Conditionally granting mandamus relief from this order by the Fifth Court (a “lift-stay” order in a TCPA appeal), in In re Geomet Recycling, the Texas Supreme Court held:

“[T]o the extent EMR faced irreparable harm, it had an avenue available to it by which a court could provide a remedy without violating the statutory stay. It did not pursue that  remedy but instead asked the court of appeals to lift the stay in violation of [CPRC] section 51.014(b). EMR’s choice of an unsuited procedural mechanism does not create a constitutional problem we must address. And to the extent EMR did not face irreparable harm but simply wanted a hearing on the trial-court motions that had been pending when Geomet’s appeal triggered the stay, that is exactly what [CPRC] section 51.014(b) prohibits.”

It also observed: “Whether . . . an order under [TRAP] 29.3 referring a motion to the trial court for findings and recommendations would violate the statutory stay ‘of all trial court proceedings’ is a question the parties have not briefed and that we need not decide.” No. 18-0443 (June 14, 2019).

The much-watched Dallas case of Glassdoor Inc. v. Andra Group posed important questions about protection of anonymous speech online – here, posts on the popular job search website glassdoor.com – as well as the applicability of the TCPA to pre-suit discovery petitions under Tex. R. Civ. P. 202. The Texas Supreme Court, however, found that it “may not reach these issues . . . because the Rule 202 proceeding has been rendered moot by the fact that the petitioner’s potential claims against the anonymous speakers  are now time-barred as a matter of law.” No. 17-0463 (Tex. Jan. 25, 2019). Accordingly, the Fifth Court’s opinion stands as the law on the matter in Dallas (as persuasive authority rather than precedent, as the Texas Supreme Court vacated both the trial and appellate rulings), under which a Rule 202 petition can proceed when the record supports a finding “that the likely benefit of allowing [petitioner] to take a deposition about two anonymous reviews on [respondent’s] website outweighed the burden or expense of the procedure.”

Last year, we reported on the Dallas Court of Appeals’ decision to affirm the trial court’s denial of the Office of Attorney General’s plea to the jurisdiction in a Whistleblower Act case. Today, the Texas Supreme Court has reversed and rendered, holding that the whistleblower’s report to her superior at OAG was not made to “an appropriate law enforcement authority,” as required by the Whistleblower Act. The plaintiff’s pleadings therefore failed to properly invoke the Act, meaning that OAG’s sovereign immunity was not waived.

Office of the Attorney Gen. v. Weatherspoon, No. 14-0582

The Texas Supreme Court granted a baker’s dozen worth of petitions for review this morning, including two cases that first made their way through the Dallas Court of Appeals. In CTMI, LLC v. Fischer, the Court of Appeals held that the earn-out provision in an asset purchase agreement was unenforceable because it left the percentages to be used in calculating the earn-out subject to a future agreement. And in Staley Family Partnership v. Stiles, the Court of Appeals rejected an attempt to impose an easement by necessity because one of the two tracts of land was not being used at all when they were severed from each other in 1866.

Law360 writer Jess Davis takes a look at five Texas Supreme Court cases on the court’s argument calendar for this fall, and we were happy to pitch in with some punditry on a couple of them. The TV Azteca case is a really interesting mix of personal jurisdiction, defamation, pop superstardom, and international sex scandal, while BCCA has the potential to reshape the balance between the state legislature and home-rule municipalities. And while we’ll conspicuously refrain from comment on a couple of the other cases, all five are well worth following.

A year ago, the Dallas Court of Appeals affirmed the denial of an equitable bill of review in which the defendants claimed that the plaintiff had not exercised reasonable diligence in its attempts to effect service through registered mail and personal delivery. The Texas Supreme Court has now set aside that ruling, holding that the defendants had presented some evidence that their failure to receive notice of the default judgment resulted solely from the plaintiff’s failure to certify the defendants’ last known mailing address, and not from any negligence or fault on the defendants’ own part. The record contained evidence that the plaintiff’s owner had met with the defendants’ registered agent at their current address, rather than the outdated address on file with the Secretary of State, that raised a genuine issue of material fact as to the validity of the plaintiff’s “last known mailing address” certification.

