June 19, 2015

June 19, 2015

Today, the Texas Supreme Court released 3 opinions, accepted certified questions from the U.S. Court of Appeals for the Fifth Circuit, and granted a petition for review.

State of Texas v. Naylor , Case 11-0114, and In re State of Texas, Case 11-0222: http://www.txcourts.gov/media/1001370/110114.pdf

In this consolidated opinion on an appeal and original petition for mandamus from the State of Texas's intervention in a divorce of a same-sex marriage granted in a sister state, the Court effectively utilized the judicial doctrine of constitutional avoidance using jurisdictional issues to punt on reaching the deeper constitutional questions posed in this case. The Court affirmed the court of appeals, finding the State of Texas filed its intervention too late, thus depriving it of standing and jurisdiction. The Court also denied the State's original petition for mandamus, which was filed, not in the court of appeals, but in the Supreme Court after the court of appeals ruled against it.

Boeing Co. v. Paxton , Case 12-1007: http://www.txcourts.gov/media/1001374/121007.pdf

Boeing appealed the Attorney General's determination that information related to its leasing of property at the former Kelly Air Force Base in San Antonio was not protected from a public information request disclosure under the competitive advantage exception to the Public Information Act, see Tex. Gov't Code §552.104. The court of appeals decided that this exception only protected the interests of the state and not persons who bid on state contracts. The Court reversed the holdings of the trial court and court of appeals that the information was subject to disclosure. Instead, the Court held that §552.104's exception permitted a private party a right and standing to sue to prevent the release of its "competitively sensitive" information.

Suarez v. Texas City , Case 13-0947: http://www.txcourts.gov/media/1001376/130947.pdf

This case involves the intersection of the Recreational Use Statute and the Texas Tort Claims Act. The surviving spouse and mother of the decedents alleges that the drowning deaths at a beach resulted from a peculiar risk of harm created by a confluence of artificial and natural conditions at the beach and that the municipality was grossly negligent in failing to warn or protect the public against those dangers. The city filed a plea to the jurisdiction claiming sovereign immunity. When gross negligence is alleged, immunity is waived only if the governmental entity (1) knew about a condition of the property giving rise to an extreme degree of risk and (2) proceeded with conscious indifference to the rights, safety, or welfare of others. The trial court denied the plea but the court of appeals reversed and dismissed the claims. The Texas Supreme Court affirmed the court of appeals, finding no evidence that the municipality had knowledge of concealed conditions at the beach creating an extreme risk of harm.

Garofolo v. Ocwen Loan Servicing, L. L. C., Case 15-0437:

In this Certified Question from the Fifth Circuit, Appellant asserts that the Appellee failed to provide her a promissory note or release of the lien after she fully paid her home equity note. Appellant alleges that this deficiency violates Article XVI, § 50(a)(6)(Q)(vii) of the Texas Constitution, which provides that the lender must cancel and return the promissory note to the owner and give a release. However, Appellee argues that the Appellant has misinterpreted the requirements of Article XVI, has failed to prove any cognizable damages, and, in any case, provides insufficient grounds for the drastic remedy of forfeiture of principal and interest.

As framed by the Fifth Circuit, the questions are:

1. Does a lender or holder violate Article XVI, § 50(a)(6)(Q)(vii) of the Texas Constitution, becoming liable for forfeiture of principal and interest, when the loan agreement incorporates the protections of § 50(a)(6)(Q)(vii) but the lender or holder fails to return the cancelled note and release of lien upon full payment of the note and within 60 days after the borrower informs the lender or holder of the failure to comply?

2. If the answer to Question 1 is "no," then, in the absence of actual damages, does a lender or holder become liable for forfeiture of principal and interest under a breach of contract theory when the loan agreement incorporates the protections of § 50(a)(6)(Q)(vii) but the lender or holder, although filing a release of lien in the deed records, fails to return the cancelled note and release of lien upon full payment of the note and within 60 days after the borrower informs the lender or holder of the failure to comply?

Campbell v. Wilder , 14-0379:

In this Petition for Review that was granted today, Petitioners allege that a clerk began collecting court costs from indigent-per-se parties, violating of Texas Rule of Civil Procedure 145, and they further claim that the district court had the right to issue a temporary injunction against the clerk's collection policy. However, Respondents maintain that only the family courts that issued the underlying judgments have the power to issue such injunctions. See Tex. Civ. P. & Rem. Code § 65.023 (providing that an injunction to stay the execution of a judgment may only be issued by the court that rendered the judgment). The Supreme Court's decision in Campbell will clarify: (1) how pro bono parties representing indigent litigants can dispute court costs and (2) how Texas courts can issue injunctions that affect other court's judgments or orders.

Conclusion:

While the Court has not set the certified questions or newly granted petition for review for oral arguments, we will provide an analysis of whatever decisions are ultimately issued. Make sure to check back with The Bassett Firm's weekly Texas Supreme Court Update to see if the Court releases any opinions next Friday. In the meantime, we hope this analysis of the Court's opinions and orders was useful to your practice.

Best Regards,

The Bassett Firm