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

The Texas Supreme Court issued four opinions with today's orders.

In National Plan Administrators, Inc. v. National Health Insurance Co. (No. 05-0006), the Court held that a third-party administrator did not owe a general fiduciary duty to an insurer in light of the parties' agreement and certain provisions in the Insurance Code.  The Court therefore reversed the court of appeals' judgment affirming a monetary awardand rendered judgment that the insurer take nothing.

In Texas Parks & Wildlife Department v. E.E. Lowrey Realty, Ltd. (No. 05-0157) (per curiam), the Court applied its recent decision in Texas A&M University System v. Koseoglu, 233 S.W.3d 835 (Tex. 2007) and held that Government Code § 51.014(a)(8) provided the court of appeals with jurisdiction to consider the appeal of Department employees named as codefendants in the suit.  Reversing the court of appeals' judgment, the Court dismissed the plaintiff's claims against the employees and the Department after concluding that they were incurably defective and therefore should not be remanded.

In A.G. Edwards & Sons Inc. v. Beyer (No. 05-0580), the Court rejected the contention that Probate Code § 439(a) barred the plaintiff's breach of contract claim against A.G. Edwards and affirmed the court of appeals' judgment affirming a $791,200 jury verdict.  However, the Court reversed and remanded for a new trial on attorney's fees because the plaintiff failed to segregate fees between her breach of contract and tort causes of action.

In Lamesa Independent School District v. Booe (No. 05-0959) (per curiam), the Court reiterated its holding in Satterfield & Pontikes Construction, Inc. v. Irving Independent School District, 197 S.W.3d 390 (Tex. 2006) that Education Code § 11.151(a) is not a clear and ambiguous waiver of sovereign immunity.  Because the court of appeals determined otherwise, the supreme court reversed and remanded the case to the court of appeals to consider issues it did not reach.

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After a very busy couple of weeks, the Texas Supreme Court released one opinion with today's orders.  In Texas A&M University System v. Koseoglu, the Court held that a plaintiff who, due to pleading defects, loses a plea to the jurisdiction based on sovereign immunity is not entitled to a remand when amending the pleading could not cure the defects.  The Court also determined that Civil Practice and Remedies Code § 51.014(a)(8) vests appellate courts with jurisdiction to decide a government official's appeal from the denial of a plea to the jurisdiction based on immunity.

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The Texas Supreme Court ended its summer recess with a bang by issuing seven opinions today.

In In re H&R Block Financial Advisors, Inc., the per curiam Court conditionally granted mandamus relief from a trial court's order refusing to stay the plaintiffs' lawsuit in light of an arbitration clause.  The Court rejected the plaintiffs' attempts to avoid arbitration with their investment advisor and his firm over Enron-related losses because the firm had changed its name and because the advisor did not sign the investment agreements in his personal capacity.

In In re Merrill Lynch Trust Co., the Court conditionally granted mandamus relief and compelled arbitration against employees of the entity with whom plaintiffs agreed to arbitrate, but not affiliates of that entity.  With respect to the employee, the Court reasoned that the substance of plaintiffs' lawsuit was against the signatory, even though it was not named as a party, and that the signatory would be liable for the employee's torts.  Regarding the affiliates, the Court rejected "an estoppel theory based on substantially interdependent and concerted misconduct" as a basis for imposing an obligation to arbitrate upon a nonsignatory, even though the case was governed by the Federal Arbitration Act and the Fifth Circuit has recognized such a theory.  Justice Hecht (joined by Justice Medina and in part by Justice O'Neill) and Justice Johnson (joined by Justice Wainwright) each issued opinions concurring and dissenting.

In Energy Service Co. v. Superior Snubbing Services, Inc., the Court held that a Worker's Compensation-subscribing employer's agreement to indemnify a person and that person's contractors was an agreement with the contractors for purposes of the Worker's Compensation Act, as amended in 1989.  Justice Johnson (joined by Justices Wainwright, Green, and Willet) dissented.

In Fort Worth Independent School District v. Service Employment Redevelopment, the per curiam Court continued the trend of remanding breach-of-contract cases against governmental entities to allow plaintiffs to argue that the legislature waived sovereign immunity under new Sections 271.151-.160 of the Local Government Code.

In Gaines v. Kelly, a no-evidence summary judgment case, the Court held that the borrower/plaintiff presented no evidence that a mortgage broker had apparent authority to bind a lender and therefore rendered judgment that the plaintiff take nothing on the borrower's claim against the lender based on the mortgage broker's alleged misrepresentations.

In In re Kaplan Higher Education Corp., the per curiam Court conditionally granted mandamus relief from a trial court's order refusing to compel arbitration under an agreement between a vocational college and 45 of its students, even though the students had dropped their direct claims against the college and were asserting claims against only the president and admissions director, because the substance of the action was fraudulent inducement and because the college would have been liable for the judgment under the Education Code and common law.

