Texas Supreme Court Update (2020)

Texas Supreme Court Update Don Cruse 2020 State Bar of
Texas Advanced Civil Trial Course 512-853-9100 Law Office of Don Cruse [email protected]

The Yearbook Photo for the 2020 Term

And then came the ransomware attack...

Even so, it still looks like a normal statistical term
• The Court met its annual target of issuing opinions in all cases argued during the Term • The total number of opinions was well in line with recent Terms (~70 cases decided) • Might be years before the reduction in the number of bench/jury trials percolates up; emergency petitions might fill any gap

We do know of at least one change coming this
Fall Justice Green is retiring after 15 years on the Court His seat will be filled for two years by the Governor’s appointee, subject to Senate confirmation (when it returns)

Four other seats are on the ballot this November Although
statewide judicial elections have not been competitive for decades, nothing else has been predictable about 2020. (This is also the first year without straight-ticket voting.) Hecht Boyd Busby Bland

Snapshot of the Term* * Unless otherwise specified, this data
has been compiled by the author. Some of the annual figures are published through his SCOTXblog website.

Opinion Authorship FY2020 (through July 17, 2020) https://data.scotxblog.com/stats/opinion_tables/2020

Who votes with each other Justice? FY2020 (through July 17,
2020) FY2020 (through July 17, 2020) https://data.scotxblog.com/stats/voting/2020?affinity=jm&scope=divided

Whose votes align with the judgment? Focusing on the cases
with at least one dissent from judgment 2019-2020 Terms 2016-2018 Terms Lehrmann 94.7% ⇧⇧ 77.2% Guzman 94.5% ⇧ 85.7% Busby 90.9% — Devine 90.8% ⬄ 89.5% Bland 85.0% — Green 81.8% ⇩ 85.6% Hecht 70.1% ⇩⇩ 88.9% Blacklock 69.3% ⇩ 80% Boyd 60.4% ⬄ 58.6%

Holdings from the Term

Business disparagement ≠ defamation Innovative Block v. Valley Builder Supply,
No. 18-1211 decided June 26, 2020 A corporate plaintiff pleaded both defamation and business disparagement, but only submitted defamation to the jury. SCOTX holds that the key difference “is not about the nature of the injury but instead the nature of the alleged falsehoods.” To potentially be defamatory per se, the falsehood “require[s] a fair imputation of corporate dishonesty or other reprehensible conduct in connection with the disparaged goods or services…”

Capacity vs. Standing Pike v. EMC Mgmt., et al., No.
17-0557 decided June 19, 2020 Plaintiff was a limited partner. The defendant did not file a verified plea under Rule 93 objecting to the plaintiff’s capacity to bring suit seeking damages to the business. Instead, the defendant argued that the plaintiff lacked “standing” to sue for partnership profits. The stakes: Unlike standing, capacity is waivable. And the defendant did not meet the terms of Rule 93.

“We hold that the question whether a claim brought by
a partner actually belongs to the partnership is likewise a matter of capacity…” Principal holding: This led to a dissent by Justice Bland, who argued that this put Texas out of step with Delaware law and urged the Legislature to fix this in future legislation. Capacity vs. Standing

But after classifying this as a waivable “capacity” issue, the
Court then lowered the stakes. It held that capacity could be challenged here, even without a verified plea. The Court put the blame on the clarity of the petition. The sections seeking damages did not distinguish which party was seeking which damages from which defendant and, thus, did not put the defendant on notice of this capacity defect. At least on this record, the capacity concern “did not arise” until the plaintiff requested a jury question for those damages. SCOTX held that objecting to this jury charge had “timely raise[d]” the capacity concern — notwithstanding Rule 93. Capacity vs. Standing

Bonsmara Natural Beef Co. v. Hart of Tex. Cattle Feeders,
No. 19-0263 decided June 26, 2020 Majority Dissent Choosing not to take an interlocutory appeal does not waive arbitration

Choosing not to take an interlocutory appeal does not waive
arbitration

Summary judgment objections B.C. v. Steak N Shake Operations, Inc.,
No. 17-1008 Per Curiam • March 27, 2020 Summary judgment evidence is due 7 days before the hearing, and the “presumption” is that late-filed evidence is not considered: But if the trial court order recites that it considered “the evidence,” without the court ruling separately on objections or adding some qualification, that overcomes the presumption.