Katy Venture, Ltd. v. Cremona Bistro, LLC, No. 14-0629

The U.S. Supreme Court may be poised to decide the validity of same-sex marriage bans nationwide, but the Texas Supreme Court has managed to have its voice heard to declare that it doesn’t have anything to say. Because the State of Texas was too late in seeking to intervene in a same-sex divorce, the Supreme Court held (5-3) that it could not appeal that decree. Justice Willett authored the lead dissent, which would have had the Court address the matter on the merits, while Justice Devine dissented on the merits of same-sex marriage under Texas law. So with that out of the way, everyone can turn their eyes back to 1 First St., NE.

State v. Naylor

Boyd concurrence

Willett dissent

Devine dissent

In August 2013, the Dallas Court of Appeals held that “viatical settlements” — basically, interests in bought and resold life insurance policies — were securities within the scope of the Texas Securities Act. Likely because of a conflict between that holding and a previous case out of the Waco Court of Appeals, the Supreme Court granted the petition for review and set the case for oral argument. This morning, the Supreme Court unanimously affirmed the Dallas court’s opinion, finally confirming that the trial court had erred in granting summary judgment for the defendants. The case was remanded for further proceedings, presumably including trial on the merits.

Life Partners, Inc. v. Arnold, No. 14-0122

Two years ago, the Dallas Court of Appeals ruled that PlainsCapital Bank was not entitled to judgment against a borrower because it based its deficiency claim on the price it obtained when the property was sold a year after foreclosure, rather than the fair market value of the property at the time it was foreclosed. Last summer, the Texas Supreme Court granted the bank’s petition for review and set the case for oral argument. This morning, the Supreme Court held that the Court of Appeals was correct in ruling that § 51.003 of the Texas Property Code controlled PlainsCapital’s deficiency claim. However, the Court also ruled that “fair market value” under the deficiency statute does not mean the price that a willing buyer would pay to a willing seller at the time of foreclosure. Because § 51.003(b)(5) permits the trier of fact to consider the forward-looking factor of discounts that may be applied to a future sales price, it was proper for the trial court to base its fair market value finding on the price the bank actually received in its post-foreclosure sale. The Supreme Court remanded to the Court of Appeals for consideration of additional issues.

Justice Boyd (joined by Justice Guzman) dissented, arguing that the majority had improperly cast aside the historical definition of fair market value, and that evidence of any future discounts in the sale price of the property was only relevant to consideration of the fair market value at the time of the foreclosure.

TLDR: To determine FMV at the time of foreclosure, you can look to values received in the future.

PlainsCapital Bank v. Martin (majority)

PlainsCapital Bank v. Martin (dissent)

In 2013, the Dallas Court of Appeals held that “viatical settlements” — basically, interests in life insurance policies purchased and then resold by Life Partners, Inc. — were securities subject to the Texas Securities Act. Given that the opinion expressly rejected a contrary holding from the Waco Court of Appeals, we predicted that this would be a good candidate for review by the Texas Supreme Court. And in fact, that court granted the petition for review today, consolidating the case for oral argument with another Life Partners case out of the Austin Court of Appeals. The argument has been set for January 15, and we will keep you posted when an opinion is issued.

Previously: Viatical Settlements Are Securities (Aug. 29, 2013)

One year ago, the Dallas Court of Appeals held that a homeowner’s negligence claims against the company that installed the home’s plumbing were barred by the economic loss doctrine. Today, the Texas Supreme Court has reversed that ruling in a per curiam opinion. Although the plumber’s liability to the homebuilder was contractual, the negligent performance of a contract that injures a non-party’s person or property is sufficient to state a claim for negligence. The Supreme Court reiterated that the economic loss rule does not permit a party to avoid tort liability to the rest of the world simply by entering into a contract with another person.

Chapman Custom Homes, Inc. v. Dallas Plumbing Co., No. 13-0776

The Texas Supreme Court today affirmed the Dallas Court of Appeals’ judgment in a wrongful death/asbestos case, which had vacated an $11.6 million plaintiff’s verdict. The majority opinion disagreed with the Court of Appeals’ holding that the plaintiff had to prove that the decedent would not have contracted mesothelioma but for his exposure to the defendant’s own product. Nevertheless, applying the “substantial factor” test for causation, the majority held that the plaintiff had still failed to provide legally sufficient evidence that the defendant’s product had caused the victim’s illness.

