Transcript The Role of Judge & Jury

Texas Supreme
Court Update
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Arbitration
Forum / Venue
Discovery
Habeas
Expert Reports
Other
Court Changes
Court Changes
Justice Eva Guzman
Family District Court Judge (1999-2001)
14th Court of Appeals (2001-2009)
900 opinions (4 of 12 dissents successful)
Court Changes
Court Changes
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Court Changes
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Total Opinions
Jefferson
Hecht
O'Neill
Wainwright
Brister
Medina
Green
Court Changes
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Per Curiam Opinions
Jefferson
Hecht
O'Neill
Wainwright
Brister
Medina
Green
Johnson
Willett
Court Changes
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Dissenting Opinions
Jefferson
Hecht
O'Neill
Wainwright
Brister
Medina
Green
Johnson
Court Changes
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Majority Opinions
Jefferson
Hecht
O'Neill
Wainwright
Brister
Medina
Green
Johnson
Willett
Arbitration
In re Morgan Stanley
2009 WL 1901635 (Tex. 2009)
Case: Customer signs contracts with arbitration
clause, later declared incompetent.
Issue: Who decides whether client was
competent when agreed to arbitration?
Holding: TC decides, not arbitrator.
Arbitration
In re Houston Pipe Line
,2009 WL 1901640 (Tex. 2009)
Case: TC allows discovery on liability and
damages before motion to compel arbitration.
Issue: Was discovery proper?
Holding: No. Discovery strictly limited to
deciding motion to compel.
Pre-Suit Appraisal
St. Farm v. Johnson,
2009 WL 1900538 (Tex. 2009)
Case: Property policies all include pre-suit
appraisal requirement.
Issue: Can appraisers decide causation?
Holding: Appraisers decide damages, courts
decide liability. Check after appraisal to see if
appraisers went too far.
Forum Selection Clause
In re Int’l Profit,
268 SW3d 921 (Tex. 2009)
Case: Contract sets disputes for Illinois, suit
filed in Dallas.
Issue: Must forum-selection clause be
specifically pointed out?
Holding: No. Parties are presumed to read
their own contracts.
Limitations
Ditta v. Conte,
2009 WL 1566989 (Tex. 2009)
Case: Suit to remove trustee more than 4 years
after improprieties began.
Issue: What is the limitations period for
removing a trustee?
Holding: Like divorce, there is no statute of
limitations.
Noncompetes
Mann Frankfort v. Stein,
(Tex. 2009)
Case: Accounting firm requires employee to
“buy” clients he takes if he leaves.
Issue: Is there are enforceable noncompete?
Holding: Yes. Even if employer does not
expressly promise to provide confidential
information, it can be implied from nature
of the work.
Corporate Knowledge
Chrysler Ins. v. Greenspnt. (Tex.
2009)
Case: Defamation suit. Insurer denies coverage
under known-falsity exclusion.
Issue: Can a corporation know of defamation
when its officers did not?
Holding: Yes. Acts and knowledge of viceprincipal are acts and knowledge of entity.
Corporate Structure
SSP v. Gladstrong,
275 SW3d 444 (Tex. 2009)
Case: Products suit against US importer/
subsidiary of Hong Kong manufacturer.
Issue: Can importer be liable for taking part in
“single business enterprise”?
Holding: No. “Creation of affiliated
corporations to limit liability while pursuing
common goals lies firmly within the law.”
Derivative Suits
In re Schmitz,
285 SW3d 451 (Tex. 2009)
Case: Demand preceding derivative suit
Issue: Must pre-suit demand: (1) name a
shareholder, and (2) give details of claim?
Holding: Yes. Statute requires (1) current
shareholder, and (2) complaint stated “with
particularity.”
Evidence
Reliance v. Sevcik,
267 SW3d 867 (Tex. 2008)
Case: Car wreck. P not seeking punitives,
but proves D’s gross sales were $2 billion.
Issue: Harmful error?
Holding: Yes. Wealth generally inadmissible.
Hard to claim evidence harmless when went
to great effort to introduce it.
New Trial
In re Columbia Med. Ctr,
290 SW3d 204 (Tex. 2009)
Case: TC grants new trial “in the interests of
justice”
Issue: Must TC state reasons?
Holding: Yes. Trial judge cannot substitute
own views for those of the jury without
explaining reasons.
Texas Supreme
Court Update
Supreme Court of Texas Update:
The train has left the station.
Is it on the right track?
Joseph M. Cox
Patton Boggs, LLP
[email protected]
Patton Boggs, LLP
2001 Ross Avenue, Suite 3000
Dallas, Texas 75201
214.758.3417
Attorney’s fees
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Smith v. Tam Trust, No. 07-0970, Oct. 23, 2009
Can TC, as a matter of law, award attorneys’ fees if uncontroverted?
In this case, P puts in evidence of $62k for attorneys fees on $215k in
damages
Jury gives $65k in damages and $0 in atty’s fees
TC affirms damages award and vacates $0 finding on atty’s fees; CA reverses
award on atty’s fees and gives full amount because fees were uncontroverted
TSC – reverses CA and states fee “was unreasonable in light of the amount
involved and the results obtained, and in the absence of evidence that such
fees were warranted due circumstances unique to case”
Evidence raised a fact issue since fees were unreasonable based upon results
obtained
No evidence supports jury award of $0
ARBITRATION
Do unconscionable terms matter?
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Even if the arbitration provisions have grossly unconscionable
terms, the matter still has to go to arbitration?
