Appellate partners with Alexander Dubose Jefferson, Beck Redden and Haynes and Boone discussed on Wednesday some cases the Texas Supreme Court will hear this term that lawyers should have on their radars.
The comments came during an hourlong continuing legal education webcast attended by 180 lawyers and put on by The Texas Lawbook. Panelists covered both impactful rulings from the state high court’s prior term that ended in June and recent procedural changes at the court, such as granting review in some cases before requesting merits briefing.
On Friday, the Texas Supreme Court is expected to grant review in several more cases that it will hear and decide in the upcoming term, which begins in September. But the partners who participated in the CLE discussion highlighted four cases they plan to closely monitor that already have been set for oral argument.
Texas v. Volkswagen and Texas v. Audi
Ben Mesches of Haynes and Boone drew attention to what he called a “really important” personal jurisdiction case that has found itself in an unusual procedural posture as a holdover from last term.
The case asks the court to decide whether Texas can haul the German car manufacturers Audi and Volkswagen into state courts in a lawsuit stemming from the emissions cheating software scandal perpetrated by the companies.
After oral arguments in February and without either party requesting the move, the Texas Supreme Court abated the case on June 24 and removed it from its active docket. For the past several years the court has decided every case it accepts by the end of the term, making this case an outlier.
Chief Justice Nathan Hecht sent a letter to the governor that same day informing him that two justices — Justice Jimmy Blacklock and Justice Evan Young — recused themselves from the case after argument and asked that he appoint two new judges in their place to “participate in the deliberation and determination of these cases.”
“There was some briefing about whether that was appropriate here, given that Texas is a party and the government makes the appointment,” Mesches said of Chief Justice Hecht’s request to Abbott.
On Aug. 25 Gov. Greg Abbott appointed two new justices to the case: Chief Justice Bonnie Sudderth of the Second Court of Appeals to replace Justice Blacklock and Justice Jaime E. Tijerina of the Thirteenth Court of Appeals to replace Justice Young.
Mesches and others on the panel wondered whether the appointment of two new justices on the case would require some sort of “re-argument” scenario or if it would be decided based on the record as it stands.
Texas is represented by Rance Craft of the Texas Office of the Solicitor General.
Audi and Volkswagen are represented by Jeffrey B. Wall of Sullivan & Cromwell, Jeffrey S. Levinger and William Snyder of Bradley Arant Boult Cummings.
The cause numbers are 21-0130 and 21-0133.
Van Dyke et al. v. The Navigator Group et al.
In a case from the Eastland Court of Appeals, the court will decide a $40 million mineral rights dispute between two families over the meaning of a “one-half of one-eighth” reservation in a 1924 deed that conveyed the estate.
At issue is whether the conveyance left a half or a one-sixteenth ownership of the mineral estate after the reservation, and whether the appellate court’s holding that “one-half of one-eighth of all minerals and mineral rights in said land are reserved in grantors” means that only one-sixteenth of the minerals were reserved.
The Van Dyke parties contend the court of appeals refused to account for the “historical use” of one-eighth in double fractions, as the Texas Supreme Court directed in Hysaw v. Dawkins.
The case is one in a recent string of similar disputes that ask courts how to construe a double fraction instrument, said David Gunn of Beck Redden.
The case also implicates the presumed grant doctrine, which, according to briefing, “protects long-established property ownership even when doing so requires presuming the existence of a missing document in the chain of title.”
The court has scheduled oral arguments in the case for Oct. 6.
Van Dyke is represented by Marc S. Tabolsky of Schiffer Hicks Johnson, former Texas Supreme Court Justice Phil Johnson, and Mark W. McBrayer and W. Chris Boyer of Crenshaw Dupree & Milam.
Navigator is represented by David Keltner, Taylor Spalla, Harold L. Hensley Jr. and Derek L. Montgomery of Kelly Hart & Hallman.
The cause number is 21-0146.
Comcast et al. v. Houston Baseball Partners
In a commercial dispute over the purchase of broadcast rights for the Houston Astros — pitting Comcast and former owner McLane Champions against current owner Jim Crane’s Houston Baseball Partners — the Texas Supreme Court will clarify the scope of the Texas Citizens Participation Act.
The case arises from the $615 million purchase of the Astros in 2011, which spurred Crane’s lawsuit two years later alleging the valuation of the club was inflated based on assumptions about the broadcasting rights that Comcast and McLane knew were unreasonable. Crane is alleging fraud, civil conspiracy and breach of contract, and the Texas Supreme Court will have to decide if the TCPA can be applied to those claims.
But the case could provide clarity on a host of other issues, Kirsten Castañeda of Alexander Dubose Jefferson said during Wednesday’s CLE, including the difference between standing to bring a claim and the injury asserted in the claim.
“Those are two concepts that get confused by courts statewide at all levels,” she said. “So hopefully we will see some speaking to that in whatever opinion results in this case.”
Castañeda said the case also deals with what can divest a party of standing, whether an assignment of rights also involves an assignment of claims and the debate between what constitutes fact and opinion when determining what qualifies as an actionable misrepresentation.
“Also, what exactly are the parameters of the duty to disclose in an arm’s length transaction that will provide an actionable fraud claim by omission,” she said of the other issues raised by the case.
Oral arguments are slated to take place Oct. 25.
Comcast is represented by Thomas F.A. Hetherington and Andrew Kasner of McDowell Hetherington.
McLane Champions is represented by Charles Babcock, Nancy W. Hamilton, Harris J. Huguenard and Brett Kutnick of Jackson Walker and David Beck of Beck Redden.
HBP is represented by Thomas M. Farrell and Charles B. Hampton of McGuireWoods.
The cause number is 21-0641.
Total E&P USA v. MP Gulf of Mexico
Another noteworthy case on the court’s docket for this coming term asks whether incorporation of American Arbitration Association rules constitutes “clear and unmistakable” evidence of an intent to arbitrate the question of arbitrability.
Total filed suit seeking a declaration about the allocation of costs, and 12 days later MP initiated arbitration proceedings after a dispute arose over a $41 million invoice MP sent to Total, according to court records.
It’s more than just the commercial issue in the dispute that makes it one worth watching, said Russell Post of Beck Redden. He described the case as one that presents the court with an “important variation on what seems to be an endlessly recurring question.”
When the scope of an arbitration agreement is in dispute, who gets to decide the gateway issue of arbitrability?
“It’s a very interesting case because it puts at tension the [Texas Supreme Court’s] preference for strict, literal interpretations of contract and the court’s preference for aligning itself with mainstream national rules,” he said. “One of those has to give in this case. … It will be fascinating to see how the court resolves it.”
The case is set for oral arguments Sept. 20, the first day of arguments for the new term.
John Bash of Quinn Emanuel Urquhart & Sullivan will argue on behalf of Total E&P, and as of Wednesday afternoon the docket didn’t indicate who would be arguing for MP.
Total is represented by Wallace B. Jefferson, Rachel A. Ekery and William J. Boyce of Alexander Dubose Jefferson as well as Quinn Emanuel lawyers Bash, Karl S. Stern, Christopher D. Porter, Elizabeth M. Devaney and Nicholas J. Caluda.
MP is represented by Thomas R. Phillips, Stephanie F. Cagniart, David B. Goode, William K. Kroger, Jason A. Newman and Amy Pharr Hefley of Baker Botts.
The cause number is 21-0028.