The Texas Supreme Court, notably aligned in its decision-making, began its 2024 term this week hearing cases involving defective seatbelts, libel, oil-and-gas pooling and parental rights terminations. Those issues are among 42 cases on which the court has already granted review, including four certified questions from the U.S. Court of Appeals for the Fifth Circuit.
“The court has a very busy term ahead of it,” said AZA partner Jane Langdell Robinson, during a CLE webcast update on the court sponsored by The Texas Lawbook.
Robinson was joined by AZA partner Daryl Moore and Haynes Boone partner Ben Mesches. They reviewed significant cases from the prior term, and each talked about an upcoming argument they will be watching during September and October.
The panelists noted that the court has experienced stable membership for about two years now, and division in its rulings is relatively rare. The panel drew on statistics compiled and analyzed by Austin appellate attorney Don Cruse, who found that the court agreed in about three-fourths of its cases with signed decisions during the 2023 term, which ended earlier this month, said Mesches.
Regarding upcoming cases, Mesches spotlighted American Honda Motor Co. v. Milburn, a products liability case heard by the court Sept. 13. The court is reviewing jury findings that Honda negligently designed a seat belt system but also found that Honda was entitled to presumption of nonliability under statutory provisions.
“This is a case that really deals with the interplay between state and federal law, particularly federal regulatory law,” said Mesches. “It creates a rebuttable presumption of nonliability by a manufacturer if the product designs comply with federal safety standards, which was the case here.”
Honda is represented by Wallace B. Jefferson of Alexander Dubose & Jefferson. The injured plaintiff, Sarah Milburn, is represented by Jeffrey S. Levinger.
The case number is 21-1097.
Moore, a former district court judge in Harris County, said he naturally chose a case centered on procedural issues, Sealy Emergency Room v. Free Standing Emergency Room Managers of America.
The dispute involves a common situation in cases where the trial court grants partial summary judgment. The Supreme Court will consider whether a trial court can sever unresolved claims following a grant of partial summary judgment, thereby creating an appealable final judgment.
FERMA was hired to manage Sealy Emergency Room and sued over a contract dispute. The trial court granted partial summary judgment on Sealy ER’s counterclaims and third-party claims and severed those claims into a new action with a separate cause number.
The Supreme Court will review a decision by the First Court of Appeals to dismiss Sealy ER’s appeal for lack of jurisdiction due to the pendency of FERMA’s unresolved claims under the original case.
Moore said the First COA is “an outlier in this area,” noting that Houston’s other intermediate appellate court, the Fourteenth, and other courts of appeal “don’t approach it that way.”
“The reason I saw this as one to watch is, hopefully, the Supreme Court will fix this and make it uniform,” he said.
Sealy ER is represented by Cynthia L. Jones and Scott McCormick of Newton, Jones & McNeely. FERMA is represented by Darren Braun and Ashish Mahendru.
The case, No. 22-0459, is scheduled for argument Oct. 24.
Robinson chose a case involving high-powered lawyers and noxious fumes from East Texas industrial chicken farms. Paul D. Clement, former solicitor general of the United States, and Jefferson, former chief justice of the Texas Supreme Court, are representing Steve Huynh and others seeking reversal of a permanent injunction barring them from operating their poultry farms.
In Huynh, et al. v. Blanchard, et al., Huynh and other chicken farm owners and operators are appealing the trial court’s issuance of an injunction that followed a jury finding that the operation of the densely situated farms was a temporary nuisance.
The farmers, in their petition for review, asked the court to “clarify that a permanent injunction is a fundamental misfit for a temporary nuisance, especially where the jury expressly finds that any nuisance is not likely to recur with any reasonable predictability.”
“If the decision below stands, any temporary nuisance could justify the permanent shuttering of agricultural, chemical, oil, manufacturing, mining or other facilities in Texas even if an adequate remedy at law exists,” said the petition filed in November 2021 by Clement, who was then practicing at Kirkland & Ellis and now is with Clement & Murphy.
Respondents, including Frank Blanchard and other Henderson County residents, said Huynh circumvented limitations on the number of chickens his business could raise by creating two LLCs for two farms on one property that “spewed putrid odors into” the nearby community. In their response to the petition for review, they said the jury’s finding did not bar the judge from granting a permanent injunction.
“The judge makes that determination based on the entire record — not just the evidence presented to the jury — after the jury is discharged,” said the response by M. Keith Dollahite of Tyler, who will present arguments for the community members on Oct. 3.
The appeal already has drawn an amicus brief on behalf of the Texas Cattle Feeders Association.
In selecting the case as one to watch, Robinson said she was drawn not only by the issue but by “high-powered lawyers on both sides.” She issued a cautionary warning, however, for lawyers who read briefs while eating lunch at their desks.
“I’m going to recommend if you dig into the facts of this case, don’t do it while you are eating a lunch of chicken,” she said.
The case is No. 21-0676.
The webcast may be viewed at the following link.