The following statement from Elledge v. Friberg-Cooper Water Supply Corp. (per curiam) says it all:  "We reject the court of appeals' 'obiter dictum' label.  Our statements that the two-year statute [of limitations, rather than the four-year statute] applies to unjust enrichment claims, though not essential to the outcomes in HECI [Exploration Co. v. Neel, 982 S.W.2d 881 (Tex. 1998)] and Wagner & Brown, [Ltd. v. Horwood, 58 S.W.3d 732 (Tex. 2001)], should have been followed."

Ouch!

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In Texas A&M University v. Bading, a case stemming from the 1999 Aggie bonfire disaster, the Waco Court of Appeals has reversed the trial court's denial of the University's plea to the jurisdiction based on sovereign immunity.  The appellees were defendants in wrongful death and personal injury actions who brought various claims against the University for(1) contribution and indemnity, (2) proportionate responsibility findings under Chapter 33 of the Civil Practice and Remedies Code, and (3) breach of contract.  Finding no statute or legislative resolution waiving the state's immunity, the appellate court rendered judgment dismissing these claims.

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The Texas Supreme Court denied one petition for review and issued one per curiam opinion this week with what must be close to the shortest set of orders ever issued.  The Court issued the orders on Thursday, instead of the usual Friday, because of the Good Friday holiday.

In State of Texas v. Precision Solar Controls Inc., another in a long series of soveriegn immunity cases, the Court held that the plaintiff should have an opportunity to establish waiver in light of the "new" opinion in Reata Construction Corp. v. City of Dallas.  In its one-paragraph analysis, the Court stated:

The court of appeals relied on our first opinion in Reata Construction Corp. v. City of Dallas, which we have since withdrawn and replaced.  197 S.W.3d 371 (Tex. 2006).  We held that a governmental entity that brings an action waives immunity from suit for claims that are germane to, connected with, and properly defensive to its action, to the extent of an offset.  Id. at 373.  The State argues that it has not by its action waived immunity for an intentional tort claim like Precision's.  Such arguments should be further considered by the lower court in light of Reata.

The supreme court vacated the court of appeals' judgment and remanded the case to the trial court for further proceedings.

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With today's orders, the Texas Supreme Court has issued per curiam opinions in six cases.

In Zipp v. Wuemling, the Court held that an appeal from the district court's guardianship decision was not rendered moot merely because the ward had died while the appeal was pending.  Because issues remained with respect to who should settle the estate and whether the appellant has a legally cognizable interest in attorney's fees and costs, the supreme court reversed the court of appeals' judgment of dismissal and remanded to that court for further proceedings.

In City of Dallas v. Saucedo-Falls, the Court remanded the case to the trial court after determining that police officers and firefighters who sued the City alleging they were entitled to a pay raise "should have the opportunity to argue any grounds for waiver of immunity remaining under this Court's decisions [after the new opinion in Reata Construction Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006)], including whether the City's immunity from suit is waived by sections 271.151-.160 of the Local Government Code, enacted while this case has been pending on appeal."

In another immunity case, City of Sweetwater v. Waddell, the Court concluded that the court of appeals' reliance on "sue and be sued" language in the City's charter as a waiver was inconsistent with Tooke v. City of Mexia, 197 S.W.3d 325 (Tex. 2006) and remanded to the trial court for further proceedings.

In In re Texas Department of Transportation and In re Gillespie County, separate mandamus actions originating from the same dispute, the Court conditionally granted mandamus relief directing a Travis County probate court to transfer venue of the plaintiffs' claims against certain defendants to Gillespie County, a county of mandatory venue.

In Doe v. Pilgrim Rest Baptist Church, the Court treated as timely a notice of appeal filed more than 90 days after the trial court signed a severance order conditioned on payment of a filing fee.

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The Supreme Court of Texas issued three per curiam opinions with today's orders:

In Hood v. Wal-Mart Stores Inc., the Court held that the court of appeals erred by dismissing the appeal without providing an opportunity to cure when the plaintiff filed an indigence affidavit within the time the appeals court gave him to pay the filing fee or face dismissal.

In In re Bank One, N.A., the Court held that an arbitration clause incorporated by reference on a bank signature card was enforceable and that the bank did not waive its right to arbitrate by moving to set aside a default judgment and seeking a new trial.

In City of Houston v. Williams, the Court rejected a declaratory judgment action complaining about deductions from payments retired firefighters received upon termination as a claim for money damages for which governmental immunity had not been waived.

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In Morales v. Barnett, the Third Court of Appeals has affirmed the trial court's order dismissing a wrongful death suit against the Luling Independent School District on the ground that sovereign immunity had not been waived.  The court of appeals held that the incident did not "arise[] from the operation or use of a motor-driven vehicle" for purposes of the Tort Claims Act (Tex. Civ. Prac. & Rem. Code § 101.021(1)) because the district's jurisdictional evidence negated any causal nexus between a coach's use of hazard flashers while parked beside the road and an athlete's death from being struck by another car.  The appellate court further concluded that the coach's decisions were supervisory in nature and thus could not give rise to a waiver of immunity.

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