March 20, 2015

This week the Supreme Court of Texas released 8 new opinions on a variety of topics of interests in Texas jurisprudence. Two of these cases involve issues well beyond the scope of our litigation practice (including a case involving issues under the Houston Municipal Employees Pension System Plan and defining rights under the Texas Water Code), and they are not covered in this week's update. This coming week, the Court is scheduled to hear oral arguments in Austin. We will report back next week on the Court's decisions as well as discuss the Court's oral arguments.

Nabors Well Services, Ltd. v. Loera, Case 13-0126:

http://www.txcourts.gov/media/907937/130126.pdf

In this case, the court of appeals reversed the trial court based upon admission of evidence that Plaintiff failed to use a seat-belt at the time of the accident. The Texas Supreme Court reversed and remanded this case back to the trial court based upon its recent holding in Nabors Well Services, Ltd. v. Romero, ___ S.W.3d ___ (Tex. 2015) allowing introduction of evidence of seat-belt non-use in auto accident cases, overruling its earlier opinion in Carnation v. Wong, 516 S.W.2d 116, 117 (Tex. 1974).

University of Texas at Arlington v. Williams, Case 13-0338:

http://www.txcourts.gov/media/907929/130338.pdf

In this 7-2 opinion, authored by J. Devine, the Court examined whether the Texas Recreational Use Statute, Tex. Civ. Prac. & Rem. Code §§ 75.001-.007, which effectively immunizes a landowner or occupant from ordinary negligence claims for a list of activities associated with a property's "recreational use". When applicable, the statute requires plaintiffs to establish gross negligence to recover.

The question before the Court was whether the statute's recreational activity list reasonably includes a spectator at a competitive sports event. The Fort Worth Court of Appeals held it did not. UTA leases out its stadium to Arlington ISD. The plaintiffs were at their daughter's high school soccer game. Plaintiff leaned on gate a few feet above the field, which had a broken latch and was "secured" with a chain and padlock. The stairs for descending from the gate to the field were not in place. The gate opened and the plaintiff fell five feet onto the artificially turfed field.

UTA filed a plea to the jurisdiction on the basis of sovereign immunity and the recreational use statute. It was denied, and an interlocutory appeal was filed. The court of appeals affirmed the trial court. The Texas Supreme Court, applying the principle of ejusdem generis, found that attendance at a soccer game is not similar in type to those specifically enumerated in the Recreational Use Statute. The Court found the catchall phrase added to the statute in 1997 including "activit[ies] associated with enjoying nature or the outdoors" with the purview of the statute to not include spectators at outside sporting events. According to the Court, watching sporting activities outside is of a different nature than the other type of specific outdoor activities specifically enumerated by the statute. Thus, the court affirmed the court of appeals.

G.T. Leach Builders LLC et al v. Sapphire V.P., LP, Case 13-0497:

http://www.txcourts.gov/media/907938/130497.pdf

This case involves an interlocutory appeal involving a trial court and court of appeals' denial of a motion to compel arbitration. As part of an insurance dispute between a developer and its insurance agents and adjusters, the defendants named the general contractor of the project and several sub-contractors as RTPs. The developer then amended his Petition to join the RTPs as parties.

After some discovery and defensive motion practice by the later-added defendants, they moved to compel arbitration, which the district court denied. The court of appeals affirmed.

The Texas Supreme reversed. First, the Court reasoned the actions (defensive motion practice and discovery) of the later-added General Contractor did not prejudice the Plaintiff or waive their right to arbitrate the claims between them through litigation conduct. The Court also rejected the argument that the trial court could determine if the contractual deadline for arbitration in the contract between the parties time-barred their demand for arbitration, finding this was a jurisdictional issue for the arbitration panel to determine. It determined the contractual deadline did not go to the issue of whether the claims were subject to arbitration (an issue for the courts) but whether the arbitrators could award Sapphire a remedy against the GC in light of the delay to seek arbitration (an issue for the arbitrators).

However, as to the other defendants that did not have an arbitration agreement with Sapphire, the Court reached a different conclusion. The Court rejected the subcontractor's argument that the general contract required Sapphire to arbitrate claims against them, instead finding the language of the contract to be permissive in nature. Additionally, the Court found Sapphire was not equitably estopped from resisting arbitration of its claims. Finally, the Court concluded that the subcontracts between the subcontracts and general contractor did not require Sapphire to arbitrate its claims against the subcontractors.

Thus, the Court affirmed the denial of the subcontractors' and insurance brokers' motion to compel arbitration and reversed the denial of the general contractor's motion to compel arbitration.

Kallinen v. City of Houston, Case 14-0015:

http://www.txcourts.gov/media/907934/140015.pdf

In this case arising under the Texas Public Information Act, Chapter 552 of the Texas Government Code, the Court determined that a Plaintiff seeking information under the Act does not have to wait until an Attorney General Opinion is issued to bring a suit to enforce the Act. The court of appeals held the trial court lacked jurisdiction over the PIA suit until the Attorney General rules. The Court reversed finding the requestor could bring suit before the Attorney General releases an opinion.

In re Conner and IESI Solid Waste Services, Case 14-0177:

http://www.txcourts.gov/media/907935/140177.pdf

The issue in this case was whether the nine-year pendency of a lawsuit with very little action by the plaintiff was an unreasonable delay worthy of dismissal for want of prosecution. The plaintiffs had been injured in an automobile collision in 2002 and filed suit one day short of their two-year statute of limitations deadline. The defendants moved for summary judgment in 2007, which was never heard by the court, unsuccessfully moved to dismiss for want of prosecution in 2011 and again in 2013. As their only excuse for their inaction, the plaintiff's stated that their counsel had experienced medical complications and had been hospitalized for a significant, yet undisclosed, period of time. The defendants quickly pointed out that plaintiff's counsel had made numerous filings in other matters during his alleged incapacitation. The Court held that the nine-year lawsuit was a delay of unreasonable duration without a sufficient explanation and directed the trial court to dismiss the suit for want of prosecution.

Stribling et al v. Millican DPC Partners, LP et al, Case 14-0500

http://www.txcourts.gov/media/907936/140500.pdf

In this case, the Court reaffirmed its stance that a deed's specific meet-and-bounds description is controlling over any general description of the land being conveyed. The Court noted, however, that the general description is still useful for interpreting inconsistencies where the metes-and-bounds description is "defective or doubtful." Furthermore, the Court stated that the overall preference for construing instruments to grant the greatest estate its term permit is cabined if the instrument includes a specific and unambiguous metes-and-bounds description.

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