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Recent Developments in Law Worth Noting

This update includes many decisions made by the Texas Supreme Court in December. This includes the following cases. To read more on each of these recent rulings, please click here.

On December 2, 2022, the Court issued an opinion in In re Auburn Creek L.P., Tex. SCt. # 21-0886, ___ S.W.3d ___, 2022 WL ___ (Tex. Dec. 2, 2022) (per curiam), a discovery case concerning court-ordered medical examination of an allegedly injured plaintiff.

The issue was whether the trial court abused its discretion by denying the defendants’ motion under Tex.R.Civ.P. 204.1 to conduct a medical examination of the plaintiffs.

On December 9, 2022, the Court issued another discovery opinion in the mandamus case In re Kuraray Am., Inc., Tx SCt. # 20-0268, ___ S.W.3d ___, 2022 WL ___ (Tex. Dec. 9, 2022) (per curiam)

The issue was whether the trial court abused its discretion by ordering a party to produce up to four months of cell-phone data from its employees.

Also on December 19, 2022, the Court denied the petition for review in Howell v. Abbott, No. 04-21-00119-CV, 2022 WL 947190 (Tex. App.—San Antonio Mar. 30, 2022), review denied, No. 22-0311, 2022 WL 17542908 (Tex. Dec. 9, 2022). Worth noting because two of the justices filed a concurrence with the denial, a somewhat rare occurrence. The case concerns Gov. Abbott’s power to issue various emergency orders during the Covid crisis.

On December 13, 2022, the Supreme Court formally proposed amendments to appellate rule 34.5 that would require inclusion in the appellate record any supersedeas bond (filed by the judgment debtor to stop enforcement of the judgment pending appeal).

On December 16, 2022, the Court granted petitions for review in a number of cases.

Kan. City S. Ry. Co. v. Horton, # 21-0769, 2021 WL 926281 (Tex. App.—Dallas 2021), pet. granted (Dec. 16, 2022) is a Railroad Crossing case out of Dallas that affects jury charge error and other significant legal issues.

Lennar Homes of Tex. Land & Constr., Ltd. v. Whiteley, #21-0783, 625 S.W.3d 569 (Tex. App.—Houston [14th dist.] 2021), pet. granted (Dec. 16, 2022), coming to the Court from Houston, concerns the enforcement of arbitration agreements.

The issue is whether an arbitration agreement in a recorded deed runs with the land and therefore binds the home’s successive purchasers.

Hotze v. Turner, #21-1037, 634 S.W.3d 508 (Tex. App.— Houston [14th Dist.] 2021), pet. Granted (Dec. 16, 2022) concerns municipal law.

This case concerns a pair of ballot propositions, Propositions 1 and 2, that were submitted to Houston voters in 2004. Both were designed to provide tax relief to city residents. The ordinance submitting them to an election included a “poison pill” provision after the text of Proposition 1. The provision stated that “[i]f another proposition for a Charter amendment relating to limitations in City revenues is approved at the same election at which this proposition is also approved, and if this proposition receives the higher number of favorable votes, then this proposition shall prevail and the other shall not become effective.”

Schindler Elevator Corp. v. Ceasar, #22-0030, 2021 WL 5570136 (Tex. App.—Beaumont 2021), pet. granted (Dec. 16, 2022) concerns trial procedures and jury charges.

The appeal concerns whether the trial court in the underlying personal-injury case erred in excluding evidence, in charging the jury, and in imposing sanctions (including mid-trial document production) and whether those errors, if any, were harmful.

1776 Energy Partners, LLC v. Freeport-McMoRan Oil & Gas LLC, #22-0095, 2021 WL 6127930 (Tex. App.—San Antonio 2021), pet. granted (Dec. 16, 2022) concerns whether a title dispute permits a payor of oil-and-gas proceeds to withhold payments without interest under the safe-harbor provision of the Texas Natural Resources Code.

CAE SimuFlite, Inc. v. Talavera, #22-0180, 2022 WL 202987 (Tex. App.—Dallas 2022), pet. granted (Dec. 16, 2022) concerns whether Texas should recognize a cause of action for educational malpractice and whether a trial court must grant a Rule 91a motion to dismiss any time a novel claim is asserted.

