If you have power and a little time for a half-hour of ethics CLE, the State Bar Litigation Section has put together this good video about the proposed new disciplinary rules. The voting period ends March 4 and you can do that on the State Bar website.
While the Texas Supreme Court has recently reversed cases where intermediate courts have found briefing waiver, a succinct line from Brumley v. McDuff reminds of the general principle: “With the exception of fundamental errors, a court of appeals must not reverse a trial court’s judgment in the absence of properly assigned error.” No. 19-0365 (Feb. 5, 2021) (footnotes omitted).
Reviewing the sometimes-confusing law surrounding Texas’s “trespass to try title” cause of action, Brumley v. McDuff reasoned: “In substance and effect, the Brumleys sued for title to the disputed property. In describing their claim as an ‘action to quiet title,’ the Brumleys did not nullify the substance of their adverse possession allegations. A suit that seeks to resolve a title dispute is, in effect, an action in trespass to try title, whatever its form. Much as a party does not turn a trespass-to-try-title dispute into a declaratory-judgment action through artful pleading, a party does not forfeit its trespass-to-try title-action by inartfully naming it.” No. 19-0365 (Feb. 5, 2021) (footnotes omitted).
In an administrative-law case about a dispute between chiropractors and traditional physicians, a question of “standing” was raised, and again the Texas Supreme Court mentioned its recent Pike opinion.
“The [Chiropractic] Board characterizes [Tex. Gov’t Code] § 2001.038(a) as a ‘statutory standing’ provision. Constitutional standing is a prerequisite for subject matter jurisdiction. In Finance Commission of Texas v. Norwood, we treated § 2001.038(a) ‘as but another expression of the general[,] [constitutional] doctrine of standing.’ But last Term in Pike v. EMC Management, LLC, we discouraged the use of the term standing to describe extra-constitutional restrictions on the right of a particular plaintiff to bring a particular lawsuit. ‘[T]he question whether a plaintiff has . . . satisfied the requisites of a particular statute’, we said, ‘pertains in reality to the right of the plaintiff to relief rather than to the subject-matter jurisdiction of the court to afford it.'”
Texas Board of Chiropractic Examiners v. Texas Medical Association, No. 18-1223 (Jan. 29, 2021) (footnotes omitted).
A per curiam opinion, based on the Court’s recent opinion in Federal Home Loan Mortgage Co. v. Zepeda, 601 S.W.3d 763 (Tex. 2020), reminded about a lender’s equitable-subordination rights:
“[E]quitable-subrogation rights become fixed at the time the proceeds from a later loan are used to discharge an earlier lien. A lender’s negligence in preserving its rights under its own lien thus does not deprive the lender of its rights in equity to assert an earlier lien that was discharged using proceeds from the later loan. Although we considered the lender’s negligence in Sims, that analysis is limited to the lien-priority context.
Applying Zepeda to this case, the court of appeals erred in concluding that PNC’s failure to timely foreclose under the deed of trust bars its subrogation rights. The availability of better credit terms and interest rates can make refinancing an attractive financial tool for borrowers. Subrogation operates as a hedge against the risk of refinancing the outstanding amount of an existing loan, opening this credit market to borrowers. Subrogation permits a lender to assert rights under a lien its loan has satisfied when the lender’s own lien is infirm.” PNC Mortgage v. Howard, No. No. 19-0842 (Jan. 29, 2021) (citations omitted).
In a per curiam opinion issued without argument, the Texas Supreme Court reminded that it really meant its holding in Pike v. Texas EMC Management LLC, about the distinction between standing and capacity, as applied to the question whether a particular injury is suffered by the named plaintiff or the relevant business entity. Cooke v. Karlseng, No. 19-0829 (Jan. 22, 2021).
On January 15, the Texas Supreme Court granted an emergency stay in In re: Enven Energy Corp., No. 21-0030, as to the denial of a continuance motion involving COVID-19 issues. The parties’ briefs can be reviewed here, and the merits of the mandamus petition remain pending before the Court.
The Texas Supreme Court has accepted a certified question from the Fifth Circuit about an important issue of products-liability law involving Amazon. More details to follow.
In response to the latest phase of the COVID-19 pandemic, the City of Austin and Travis County enacted restrictions on restaurants and bars that are more restrictive than those established by the Governor’s latest order on that subject. The Third Court denied an interim stay and the State sought mandamus relief on January 1, 2021, arguing:
“The State has a sovereign right to the correct interpretation and enforcement of its laws, and a particular interest in the mitigation of disasters. Order 24 impinges on both. The Texas Disaster Act assigns the Governor both the responsibility for managing statewide disasters and extraordinary powers to meet those disasters. By issuing an order that contradicted the Governor’s, Mayor Adler and Judge Brown violated the State’s sovereign right to see the Act followed by its terms and its interest in seeing the consistent application of statewide COVID-19 recovery efforts. The court of appeals was required to issue Rule 29.3 relief to protect those interests pending appeal.”
In a brief order, the Texas Supreme Court granted a stay the next day – thereby making the first case filed in 2021 the first case resolved in 2021! In re: State of Texas, No. 21-0001 (Jan. 2, 2021).
The supreme court again reversed a lower-court finding of briefing waiver in Lion Copolymer Holdings v. Lion Polymers: “A party attacking the factual sufficiency of a finding on appeal must ‘demonstrate on appeal that the adverse finding is against the great weight and preponderance of the evidence.’ This is what Company did, even though it intertwined its analysis with a legal sufficiency complaint. Company identified the damages award, $361,295; evidence that would support that award; and countervailing evidence to argue that ‘the evidence is so weak that it is factually insufficient to support a finding that the Company owed [LP] any money.’ We therefore conclude that the court of appeals erred in holding that Company waived its factual sufficiency complaint by inadequately briefing the issue.” No. 19-0343 (Dec. 18, 2020) (per curiam).
