In Li v. Pemberton Park Community Association, an opinion finding that a pro se litigant did not waive an argument about uneven enforcement of housing rules, the Court reminded: “[P]arties on appeal need not always ‘rely on precisely the same case law or statutory subpart’ on which they relied below. And while appellate courts ‘do not consider issues that were not raised . . . below,’ parties may ‘construct new arguments in support of issues’ that were raised.” No. 20-0571 (Oct. 1, 2021) (per curiam).
More Liens
After a supreme court opinion earlier this year, the Fifth Court revisited the question whether PNC’s effort to foreclose a subrogation lien claim was time-barred. It held:
- Accrual. Recognizing that “Texas case law gives conflicting answers to this issue,” the Court concluded that “the correct result is the one first reached by Kone in 1927. The lender’s cause of action to enforce its subrogation lien rights accrues on the date the refinancing loan matures.” (citing Kone v. Harper, 297 S.W. 294 (Tex. App.–Waco 1927, aff’d, 1 S.W.2d 857 (Tex. Comm’n App. 1928)).
- Limitations period.The Court applied the four-year statute that governs other lien actions, reasoning: “PNC cannot, in the name of equity, have more rights than the party to which it is subrogated, and those rights are subject to the same defenses the borrower would have had against the original lender.”
PNC Mortgage v. Howard, No. 05-17-01484 (Sept. 17, 2021).
Salute to Osler McCarthy
The Texas Supreme Court’s longtime staff attorney for public information, Osler McCarthy, retires on August 31 after many years of dedicated service. I wanted to salute his hard work and share a well-written tribute to him recently prepared by former Chief Justice Wallace Jefferson.
Of Masks and Men
The present state of mask-mandate litigation as defined by a supreme court order yesterday:
Promising Special Exception for Unfair-Competition Case
Footnote 3 in the Dallas Court of Appeals’ recent en banc majority opinion from Steward Health Care System v. Saidara suggests a promising special exception in cases with general allegations about unfair competition:
Appellants do not specify the branch of “unfair competition” they allege. See, e.g., James E. Hudson, III, A Survey of the Texas Unfair-Competition Tort of Common-Law Misappropriation, 50 BAYLOR L. REV. 921, 924–26 (1989) (noting Texas common law recognizes three branches of unfair competition: palming off, trade-secret misappropriation, and common-law misappropriation); RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 40 cmt. a (AM. LAW INST. 1995) (stating that unfair competition includes torts for misappropriation, infringement, unjust enrichment, and breach of confidence, but not breach of contract, breach of the duty of loyalty owed by an employee or other agent, or breach of confidence not involving a trade secret). Rather, they generally refer to their claim as “Unfair Competition” and contend that “by misleading Steward with their misrepresentations that Prospect intended to buy the assets of Southwest General and thereby inducing Steward to make Southwest General’s most sensitive business information available to Prospect senior executives and ultimately all of Prospect, Prospect and Saidara have engaged in conduct that is contrary to honest practices in commercial matters.”
Mandamus Here, Not There
The supreme court’s August 19 order in a mask-mandate case:
reminds of a basic rule of mandamus procedure, Tex. R. App. P. 52.3(e):
Reading the Cards About SCOTX and Masks
Relying on my fortune-telling skills (right), I offer these thoughts on the recent Texas Supreme Court orders in the ongoing mask litigation:
- The court could have effectively ended the litigation with a complete stay, as it did last week in the “arrest the legislators” case.
- It didn’t do that. Instead, it let temporary injunction hearings go forward in both Bexar and Dallas Counties. The Bexar hearing is today.
- A decent guess is that there is division of opinion on the court and this order is a rough compromise, among: (a) Justices who would have ruled for the Governor (who “got something” in the form of the initial TROs being vacated; (b) Justices who want to further consider the evidence (or lack thereof) (and who “got something” by the TI hearings proceeding; and (c) Justices who were willing to “kick the can down the road” until after the TI hearings.
Carl Sandburg and Mask Mandates
An old lawyers’ adage, sometimes attributed to Carl Sandburg, says in part: “If the facts are against you, argue the law. If the law is against you, argue the facts. …” Such are the battle lines in the Dallas County mask-mandate case now before the supreme court, in which the real-party-in-interest county judge points to an extensive affidavit and the support of several amici, while the SG’s office laser-focuses on the terms of the Government Code.
Look homeward, legislators
In response to a mandamus petition by the Texas AG, the supreme court stayed a trial-court order that had enjoined the potential arrest of Democratic legislators who are avoiding the second special session. A prompt response was also requested.
Legislature, Heal Thyself
In In re Turner, the Texas Supreme Court denied a mandamus petition about the Governor’s line-item veto of Legislative funding, observing: “While the interference by one branch of government with the effectual function of another raises concerns of separation of powers, the issue presented here is primarily one of differences among legislators. Although the Governor certainly seeks to advance legislation he favors, the majority of the members of the Legislature support the same legislation. Relator House members oppose that legislation and have broken quorum to further their opposition. It appears from the record of the special session that they could have restored Article X funding for the Legislature had they been present to vote to do so. They have chosen to continue to absent themselves in order to prevent passage of voting legislation.” No. 21-0538 (Aug. 9, 2021) (per curiam) (emphasis added).