This case arises out of a plane crash in which the two pilots on board, Talavera and Flores, were killed. The pilots’ heirs and representatives sued the two flight-training centers that trained the pilots, CAE and American, alleging negligent training and breach of contract. The pilots’ lawsuit centered on the allegation that the crash resulted from the flight-training centers’ inadequate training and instruction. Both CAE and American moved to dismiss the pilots’ claims on the basis that Texas law has never recognized a claim for educational malpractice. The trial court denied the motions to dismiss but authorized a permissive interlocutory appeal. The court of appeals denied the petition and dismissed the appeal for want of jurisdiction.

Iraan-Sheffield Indep. Sch. Dist. v. Pecos Cnty. Appraisal Dist., #22-0313, 645 S.W.3d 827 (Tex. App.—El Paso 2022), pet. granted (Dec. 16, 2022) concerns whether Iraan-Sheffield ISD lawfully entered into a contingent-fee agreement with an attorney under Section 6.30(c) of the Texas Tax Code, which authorizes taxing units to hire private counsel on a contingent-fee basis “to represent the unit to enforce the collection of delinquent taxes.” It’s also noteworthy for the phrase “tax ferret,” which we had not heard before!

The Court granted Kinder Morgan and the appraisal district’s petition for review and set oral argument for February 2, 2023.

On December 19, 2022, the Court formally approved amendments to the Rules and Forms for a Judicial Bypass of Parental Notice and Consent Under Chapter 33 of the Family Code, effective immediately.

On December 30, 2022, the Court released a number of year-end opinions.

On December 30, 2022, the Court issued Zimmerman v. City of Austin, #21-0262, ___ S.W.3d ___, 2022 WL 17998212 (Tex. Dec. 30, 2022) (per curiam) The issue in this abortion related case is whether a statute that was never expressly repealed is enforceable after a case that held the statute to be unconstitutional was overruled.

The City of Austin approved a budget that included funding for entities that provide support to residents who seek abortions. Don Zimmerman sued the City, alleging that this budget allocation violated a Texas statute that prohibits furnishing the means for procuring an abortion.

Also on December 30, the Court issued Gulf Coast Ctr. v. Curry, #20-0856, ___S.W.3d ___, 2022 WL 17998210 (Tex. Dec. 30, 2022). The issue in the case is whether the Texas Tort Claims Act’s caps on the amount of a governmental unit’s liability implicate the trial court’s jurisdiction so the plaintiff has the burden to prove which cap applies.

Also on December 30, the Court issued Cameron Int’l Corp. v. Martinez, #21-0614, ___ S.W.3d ___, 2022 WL 17998214 (Tex. Dec. 30, 2022) (per curiam). The issue is whether an oilfield worker traveling for personal necessities was acting in the course and scope of his employment such that the employer is vicariously liable for the worker’s alleged negligence in connection with a car accident en route.

Also on December 30, the Court issued Jordan v. Parker, #21-0205, ___ S.W.3d ___, 2022 WL 17998227 (Tex. Dec. 30, 2022). The case presents the issue of whether a conveyance of “all of my right, title and interest” in a ranch included the grantor’s remainder interest in a different estate that held an interest in the same ranch. J. Loyd Parker Jr. left a life estate to his widow, Ruthie Parker, with a remainder in the estate to their two children.

Still on December 30, 2022, the Court released Durden v. Shahan, #21-1003 and 21-1017, 21-1018___ S.W.3d ___, 2022 WL 17998216 (Tex. Dec. 30, 2022) (per curiam). The issues are (1) whether a county attorney has authority to initiate a Texas Open Meetings Act suit in the name of the State; and (2) whether the attorney made a bona fide attempt to invoke the court of appeals’ jurisdiction with respect to sanctions imposed against the attorney personally.

Again, on December 30, the Court issued In re Stetson Renewables Holdings, LLC and Ogallala Renewable Project, LLC, #22-1119, ___ S.W.3d ___, 2022 WL 17998213 (Tex. Dec. 30, 2022) (per curiam). The issue was whether applicants in a statutory tax-incentive program have a judicially enforceable right to compel the Comptroller to process their applications.