Bostic v. Georgia-Pacific Corp. (majority)

Bostic v. Georgia-Pacific Corp. (Guzman concurrence)

Bostic v. Georgia-Pacific Corp. (Lehrmann dissent)

Last November, the Texas Supreme Court reversed and remanded for further consideration in a case where the Dallas Court of Appeals had concluded that the plaintiff had sufficiently pleaded a waiver of sovereign immunity through the use of tangible property. The Supreme Court held that the plaintiff had not alleged a “use” of property for a whiteboard that fell on his head, because Dallas Metrocare had only made the board available for use by patients. On remand, the Court of Appeals had to consider the alternative question of whether the plaintiff’s claims alleged injury through a “condition” of property. The Court concluded that he had pleaded such a claim, based on the allegation that the whiteboard was in an unsafe condition because it was not properly secured. The case was therefore remanded to the trial court for further proceedings.

Dallas Metrocare Servs. v. Juarez, No. 05-11-01144-CV

Following up on last week’s decision that basically eliminated minority shareholder oppression claims (or more precisely, shareholder oppression remedies) in Texas, the state Supreme Court has reversed and remanded another such case that passed through the Dallas Court of Appeals a couple years ago. In Cardiac Perfusion Services, Inc. v. Hughes, the Court of Appeals had affirmed the trial court’s order of a $300,000 “fair value” buyout of the oppressed shareholder’s stock, holding that the majority’s oppressive conduct justified a departure from the “book value” buyout price provided for by the parties’ shareholder agreement. With court-ordered buyouts no longer a viable remedy for shareholder oppression claims, the Supreme Court vacated that portion of the judgment, but remanded the case to the trial court in the interests of justice in order to afford the minority shareholder an opportunity to try to establish liability under one or more of the alternative claims discussed last week in Ritchie v. Rupe.

Cardiac Perfusion Servs. Inc. v. Hughes, No. 13-0014

This morning’s decision by the Texas Supreme Court in Ritchie v. Rupe raises some pretty substantial questions about the continuing viability of claims for minority shareholder oppression in Texas. By way of background, the decision arises out of a dispute over a family-owned investment business, with the wife and heir of one of the deceased owners claiming that the other owners were hostile to her and told her that she would “never get any money in this family.” Wanting out of the company, she sought to sell her shares to an outside investor, but the majority shareholders refused to meet with any prospective purchasers, make the company’s records available, or otherwise assist in a sale. The jury found that conduct to be oppressive, and the trial court ordered a buyout of the minority’s shares for $7.3 million. The Dallas Court of Appeals affirmed the oppression ruling, albeit with a remand for further consideration of the valuation of the plaintiff’s shares.

In reversing that decision, Justice Boyd’s majority opinion for the Supreme Court first analyzed the case under the receivership statute, currently codified at section 11.404 of the Texas Business Organizations Code. That statute permits a court to appoint a receiver when “the acts of the directors or those in control of the corporation are illegal, oppressive or fraudulent . . .” Construing and rejecting previous cases that have considered the meaning of “oppressive” conduct, the court today holds that directors or managers engage in oppressive conduct “when they abuse their authority over the corporation with the intent to harm the interests of one or more of the shareholders, in a manner that does not comport with the honest exercise of their business judgment, and by doing so they create a serious risk of harm to the corporation” (emphasis added). Since shareholder oppression cases have typically focused on whether the minority shareholder has been improperly harmed, the additional question of whether the majority is putting the corporation itself at risk of harm appears to be a significant shift in the law. Because the directors here had legitimate business reasons for refusing to meet with prospective buyers, there was no “serious risk of harm to the corporation,” and therefore no oppression.

Perhaps even more significant are the Supreme Court’s other two holdings in the case. Besides the refusal to cooperate with the sale of her shares, the plaintiff also alleged that the defendants had engaged in other types of oppressive conduct. The court declined to consider those other acts, however, based on its determination that the receivership statute does not authorize the remedy of a buyout of the minority’s shares. Thus, a court may order the appointment of a receiver if the corporation itself is threatened with harm, but it cannot order a buyout just because the minority shareholder is being harmed by the majority’s business decisions. Finally, because the receivership statute does not permit a buyout, the court turned to the question of whether there is a common law cause of action (and remedy) for shareholder oppression, and concluded that there is not. Although the court recognized there Texas law should protect minority shareholders from “freeze-out” or “squeeze out” tactics of the majority, it held that there are already sufficient protections with remedies such as derivative lawsuits, shareholder agreements, and common law claims such as breach of fiduciary duty and accounting. Accordingly, there was no need to recognize a common law claim for minority shareholder oppression, and it therefore could not serve as the basis to order an equitable buyout of the minority’s shares. And in fact, the Supreme Court remanded the case for further consideration of the plaintiff’s breach of fiduciary duty claim.