Summary judgment objections

The COVID docket

SCOTX has been on two tracks Acting as a Court
Overseeing the Judiciary • various challenges to emergency orders • mandamus actions against local officials • disputes among officials over how to interpret the Election Code • issued 22 emergency orders (by early August) •devising safety rules for trial proceedings •rescheduling/modifying the July bar exam

Apr May Jun Jul Aug COVID Test Positivity Rate Seven-day
average COVID-19 positivity rate source: Texas DSHS Data Dashboard (data reported through August 9, 2020)

Apr May Jun Jul Aug COVID Test Positivity Rate In
re Greg Abbott - jail releases (April 23)

re Greg Abbott - jail releases (April 23) Per Curiam granting mandamus to dissolve a TRO

re Greg Abbott - jail releases (April 23)

re Salon a la Mode haircuts (May 5)

re Salon a la Mode haircuts (May 5) Justice Blacklock, concurring in denial of mandamus:

re State of Tex., mail-in voting (May 27) argued May 20

re State of Tex., mail-in voting (May 27) argued May 20 Chief Justice Hecht, for majority denying mandamus:

re State of Tex., mail-in voting (May 27) argued May 20 3 of the 7 in majority joined a concurrence by Justice Guzman looking for a common holding:

re State of Tex., mail-in voting (May 27) argued May 20 Justice Bland separate concurrence:

Apr May Jun Jul Aug COVID Test Positivity Rate SCOTX
Emergency Order #19 canceling bar exam ( July 3)

re Republican Party of Tex., convention center contract ( July 13)

re Republican Party of Tex., convention center contract ( July 13) Per Curiam denying mandamus relief

re Republican Party of Tex., convention center contract ( July 13)

re Hotze, broad constitutional challenge to emergency orders ( Jul 17)

re Hotze, broad constitutional challenge to emergency orders ( Jul 17) Justice Devine, concurring in dismissal of mandamus:

Questions that might come up this Fall • School funding
- constitutional right vs. emergency • Effect of local/state emergency orders on property/ contract rights (these might need to percolate up) • If a federal liability bill is enacted, any open state law issue might end up as a “certified question” • Disputes about the adequacy of election safeguards • Tort duties / premises liability - whether these will end up being swept into “duty rules” or litigated out

Cases to watch this Fall

What is the consequence if a defamed party does not
(or cannot) timely request a retraction from the defendant? Hogan v. Zaonni, No. 18-0944 to be argued Sept. 15, 2020 Defamation Mitigation Act • Does that merely prevent them from obtaining an award of exemplary damages? • Or does failing to request a retraction bar pursuing any defamation claim at all?

Defamation Mitigation Act In May, the Court did not reach
this question (after deciding a predicate issue in the plaintiff’s favor)

Defamation Mitigation Act Even though neither the majority nor dissent
reached it, they still disagreed about how to describe the framing of the issue

Redesigning a design-defect jury charge Emerson Elec. Co. v. Johnson,
No. 18-1181 to be argued Oct. 6, 2020

When are decisions made in an emergency a “taking” under
Ch. 2007? San Jacinto River Auth. v. Medina., No. 19-0400 to be argued Oct. 6, 2020

In re Academy, Ltd., No. 19-0497 to be argued Oct.
6, 2020 Liability for gun sales • Mandamus Does the federal PLCAA immunize Academy from a claim for selling the gun used in the Sutherland Springs massacre? District court denied MSJ and denied a permissive interlocutory appeal. Academy sought mandamus relief, arguing that dismissal was required or that it was an abuse of discretion not to allow a permissive interlocutory appeal.

Liability for gun sales • Mandamus Is this a liability
rule with factual exceptions? Or a “right not to be sued” that might plausibly support mandamus relief? Petition Response

Don Cruse 512-853-9100 Law Office of Don Cruse [email protected]

Texas Supreme Court Update (2020)

Texas Supreme Court Update (2020)

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