A sharply divided Texas Supreme Court recently held that unclaimed class action settlement funds may be disposed of in the manner selected by the parties and are not subject to the state’s Unclaimed Property Act. In Highland Homes Ltd. v. The State of Texas, the court considered a settlement between a prominent Texas home builder and … Continue Reading
It’s not uncommon for state and federal regulatory schemes to provide for an award of statutory civil penalties to deter and punish certain conduct that it is difficult to monetize in a suit for damages. Frequently penalties may be assessed on a per-violation or per-day basis, permitting an astronomical award that bears little relation to the … Continue Reading
One more note on National Gas Pipeline Co. v. Justiss is appropriate. The Texas Supreme Court held that the landowners had failed to present admissible evidence that the permanent nuisance caused by the defendant had diminished the value of their property. Normally, the loss of such a “no-evidence” point leads to the appellate court reversing … Continue Reading
The Texas Supreme Court’s opinion in Natural Gas Pipeline Company of America v. Justiss highlights a subtle but important point regarding the way appellate courts treat undisputed facts. The case concerned claims by neighboring landowners that a natural gas plant created offensive odors, thus constituting a permanent nuisance. The statute of limitations for permanent nuisance … Continue Reading
Texas has long adhered to the “Property Owner Rule,” permitting property owners to testify as to the value of their property. Recent cases have emphasized that the testimony must relate to market value, rather than intrinsic or other value. In Natural Gas Pipeline Co. of America v. Justiss, the Texas Supreme Court clarified that the Property … Continue Reading
The Texas legislature has recently passed civil justice reform legislation. While most of the publicity concerning the legislation focused on the “loser pays” provisions, other changes also deserve note. The new statutes permit an interlocutory appeal of a ruling on a controlling legal issue where such an appeal is approved by the trial court and … Continue Reading
The Texas Legislature is currently considering House Bill 274, containing several measures that could alter the landscape of civil litigation. HB274 would, if enacted: Require the Texas Supreme Court to adopt rules creating a motion-to-dismiss practice patterned on Rules 9 and 12 of the Federal Rules of Civil Procedure (Texas currently does not have a … Continue Reading
Under Texas law, the public has an easement to access dry beaches. This easement extends landward to the vegetation line. A recent Texas Supreme Court case examined the validity of the easement when a hurricane suddenly alters the beachfront. The property owner had constructed a house behind the vegetation line in the West Beach area … Continue Reading
Texas has 14 intermediate appellate courts, more than any other state. In a recent Texas Tech Law Review article and in CLE presentations, Jones Day attorney, David Schenck, has questioned whether the state needs so many appellate courts. This large number of courts was created over many years on an ad hoc basis, seemingly due … Continue Reading
Two Texas ranchers had a long-standing feud. During a drought, 13 of plaintiff’s cattle strayed from plaintiff’s ranch to defendant’s property along a dry river bed. Defendant rounded up the cattle and sold them, despite warnings from the ranch hands that the cattle were not his. Plaintiff brought a conversion action and prevailed at trial. … Continue Reading
On May 28, 2010, the Texas Supreme Court granted petitions for review in the following cases: Anglo-Dutch Petroleum Int’l v. Greenberg Peden P.C.—This case concerns the construction of a contingency fee agreement and the circumstances under which a court can conclude that an agreement is ambiguous. Hyde Park Baptist Church v. Turner—This case concerns the … Continue Reading
On April 9, the Texas Supreme Court granted petitions for review in the following cases: Offshore Specialty Fabricators v. Wellington Underwriting Associates. The case addresses whether an all-risk insurance policy covers weather stand-by charges incurred by the insured. XTO Energy Inc. v. Smith Production Inc. The case will determine whether joint operating agreements for oil … Continue Reading