Going forward, the majority opinion today imposes significant restraints on shareholder oppression claims, refocusing the claim on harm suffered by the company rather than its minority shareholders and eliminating the ability of courts to order buyouts, whether at fair market value or any other price. Lawyers and clients should also make careful note of the majority’s emphasis on the utility of shareholder agreements in providing for the kinds of contractual remedies that can provide in advance for buyout provisions and other remedies that would moot the need for any shareholder oppression claim. But as Justice Guzman’s dissent correctly notes, this is a decision that puts minority shareholders in a much weakened position when their personal interests clash with the decisions of the majority.

In what will certainly be seen as a landmark decision for Texas business law, the Supreme Court has issued its opinion today reversing the Dallas Court of Appeals in the case of Ritchie v. Rupe. As we noted a while back, the Court of Appeals had affirmed the trial court’s ruling that a minority shareholder was entitled to “fair market value” for her shares, including “discounts for lack of marketability and for the [s]tock’s minority position.” Today, the Supreme Court holds that it was not oppressive conduct for the majority shareholders to refuse to meet with prospective purchasers of the company, that the Business Organizations Code does not authorize courts to order a corporation to buy out a minority shareholder’s stock, and that there is no common-law cause of action for minority shareholder oppression. 

Ricthie v. Rupe (majority, by Justice Boyd)

Ritchie v. Rupe (dissent, By Justice Guzman)

The Texas Supreme Court has also granted the petition for review in another case involving foreclosure sales, deficiencies, and section 51.003 of the Property Code. In Martin v. PlainsCapital Bank, the Dallas Court of Appeals reversed judgment in favor of a lender that sought to recover a deficiency because the bank had based its deficiency claim on the price it resold the property for, rather than the price it had paid over a year earlier at the foreclosure sale. Oral argument has been set at the Supreme Court for September 18.

The Texas Supreme Court has unanimously affirmed the judgment of the Dallas Court of Appeals on petition for review from the case of Interstate 35/Chisam Road L.P. v. Moayedi. As regular readers will recall, Moayedi was the first of a string of cases from Dallas holding that borrowers and guarantors had contractually waived their statutory right to offset any deficiency if the foreclosure sale resulted in a price less than the collateral’s fair market value. Justice Willett, writing for the Supreme Court, agreed with that analysis, holding that section 51.003 of the Texas Property Code creates an affirmative defense that the borrower or guarantor can validly waive through a general waiver of defenses in the lending instruments. Unless the Legislature decides to step in, businesses and individuals can expect to see such waiver clauses become standard practice in property financing transactions.

Moayedi v. Interstate 35 Chisam Road LP, No. 12-0937

Two years ago, the Court of Appeals reinstated a $125 million arbitration award that the trial court had set aside on the basis of evident partiality, after one of the three arbitrators failed to disclose the full extent of his ties to the claimant’s attorneys.  Our report on that decision is here: A Bonanza for Ponderosa. After this morning’s orders from the Texas Supreme Court, that bonanza is no more. That court has reversed the Court of Appeals’ judgment, reinstated the trial court’s order vacating the arbitration award, and will permit the case to once again be arbitrated before a new panel.

Tenaska Energy, Inc. v. Ponderosa Pine Energy, LLC, No. 12-0789

Early last year, the Texas Supreme Court granted four petitions for review out of the Dallas Court of Appeals on the same day. Today, the Supreme Court issued opinions in two of those cases, reversing them both. In Kia Motors Corp. v. Ruiz, the Supreme Court affirmed the Court of Appeals’ holding that the manufacturer was not entitled to a presumption against liability due to the vehicle’s compliance with federal crashworthiness standards. However, the Court reversed and remanded for a new trial because the trial court should not have admitted a spreadsheet containing summaries of many different warranty claims on vehicle airbag circuitry, most of which were dissimilar to the plaintiffs’ claimed defect. And in Bioderm Skin Care v. Sok, the Supreme Court reversed the Court of Appeals’ holding that the victim of a botched laser hair removal procedure was not required to submit an expert report, holding that the claim was indeed subject to the Texas Medical Liability Act because the laser could only be purchased by a licensed medical practitioner and required extensive training to operate. The case was therefore remanded for consideration of the defendants’ attorney fees and costs.

