But there is now some actual news coverage to pass along. The Statesman‘s online edition reports on a lawsuit filed by Michele Petty — the presumed Democratic nominee — against Justice Hecht, arguing that he should be ineligible for both the 2012 Republican primary ballot and the 2012 general-election ballot. The suit seeks injunctive relief.

The reason? Each candidate for statewide judicial office is required to have a certain number of signatures from each of the state’s fourteen appellate districts. The petition argues that some of the petitions in Fort Worth were defective, dropping Justice Hecht below the required total.

You can read more:

Early voting started before this lawsuit was filed, so I think it particularly unlikely that a district court will enjoin the ongoing Republican primary, just to investigate (as the petition asks). The petition does, however, also challenge the November general-election ballot. That claim may play out over a longer timeframe.

Source: “Hecht opponent sues to halt ballot printing”

Casteel does not apply to an erroneous contributory-negligence submission

Thota v. Young, No. 09-0079 (Green, J.) (opinion).

This was a medical-malpractice case that actually made it past the expert-witness phase to a merits trial. The question on appeal was whether a jury charge question about contributory negligence (by the patient) had been erroneous and, if so, whether that was a harmful error. The doctor argued that this issue had been waived because the plaintiff had not made a specific enough objection at the charge conference.

Where there is broad-form submission, there are appellate lawyers arguing over Casteel. In this case, the court of appeals concluded that the particular charge error qualified for a Casteel “presumed harm” analysis that would allow it to reverse for a new trial without walking through a formal harmless-erorr analysis. The court of appeals thus ordered a new trial.

The Texas Supreme Court originally denied the petition for review. On rehearing, however, it decided to grant the petition and set it for oral argument last November. Today, the Court issued a unanimous opinion reversing the court of appeals. (I wrote a blurb about the case when rehearing was granted.)

The Court first addressed the question of whether this appellate point had been preserved by a no-evidence objection. Here, it sided with the plaintiff, concluding that — at least for this particular type of charge error — the no-evidence objection was specific enough.

It then reached the question whether this charge error was significant enough to reverse the judgment. The Court rejected the court of appeals’s analysis about “presumed harm,” concluding that the “presumed harm” analysis of Casteel did not apply to a contributory-negligence question in a case with only one theory of liability.

That extends (or maybe just applies) the Court’s decision in Bed, Bath, and Beyond v. Urista, which had refused to apply the presumed-harm rule to an erroneous “inferential rebuttal” instruction in a single-theory case. This case, unlike Urista involved a question about a defense (not just an instruction about weighing the evidence). But the Court found the principle the same, refusing to presume that it was harmful error.

The Court then walked through a more traditional harmful-error analysis, concluding that any error here was not harmful. It reversed the court of appeals and remanded to that Court for it to consider other issues in the case.

New grant: Debts of a spouse after divorce

The Court granted the petition for review in Tedder v. Gardner Aldrich, LLP, No. 11-0767, a divorce case out of the Fort Worth Court of Appeals. The case should be scheduled for an oral argument on the fall calendar.

The suit is between one of the wife’s creditors and her ex-husband. And, if you couldn’t guess by the style of the case, the wife’s creditor (Gardner Aldrich LLP) is the law firm she hired to handle the divorce litigation. The husband’s petition for review argues that the Family Code limits which debts of a spouse can be attributed to the other, and that the creditor did not establish that the debts involved were “necessaries” or that the husband had not complied with the support orders of the divorce court.

Here are a few notes that I jotted down:

The importance of studying what issues might interest the Court

The first few questions were about the Court’s petition practice. In Texas Supreme Court practice, the parties file a short petition for review raising each issue being brought to the Court (which can be just one or two, or in some petitions can be many issues). If the Court wants to hear more, it will order full briefing on the merits in support of the petition (before deciding whether to grant review). The Court then grants some of these petitions for oral argument.

One question to the Court was why it did not specify which issues it wanted to hear more about when it was requesting briefs. A second asked why, when the Court granted review and set the case for argument, it did not tell the parties which areas the Court thought were important to address at oral argument.

Both discussions boiled down to the same thing: Advocates have to be responsible for the issues they choose to present. The Chief explained that, when advocates have presented a large number of issues, there are often ongoing disagreements among the Justices about which issues matter. If you asked what to focus on at oral argument, you “might get nine areas of importance.” Justice Guzman called the choice of what to emphasize a “strategic call” by the attorneys as advocates.

The panel also noted a strategic downside to advocates raising “too many issues.” Because the Court has discretionary review, it may decide to wait for a petition that presents the truly important issue directly rather than have to confront it buried within a maze of other issues. (This echoed how the Court responded two years ago, when the Chief explained how a petition that raises additional issues can undermine the Court ever reaching the key issues that might need the Court’s clarification.)