The Appellate Strategist was the first blog to offer a comprehensive, regularly-updated database of civil issues — broken down by category and subject matter — that the California Supreme Court has agreed to hear and decide. We are proud to announce two new features. Since this "preview of coming attractions" has been one of our most popular … Continue Reading
A party in case before the Texas Supreme Court grew so frustrated by waiting for an opinion almost three years after oral argument that it sued the justices in federal court, alleging due process violations. Coincidentally (or not) the Supreme Court issued an opinion eight days later. The court heard oral arguments in Southwestern Bell … Continue Reading
[UPDATED THROUGH APRIL 1, 2010] Sexual Harassment. Did plaintiff submit sufficient evidence to establish the elements of a sexual harassment claim? Was plaintiff constructively discharged under the facts of the case? Or was the evidence sufficient to support the jury’s finding of malice and a subsequent award of punitive damages against a corporate defendant for … Continue Reading
[UPDATED THROUGH APRIL 1, 2010] Stranded Costs, Transition to Competitive Marketplace. Is utility entitled to recover interest on certain “stranded costs” it incurred during transition from land-regulated to competitive marketplace? Is utility permitted to recover a valuation panel fee as an expense? Must new on-site generators of electricity continue to pay utility to offset its … Continue Reading
[UPDATED THROUGH APRIL 1, 2010] Causation, Preemption, Safer Alternative Design, Jury Misconduct. Was claimant required to introduce into evidence at least two statistically significant scientific studies showing that Vioxx more than doubled the risk of heart attack, or is evidence from a clinical trial sufficient? Did claimant’s expert sufficiently account for alternate causes of account … Continue Reading
[UPDATED THROUGH APRIL 1, 2010] Civil Forfeiture. Did the court of appeals err in determining that the trial court incorrectly disregarded the jury’s findings that currency found in a truck was not contraband where there was no direct evidence linking the currency to any drug transaction? If the currency is not contraband, is an innocent … Continue Reading
[UPDATED THROUGH APRIL 1, 2010] Equine Activity Act. Do provisions of the Equine Activity Act, Tex. Civ. Prac. & Rem. Code § 87.001 et seq., providing that certain persons are not liable for damages resulting from risks inherent to an equine activity apply to a claim that defendant was negligent in leading plaintiff into a … Continue Reading
[UPDATED THROUGH APRIL 1, 2010] Governmental Immunity and Waiver, Declaratory Judgment Act. Did the Dallas City Charter and/or Tex. Loc. Gov. Code § 51.075, providing that a municipality may “plea and be impleaded in any court,” waive governmental immunity? May a municipality which has waived governmental immunity through asserting a counterclaim reinstate that immunity by … Continue Reading
[UPDATED THROUGH APRIL 1, 2010] Prostitution. May a 13-year-old juvenile be adjudicated delinquent for the offense of prostitution, even though juvenile could not have given valid consent to sexual acts? In re B.W., No. 08 1044, formerly 274 S.W.3d 179 (Tex. App.—Houston [1st Dist.] 2008), review granted 10/23/09.… Continue Reading
[UPDATED THROUGH APRIL 1, 2010] Personal Jurisdiction Over Corporate Officers. Are corporate officers subject to personal jurisdiction in Texas for claims arising under the Texas Trust Fund Act where officers controlled trust funds intended for payments of persons providing labor or material to Texas construction projects? May Texas assert personal jurisdiction over corporate officers with … Continue Reading
[UPDATED THROUGH APRIL 1, 2010] Law of the Case Doctrine, Jurisdiction of State Courts After Removal, Recusal. Does a federal court order establish law of the case with respect to whether remand had properly been carried out? Did appeal of remand order in federal court deprive the state court of jurisdiction? Did judge err in … Continue Reading
[UPDATED THROUGH APRIL 1, 2010] Conversion, Punitive Damages. Does probative evidence support the finding that defendant stole 13 cattle? Did evidence support finding that defendant acted with malice under the “clear and convincing standard?” Is award of over $1 million in punitive damages constitutionally excessive in case involving theft of cattle worth approximately $5,000? Bennett v. … Continue Reading