Last year, the Dallas Court of Appeals held that a plaintiff had properly alleged a waiver of sovereign immunity for a government body’s use or condition of tangible personal property, based on the allegation that an improperly secured whiteboard had fallen on the plaintiff. Dallas Metrocare Services v. Juarez, ___ S.W.3d ___ (Tex. App.–Dallas 2012). The Texas Supreme Court has now reversed that decision, citing its more recent decision in Rusk State Hospital v. Black, 392 S.W.3d 88 (Tex. 2012), for the proposition that the Court of Appeals should have considered Metrocare’s argument on appeal — not raised before the trial court — that the injury did not arise from the “condition” of the property. The Supreme Court also held that there was no waiver of immunity by Metrocare’s “use” of the whiteboard, since it had simply made the board available for use by patients. The case will now be remanded to the Court of Appeals for further consideration.

Dallas Metrocare Services v. Juarez, No. 12-0685

The Texas Supreme Court has also granted the petition for review in another case from the Dallas Court of Appeals. In Ponderosa Pine Energy, LLC v. Tenaska Energy, Inc., 376 S.W.3d 358 (Tex. App.–Dallas 2012, pet. granted), the Court of Appeals reinstated a $125 million arbitration award that had been vacated by the trial court. The Court of Appeals concluded that the defendant had waived its ability to challenge the “evident partiality” of one of the arbitrators by failing to investigate the arbitrator’s disclosures until after the panel had made its award. Oral argument at the Supreme Court has been set for January 7. 

Readers of the blog will probably be familiar with our “Waive Goodbye” series of posts on the Dallas Court of Appeals’ recent line of cases holding that borrowers and guarantors can contractually waive their statutory right to offset any deficiency if foreclosed property is sold for less than its fair market value. The Texas Supreme Court has now granted the petition for review in the first of those cases, Interstate 35/Chisam Road L.P. v. Moayedi, 377 S.W.3d 791 (Tex. App.–Dallas 2012, pet. granted). Oral argument has been set for January 8, and we will continue to keep our eyes on the issue.

The pace of opinions from the Court of Appeals has slowed down during the fall, but there is still news from the Texas Supreme Court. This morning, that court granted the petition for review in Farmer’s Insurance Exchange v. Greene. In August 2012, the Dallas Court of Appeals sided with the insurer in holding that a homeowner’s damages were barred by a vacancy clause in the insurance contract, which excluded liability for damages that occurred more than 60 days after the residence became vacant. The Court of Appeals rejected the insured’s claim that the exclusion did not apply because the vacancy of the home did not contribute to the fire that destroyed it. Oral argument at the Supreme Court is set for December 4, and you can find the parties’ briefs at the link below.

Greene v. Farmer’s Ins. Exch., No. 12-0867

It’s not a Dallas Court of Appeals case, but the Texas Supreme Court this morning issued an opinion further limiting a trial court’s discretion to grant a new trial. The Supreme Court had previously required trial courts to issue written explanations of their reasons for granting a motion for new trial. In re Columbia Med. Ctr. of Las Colinas, Subsidiary, L.P., 290 S.W.3d 204 (Tex. 2009). Now, the court has held that if the record does not support the trial court’s explanation, the appellate courts may grant mandamus relief and order the trial court to render judgment on the jury’s verdict.

