," as the exemption requires.  Justice O'Neill dissented, along with Justices Wainwright, Brister, and Medina.

In Wachovia Bank v. Gilliam, a restricted appeal, the Court vacated a default judgment because the court of appeals erroneously presumed that substituted service complied with statutes requiring suit papers to be forwarded to the defendant's "home office" or "principal office."

In State Farm Life Insurance Co. v. Martinez, the Court held that statutory penalties for failing to timely pay policy proceeds were properly imposed before the insurer sought interpleader, but were improper after that.  The Court further held that allowing the beneficiary to recover prejudgment interest as well as interest accrued while the proceeds were in the trial court's registry would be an imermissible double recovery.

In Jack in the Box, Inc. v. Skiles, the Court held the an employer had no duty to warn its employee, a truck driver injured when he fell into a trailer after using a ladder to climb over an inoperable lift gate, because the employee had been trained to handle situations when the lift would not operate and because the danger was common and obvious.

In City of San Antonio v. TPLP Office Park Properties, the Court held that the City's decision to close a driveway from a residential street to an office development accessible from other points was a valid exercise of its police powers, that the City could not be estopped from closing the driveway (which it had previously approved), and that that the City did not "take" from the development by diverting traffic from other driveways into the office park.

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