To summarize: Choosing which issues to raise is the job of the advocate, and it should be done with some strategic thought about how the issues relate to each other and to pending issues on the Court’s docket.

CVSGs and other amicus briefs

On the subject of amicus briefs in general, Justice Johnson noted that some “have made a significant difference in my thought process.” He also emphasized that a good amicus brief can add credibility to a petition’s assertion that a case has broad importance, especially if it offers a “deeper perspective.” Justice Medina emphasized that filing an amicus brief earlier in the process can ensure that the Justices have a chance to absorb it before casting their votes.

With regard to the Court’s CVSG practice (in which it asks the Texas solicitor general to weigh in), the Chief noted that the Court prefers to issue those requests in advance of oral argument so that the solicitor general has the chance to request argument time.

Electronic filing and e-briefs

The panel was also asked about the new Texas e-filing system and how the Justices use e-briefs.

The overall response was that the electronic versions were much more convenient (the Justices no longer need to “lug around” boxes of briefs to continue working from home or as they travel). The members of the Court have been issued iPads, and they are using them to read briefs.

The Court also discussed a proposed change to the Texas Rules of Appellate Procedure that would move to a word count rather than a page limit for briefs. Justice Hecht noted that one goal was to enable the advocates to use larger fonts (“as some Justices prefer”), and a second goal was to allow advocates to embed exhibits or helpful items within briefs without running afoul of page limits. (There was some back-and-forth about whether the currently proposed word limits are too low. If you have a view about this, you should probably speak up now.)

Pet peeves and breaking tone

There wasn’t much discussion about pet peeves, but two of them came up.

Justice Johnson noted the importance of not over-claiming the record. He finds it actually “difficult to read” briefs once he realizes that the two sides are making diametrically opposed representations about the record. He sometimes will turn to the court of appeals’s account and find that it doesn’t match either side’s presentation. (This echoes a concern he raised at a panel last year.)

Justice Medina mentioned motions for rehearing as a concern. He said that advocates are “probably not going to beat the Court down” by the force of their rhetoric in a rehearing motion. This matches what the Justices have often said about rehearing practice.

Both of those pet peeves echo things we’ve heard before, but apparently the message has not been received by all corners of the bar. The advice might be this: If you find yourself hitting the exclamation mark on your keyboard, it might be time to call an appellate lawyer who can bring a different perspective.

The next private conference of the Justices is scheduled for next Monday and Tuesday (with another conference scheduled for the following week).

In re Rebecca Ramirez Palomo, No. 12-0208 (per curiam)

On March 28th, the Texas Supreme Court ordered that a judicial candidate (Rebecca Ramirez Palomo) be returned to the primary ballot. I wrote a short post about the order, which was accompanied by the notation “Opinion to follow.”

Today, the Court is issuing that opinion (PDF).¹

This case grows out of a judicial election in Webb County. One of the candidates for a district court seat, Fernando Sanchez, objected to the eligibility of his opponent, Rebecca Ramirez Palomo, arguing that she had not (as required) been a practicing lawyer for the four years preceding the November 2012 election date. Sanchez noted that Palomo had briefly claimed an exemption from mandatory continuing legal education (MCLE) requirements. The local county party chair refused to remove Palomo from the ballot.

Sanchez sought a writ of mandamus in the court of appeals. The court of appeals granted that relief, ordering the party official to remove Palomo’s name from the ballot. The heart of the court of appeals’s reasoning was that Palomo was ineligible to practice until the time that she actually notified the state bar that she intended to reassume her MCLE responsibilities. Because that notice was sent within the four-year window, the court concluded that the public records conclusively established that she was not eligible.

The Texas Supreme Court disagreed about whether this notice to the bar should be given dispositive weight. The Court explained that attorneys report their MCLE status only at the end of the relevant year. Before that time, they can change their mind about whether or not they intend to do the hours: “A lawyer might claim the non-practicing exemption early in the compliance year, fully intending not to practice, yet change her mind before the compliance deadline, withdraw the claim, and complete all MCLE requirements for the year. Or a lawyer can wait until the compliance deadline — or perhaps even later — to claim an exemption from MCLE for the preceding year. All that matters is whether the lawyer is entitled to an exemption from MCLE requirements by the deadline for completion.”

Thus, unlike other types of “inactive” status, an attorney does not need to formally notify the bar in advance to resume active status after an MCLE exemption. For that reason, the Court held, the date on Palomo’s letter to the bar does not control this question.