In re Toyota Motor Sales, U.S.A., Inc., No. 10-0933

Two years ago, the Dallas Court of Appeals held that the statutory “assumption of the risk” defense (CPRC § 93.001) superseded the common law “unlawful acts” doctrine, which provided that plaintiffs cannot recover damages if, at the time of injury, they were engaged in an illegal act that contributed to the injury. Gulf, C. & S.F. Ry. Co. v. Johnson, 9 S.W. 602, 603 (Tex. 1888). The unlawful acts doctrine is typically invoked in legal and medical malpractice cases. This morning, the Supreme Court decided the same case on different grounds, holding that the Proportionate Responsibility Act negates the common law doctrine and instead requires the finder of fact to apportion responsibility between the lawbreaking plaintiff (or, in this case, the decedent) and the defendant. The illegal activity in this instance was the consumption of marijuana and heroin, which led to the death of Joel Martinez, the son of plaintiff Mary Ann Arredondo. The mother sued the son’s friend, Geoffrey Dugger, who had failed to tell the paramedics that Martinez had snorted the heroin. Dugger initially escaped liability completely when the trial court granted summary judgment in his favor based on the unlawful acts doctrine. The Court of Appeals reversed, holding that § 93.001 superseded the common law doctrine, but did not apply under the facts of the case. On petition for review, the Supreme Court has now held that the Proportionate Responsibility Act applies even where the statutory assumption of the risk defense does not apply. Thus, a jury will have to apportion responsibility between the lawbreaking decedent and his partner in recreational drug consumption. However, the court expressly limited its holding to personal injury and wrongful death cases, leaving open the question of whether a client’s illegal acts will continue to serve as a complete bar to legal malpractice claims.

Dugger v. Arredondo, No. 11-0549

In July 2011, the Dallas Court of Appeals ruled — in a rare en banc opinion — that an arbitration clause contained in a testamentary trust could not be enforced because there was no contract with the trust’s beneficiary to arbitrate his claims. Rachal v. Reitz, 347 S.W.3d 305 (Tex App.-Dallas 2011). This morning, the Texas Supreme Court reversed that decision, holding that the beneficiary was bound to arbitrate his claims against the trustee due to the doctrine of direct benefits estoppel. In brief, that doctrine means that if the plaintiff accepts the benefits of the trust, he also has to accept the arbitration clause contained in the trust. In reaching that decision, the Supreme Court noted that the Texas Arbitration Act requires an “agreement” to enforce arbitration, not a “contract” with the claimant. Such an agreement could be satisfied through direct benefits estoppel, as the beneficiary failed to disclaim his interest in the trust, thereby accepting both its benefits and its burdens.

Rachal v. Reitz, No. 11-0708

In 2011, the Dallas Court of Appeals affirmed the trial court’s dismissal of an inverse condemnation suit, holding that the former owners of the property did not have a compensable interest merely because they had the right to repurchase it if the City of McKinney ceased using it as a park. That right was invoked when the city decided to build a library on a portion of the property, but the city defended the subsequent takings suit by arguing that the substance of the claim was really a breach of contract for which no sovereign immunity had been waived. On petition for review, the Texas Supreme Court has rejected that argument, holding that the former owners’ deed conveyed a “defeasible estate” to the City, and that the former owners retained a “conditional future interest” in the property. According to the Supreme Court, that was not simply a contractual right, but a property interest that was indeed compensable as a taking. The Supreme Court therefore reversed the judgment of the court of appeals and remanded the case to the trial court to determine whether and to what extent building the library had actually constituted a taking of the property.

El Dorado Land Co., L.P. v. City of McKinney, No. 11-0834

Today was a good day to be petitioning for review from the Dallas Court of Appeals. The Texas Supreme Court granted six petitions for review today, and the first four on the list all came from the Fifth Court of Appeals. Here are brief summaries of the four cases.

Georgia Pacific Corp. v. Bostic, 320 S.W.3d 588, is a wrongful death/asbestos case in which the court of  which the court of appeals reversed an $11.6 million plaintiff’s verdict. The court held that there was legally insufficient evidence that Georgia Pacific’s product was a “substantial factor” in causing the decedent’s mesothelioma, where the man had been exposed to multiple sources of asbestos and  the plaintiffs’ own expert could not say that he would not have developed the disease without that exposure. The petition for review challenges that rulling, arguing that an asbestos plaintiff need not establish that the exposure to the defendant’s product was the exposure that precipitated the illness.

Kia Motors Corp. v. Ruiz, 348 S.W.3d 465, is a products liability case in which the court of appeals affirmed a plaintiff’s judgment based on negligent design of a vehicle. The court rejected Kia’s contention that it should have a presumption of no liability because the car’s design complied with federal crashworthiness standards. The petition for review challenges that holding, as well as the evidence supporting the alleged defect.