In re Poly America, L.P., 262 SW3d 337 (August 2008)
TC compels arbitration and Plaintiff files a mandamus
Wait a minute – cannot appeal when TC compels arbitration,
right?
Wrong! See dissent of Justice Brister – “Apparently, so long as
one expresses qualms, Palacios is a dead letter.”
Provisions of limitation of remedies is unconscionable but
arbitrator to decide if fee-splitting and discovery limits are
unconscionable but SCT does not see them on their face as
being unconscionable
When is mandamus available?
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Justice Brister gets his revenge and actually writes an opinion on
when a party can use mandamus in relation to a TC compelling
it?
In re Gulf Exploration, April 17, 2009
“We granted oral argument to address more specifically when
mandamus relief is available in connection with orders
compelling arbitration.”
“To be entitled to mandamus, ‘a petitioner must show that the
trial court clearly abused its discretion and that the relator has no
adequate remedy by appeal.’ ” citing In re McAllen Medical
Center, 275 SW3D 458 – Wainwright dissent, “A whole new
world …”
Who wrote majority for In re McAllen Medical Center?
Trial court and discovery
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TC can order pre-arbitration discovery that
relates to the scope of the underlying claim?
In re Houston Pipe Company (July 3, 2009)
TC ordered pre-arbitration discovery that went
to the merits of the case as to scope of claim
prior to ruling on motion to compel arbitration
CA affirmed
SCT reversed – TC should have ruled on
arbitration issue and not allowed discovery
The fun continues!
Trial
and jury issues
Ready, willing and able
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Party must get jury finding on ready, willing and
able in order to recover damages?
DiGiuseppe v. Lawler, 269 SW3d 588
Argued 10/20/05; decision 10/17/08
Must get jury finding on ready, willing and able
– if allegations were the equivalent of proof,
there would be no need for trials
Vigorous dissent – the Court misrepresents the
rule in Buford case
Evidence of gross sales
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It can be error to admit evidence of gross annual
sales of a company when there is no claim for
punitive damages?
Reliance Steel v. Sevcik, 267 S.W.3d 867
Error to admit evidence of gross annual sales
“Neither a plaintiff’s poverty nor a defendant’s
wealth can help a jury decide whose negligence
caused an accident.” opening line of case
Contractual jury waivers
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There is a presumption against a contractual jury
waiver?
In re Bank of America, N.A. (278 SW3d 342 )
Just like arbitration provision, there is no
presumption against jury waivers in contract
A bench trial is another form of alternate
dispute resolution as court of appeals erred in
distinguishing jury waivers from arbitration
clauses
Motion for new trial
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Signing a scheduling order instead of an order
granting a new trial meets criteria of TRCP
329b(c)?
In re Lovito-Nelson (278 SW3d 773)
Per curiam
Scheduling order does not meet criteria of
329b(c) unless it specifically states in the order
that the motion for new trial has been granted
In the interests of justice
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Can trial judge grant a new trial in the “interests
of justice” without stating reasons?
In re Columbia Medical Center (July 3, 2009)
In re Baylor Medical Center at Garland (7/3/09)
In re E.I DuPont (7/3/09)
TC must state its reasons as to why motion for
new trial is granted
Broad to considerable to significant to great
discretion given to trial judges
Focus on Justice Brister
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Does Justice Brister have a heart?
Tanner v. Nationwide (April 17, 2009) – he dissents
and so you think not – plaintiffs verdict upheld (Tanner
took default against Gibbons relating to high speed car
chase of Gibbons by police)
Hagen v. Hagen (May 1, 2009) – he dissents and you
will see that he does – this case is a modification of
divorce decree (majority held VA benefits not the same
as military retirement benefits and pours out ex-wife)
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Dallas County v. Posey (May 22, 2009)
Posey hung himself with phone cord in cell
Parents sue county – had evidence that county had
ordered replacement of all corded phones
County files pleas to jurisdiction – TC and CA deny the
plea
SCT says that use of a phone cord is not tangible
personal or real property to waive immunity – Posey
used the cord not the governmental agency
Forum
Clauses
Selection
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Does a defendant have to prove that it showed the
forum selection clause to the plaintiff in order for the
clause to be effective?
In re International Profit Associates (June 12, 2009 per
curiam)
TC ordered that defendant had to prove that it showed
f.s.c. to plaintiff and denied motion to dismiss on f.s.c.
(CA affirmed)
SCT – TC abused its discretion in ordering this
Another In re Int’l Profit f.s.c. case (274 SW3d 672) - SCT found f.s.c. valid
Chapter 33
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Galbraith Engineering Consultants, Inc. v. Pochuca
(June 26, 2009)
Case involves construction and design defects of a
home built in 1995
Pochucas sue builder who names engineer as a RTP
under Ch. 33, then Pochuca sues engineer
Engineer says post 10 years therefore you cannot sue
me
SCT – correct as Chapter 33 does not revive claim
barred by statute of repose
Expert testimony
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Is an objection at trial necessary to preserve error on expert
testimony?
Apparently not so says SCT in City of San Antonio v. Pollock
(May 1, 2009) – benzene case
Pollock’ daughter developed acute lymphoblastic leukemia
No objection to expert at time of trial but objection first alleged
at appellate level
All parties agree that expert’s analysis was reliable but on appeal
testimony is challenged as conclusory
SCT does factual sufficiency review (in my opinion) of each
expert and deems them inadequate as a matter of law despite no
objection at trial