Instead, the Court reviewed the other public records and concluded that they did not meet the heavy burden of “conclusively” showing that Palomo was ineligible during the four years preceding the general election in November 2012. The Court explained that Palomo probably did not intend to claim an exemption for the year ending October 2009 at all (“a year in which she actually met her MCLE requirements”) but instead for the previous year ending October 2008, which would not affect her eligibility for this election.²

1. You may be wondering, “When does the clock start for rehearing? Do you have to file a motion for rehearing before you know the Court’s reasoning?” According to Rule 64.1, the clock starts “when the Court renders judgment,” so that would be March 28th. The docket shows that the real party in interest filed a motion to extend time within the time permitted, and the Court had granted that motion before issuing this opinion.
2. Palomo’s birthdate falls in November, so her compliance year ends on October 31.

Two years ago, the event featured a great panel discussion (that I wrote about here). This year, we are expecting seven of the Justices to participate.

The event requires a ticket, which is $30 at the door. (Your check can be made out to “Civil Appellate Section.”) It has been approved for 1.5 hours of CLE (with 0.5 hours of ethics). The event is jointly sponsored by the appellate sections of the State Bar and of the Austin Bar.

The longest-pending case

Among Friday’s opinions was Bison Building Materials, which has been the longest-pending case on the Court’s docket.¹

I wrote in February about the Court’s pattern of opinion releases. At that time, the Court only had three argued cases held over from a previous term — Bison Building Materials, Severance v. Patterson, and Edwards Aquifer v. Day. Now, there are none.

Bison Building Materials, Ltd. v. Lloyd K. Aldridge, No.06-1084

In a 6-3 decision, the Court held that a trial court’s order about an arbitration was not appealable or a proper subject for mandamus relief. The majority opinion was written by Justice Wainwright, who explained that the trial court’s order had left open some factual issues for later determination and thus was not a final judgment under Texas procedure.

What was trickier in the case, and what led to the split between majority and dissent, was the question of how the Federal Arbitration Act (FAA) would be applied in similar circumstances by federal courts. This was not technically a controlling question in the case.² But both the majority and dissent looked to federal precedent to see if there might be a persuasive reason for the Court to use its more flexible mandamus jurisdiction as a kind of gap-filler here.

The dissent (by Justice Hecht) cited several cases it saw as on-point, but the majority (by Justice Wainwright) disagreed about whether those cases spoke to this precise question (a partial disposition by the trial court, with some issues reserved). Because a majority of the Court did not want to exercise its mandamus authority, the Court ultimately affirmed the decision below dismissing the appeal for want of jurisdiction.

Sabine Pilot claims are tort claims that can, theoretically, support punitive damages

In Safeshred, Inc. v. Louis Martinez, III, No. 10-0426 (Lehrmann, J.), the Court answered a lingering question about whether a Sabine Pilot wrongful termination case — when an employee is fired for refusing to do an illegal act — sounds in tort and thus can support punitive damages. It does, and it can.

But the Court found that the specific evidence here was legally insufficient to support a punitive damages award. The Court held that the “malice” to support punitive damages must be something related to the firing or its aftermath — not the nature of the illegal act that the employee refused to do.

Damages for improper construction in a build-to-suit project

In Ashford Partners, Ltd. v. Eco Resources, Inc., No. 10-0615 (Medina, J.), the Court was faced with a dispute over a commercial build-to-suit lease, where the nominal tenant had arranged for the construction of the building.

Sometime after the lease began, some building defects were discovered. The tenant sued, arguing that it should be compensated for the diminished value of its property interest in the leasehold.

The Court, instead, characterized this as a construction dispute. Because this project was “substantially complete,” the only proper measure of damages for defects was their reasonable repair cost. Here, the landlord (eventually) fixed the damages at no cost to the tenant. Accordingly, the Court concluded that there was no evidence of the right measure of damages.

There is no requirement that an affidavit contain a “jurat,” and defects are waived if not raised in the trial court

The Mansions in the Forest, L.P. v. Montgomery County, No. 10-0969 (per curiam)

There are two holdings in this case that should interest any Texas lawyer who deals with affidavits. The substantive holding is that the Government Code does not require a formal “jurat” in order to be valid.

What’s a jurat? It’s this part of an affidavit:

While making this holding, the Court expressly disapproved of prior cases from at least eight of Texas’s courts of appeals (listed on pages 6-7 of the PDF).

Although the Court does not require that a jurat be included in the affidavit, the substance of what is normally sworn to in the jurat must still be true. If a jurat is not included, the Court explained, “other evidence must show that it was sworn to before an authorized officer…” No objection was made here.

The Court’s second holding, however, was that this deficiency was waived. The Court held that this type of defect would require an objection in the trial court: “When a purported affidavit lacks a jurat and a litigant fails to provide extrinsic evidence to show that it was sworn to before an authorized officer, the opposing party must object to this error, thereby giving the litigant a chance to correct the error.” There was no objection here.