Bioderm Skin Care, LLC v. Sok, 345 S.W.3d 189, concluded that laser hair removal for cosmetic purposes was not a healthcare service under Chapter 74 of the Civil Practice & Remedies Code, and that the plaintiff therefore did not need to produce an expert report within 120 days after the filing of her petition. Naturally, the petition for review asserts that laser hair removal is indeed the type of health care claim that requires an expert report.

Finally, in Martin K. Eby Construction Co. v. LAN/STV, 350 S.W.3d 675, the court of appeals affirmed a jury verdict awarding damages in favor of a general contractor and against its subcontractor, overruling both sides’ complaints about the judgment. The court rejected the general contractor’s claim that its own negligence and the negligence of DART should not have reduced its recovery against the defendant, while also sustaining the sufficiency of the evidence and denying the sub’s attempt to use the economic loss doctrine to bar the general contractor’s recovery. The petition for review focuses on the economic loss issue.

Surprisingly, both Georgia Pacific and Bioderm were granted on motion for rehearing after the petitions were originally denied last October.  Oral argument dates have not been set for any of the four cases.

The Dallas Court of Appeals’ recent series of shareholder oppression cases is making its way to the Texas Supreme Court.  Today’s list of petitions granted included Ritchie v. Rupe, in which the Dallas Court of Appeals held that held a minority shareholder who had sought to leave the company was entitled to “fair market value” for her shares, including “discounts for lack of marketability and for the [s]tock’s minority position.“  That holding was quite different than the subsequent opinion in Cardiac Perfusion Services, Inc. v. Hughes, in which the court of appeals held that the minority shareholder was entitled to a “fair value” buyout, with no discounts, because the shareholder was being forced out of the company.

You can find links to the parties’ briefs in the Ritchie case here.  Oral argument is set for February 26.  In the meantime, the motion for rehearing at the court of appeals is still pending in the Cardiac Perfusion case.

The Texas Supreme Court will be down to eight justices again at the end of this month, as Justice Dale Wainwright announced his resignation from the court last week.  Justice Wainwright served on the court for almost a decade.  He authored a number of important opinions during that time, including Texas Department of Parks and Wildlife v. Miranda and Severance v. Patterson.  I had the honor of serving as his law clerk during the 2009-10 term, where I was able to see the strength of his convictions and his passion for the law first-hand.  We wish him well in his future endeavors.

The Texas Supreme Court has granted the petition for review in an inverse-condemnation case from the Dallas Court of Appeals.  In El Dorado Land Co., L.P. v. City of McKinney, the court of appeals affirmed the trial court’s determination that the plaintiff had failed to plead a compensable interest in a deed restriction for a piece of real property.  El Dorado had sold the property to the city on the condition that it only be used for a community park, but ten years later the city built a library on it instead.  According to the court of appeals, El Dorado could not sue for condemnation because it did not have a vested interest in the property at the time of the taking, despite a contractual option to repurchase the property if the city ever breached the deed restriction.  That was so, the court of appeals held, because “a claim for inverse condemnation under article I, section 17 of the Texas Constitution has traditionally involved interests in real property and not the alleged taking of property interests created under contract.”  The Supreme Court will now have the opportunity to determine whether a contractual option to purchase is a sufficient interest in property to support a takings claim.  The case is set for oral argument on January 9, 2012.

You can find the parties’ briefs here.

Amid a flurry of post-summer break opinions today, the Texas Supreme Court issued one decision in a case from the Dallas Court of Appeals.  In U-Haul International, Inc. v. Waldrip, the court of appeals had reversed and rendered an $11.7 million award of exemplary damages, but left intact $21 million in compensatory damages.  The case arose out of an accident in which a truck with a damaged transmission and an inoperable parking brake rolled over the plaintiff as he was exiting the vehicle.  In its decision today, the Supreme Court reversed the trial court’s judgment even further, rendering judgment for the defendants on the plaintiff’s claims for gross negligence and remanding the negligence claims for a new trial.  The key error cited by the Supreme Court was the trial court’s admission of evidence concerning U-Haul’s safety practices in Canada, little of which had to do with faulty parking brakes or transmissions.  The Supreme Court held that the erroneous admission of that evidence probably caused the rendition of an improper judgment because, among other reasons, plaintiff’s counsel had advocated for its inclusion over the defendants’ objections.  Thus, the case was remanded to the trial court for a new trial on negligence. Justice Lehrmann dissented.

U-Haul International, Inc. v. Waldrip, No. 10-0781