Three other opinions

• Dr. Edwin Cruz v. Andrews Restoration, Inc. d/b/a Protech Services and Rudy Martinez v. Chubb Lloyds Insurance Co., No. 10-0995 (Jefferson, C.J.). This case has some interesting holdings about the remedy of restoration (which requires that the party also return whatever benefit they received), about preserving error in a jury charge (it might be harder than you thought), and even the “main purpose” doctrine in indemnity law. It’s worth more than a bullet point.

• Maria Ester Salinas v. Norberto Salinas, No. 11-0131 (per curium). The core issue in this case is about damages for defamation per se.³

• Commission for Lawyer Discipline v. Heather Schaefer, No. 10-0609 (on reh’g) (per curium). On rehearing, the Court held that a quorum of a state bar disciplinary body committed an error when it proceeded despite a vacant seat — but that this was a non-jurisdictional defect that was waived if not objected to promptly.

Rehearing denied in the “billion dollar” civil-service case

City of Dallas v. David S. Martin and George G. Parker, et al., No. 07-0288 asked when city employees who have civil-service contracts for their benefits or salary (such as, in this case, firefighters) can later sue for violations of those contracts.

In December 2011, the Court upheld the City’s immunity from these claims. On Friday, the Court denied the employees’ motion for rehearing.

Petition Granted

Nelda Gonzales v. Southwest Olshan Foundation Repair Co., No. 11-0311 [argument date to be determined]. The question is how a common-law implied warranty interacts with the DTPA (particularly with the statute of limitations).

1. It was very briefly classified as “abated” last summer, so it might not have been included in internal reports about long-pending cases. It was noted here, however.
2. Because Bison Building had been pending so long, it fell before the effective date of a 2009 Texas statute that would have vested Texas courts with interlocutory appellate jurisdiction whenever a federal court would have the same.
3. This case also led to an unusual docket notation: “motion to grant review, reverse and vacate per curiam due to respondent’s failure to file any response, denied.”

Meanwhile, the Supreme Court Advisory Committee is tackling the controversial question whether to provide court-approved forms for litigants who represent themselves in divorce cases. Angela Morris of Texas Lawyer has been live-tweeting the meeting. It’s the rare rules issue that draws in the general public:

Earlier today, #SCAC chair Chip Babcock says it’s first meeting with attendance by lobbyist, & TV cameraman. “We have hit the big time.”

— Angela Morris (@AMorrisReports) April 13, 2012

Added: Jason Wilson has gathered today’s stream of tweets about the meeting onto a Storify page. He has added some commentary, too. The title is “The Death of Common Sense”.

There’s other press coverage (and links to some background articles) at the Texas Tribune.

The Texas cases are Masterson v. Dicocese of Northwest Texas, No. 11-0332, and The Episcopal Diocese of Fort Worth v. The Episcopal Church, No. 11-0265 (direct appeal). Both involve questions about how to divide property when a local diocese splits from a national church organization — and how the First Amendment might limit the ability of Texas courts to speak to these questions.

The Virginia lawsuit actually ended about two years ago with The Protestant Episcopal Church v. Truro Church, 694 S.E.2d 555 (Va. 2010). The court there sided with the umbrella entity (the “hierarchical church”), concluding as a matter of Virginia statutory law that the requirements to show a property division had not been established. For that reason, the Virginia court did not reach the federal constitutional question.

The NPR story isn’t strictly a legal story — there’s no discussion of the merits of the suit. The focus is on how the Virginia lawsuit has affected congregations on both sides of the suit as they now try to disentangle their property and move forward.

Source: “A Church Divided: Ruling Ends Va.’s Episcopal Battle”

The case is In re Rebecca Ramirez Palomo, No. 12-0208, a mandamus petition that is the first elections case of this cycle. The Court granted relief by order, with a notation that the Court’s opinion will be issued at a later time.¹

The Interim Webb County Democratic Party Chair, Sylvia G. Palumbo, is directed to take all actions necessary under, or required by, the Texas Election Code to certify Rebecca Ramirez Palomo as a candidate for the 341st Judicial District Court and to place her name on the ballot for that office.

The Texas Constitution requires that a judicial candidate for the district court “has been a practicing lawyer or a Judge of a Court in this State, or both combined, for four (4) years next preceding his election.” Tex. Const. art. V, §7. Based on the parties’ briefs (candidate: PDF (13 MB); party official: PDF (15 MB) ), it looks like the main substantive dispute was whether the candidate had continuously practiced law for the previous four years (as required for district court judges). The main procedural dispute was whether the local party official had authority to strike a name from the ballot without stronger evidence.

We’ll find out what arguments persuaded the Court when it issues its opinion.

1. Also notable is that the Court granted relief based solely on the 15-page mandamus petition itself rather than following its practice (in less time-sensitive cases) of requesting full briefing on the merits.