As the Supreme Court of Texas prepares to hear the first slate of oral arguments in the 2022-23 term, here is a preview of key business cases currently on the court’s argument docket.
The court will hear two cases later this fall that will give it the opportunity to clarify standards governing noneconomic damage awards.
The petitioners in Gregory v. Chohan challenge a $39 million jury verdict (including nearly $36 million in noneconomic damages) and seek guidance regarding the standard of review for assessing claims of excessive noneconomic damages. Argument is scheduled for Nov. 30.
The case number is 21-0017.
In United Rentals North America, Inc. v. Evans, the petitioners request the court’s direction on the standards for factual sufficiency review of noneconomic damages. They also raise questions regarding application of Batson challenges to peremptory strikes against white male prospective jurors and whether the shipper of equipment owes a duty to ensure that the motor carrier and driver safely perform their work. Argument is scheduled for Nov. 30.
The case number is 20-0737.
Point Energy Partners Permian, LLC v. MRC Permian Company gives the court a chance to address an issue of increasing importance in light of the economic impact of the pandemic and recent natural disasters: the interpretation of force majeure clauses. Argument is scheduled for Oct. 25.
The case number is 21-0461.
In Comcast Corporation v. Houston Baseball Partners LLC, the court will resolve issues regarding justifiable reliance and whether financial projections qualify as actionable statements of fact in the context of a denial of a Texas Citizens Participation Act motion to dismiss claims arising out of the 2011 sale of the Houston Astros. Oral argument is scheduled for Oct. 5.
The case number is 21-0641.
Total E&P USA, Inc. v. MP Gulf of Mexico, LLC will require the court to resolve a split in authority under Texas law regarding whether incorporation of American Arbitration Association rules constitutes clear and unmistakable evidence of an intent to arbitrate the threshold question of arbitrability. The court will hear the case Sept. 20.
The case number is 21-0028.
The court will hear two arguments this fall to resolve four cases (3 have been consolidated) addressing class certification issues.
The three Mosaic Baybrook One, LP v. Simien cases raise fundamental questions regarding class certification including: (1) injury-in-fact standing for class representatives, (2) the level of merits analysis required by Rule 42 and court precedent, and (3) whether failure to list the elements of all claims and defenses as required by Rule 42 is an abuse of discretion. The cases will be heard in a consolidated argument Sept. 21.
The case numbers are 19-0612, 21-0159 and 21-0161.
The court will address similar questions in American Campus Communities, Inc. v. Berry, which raises issues regarding whether (1) statutory violations without injury suffice to establish standing and (2) the court of appeals was required to determine and evaluate the specific elements for the causes of action raised by the class. Argument is scheduled for Oct. 5.
The case number is 21-0874.
Oil and Gas
The court has granted five cases addressing oil and gas issues.
Devon Energy Production Company, LP v. Sheppard raises the issue of whether the parties’ lease required Devon Energy to add postproduction costs incurred by third-party purchasers to the gross proceeds from sale before calculating Sheppard’s royalty. Argument will be held Oct. 5.
The case number is 20-0904.
In Van Dyke v. Navigator Group, the court will resolve a dispute regarding whether the 1924 deed reserving “one-half of one-eighth” of the mineral rights reserved 1/2 or 1/16 of the mineral estate. Argument is scheduled for Oct. 6.
The case number is 21-0146.
Jordan v. Parker involves a dispute over the current ownership of an undivided one-eighth interest in the mineral rights to a family ranch, requiring the court to determine whether a 1998 deed purporting to convey all the grantor’s right, title and interest in the ranch conveyed the mineral rights. The case will be heard Sept. 22.
The case number is 21-0205.
In Apache Corporation v. Apollo Exploration, LLC, the court will determine whether an expiration date noted in a collateral document created a fact issue regarding the expiration date contained in the parties’ oil and gas lease. Argument will be held Oct. 27.
The case number is 21-0587.
Finley Resources, Inc. v. Headington Royalty, Inc. deals with the proper scope and application of a settlement and release provision in an acreage swap agreement between two oil and gas lessees. Argument is scheduled for Nov. 30.
The case number is 21-0509.
At the start of next year, the court will hear two arguments covering three cases that will determine whether the Electric Reliability Council of Texas enjoys immunity from suit and whether claims against ERCOT are subject to Public Utility Commission exclusive jurisdiction.
In re ERCOT, Inc. and CPS Energy v. ERCOT address both questions: whether ERCOT is a “governmental unit” entitled to an interlocutory appeal from the denial of a plea to the jurisdiction and whether it enjoys immunity from suit. These cases have been consolidated for argument Jan. 9.
The case numbers are 21-0834 and 22-0056.
ERCOT, Inc. v. Panda Power Generation Infrastructure Fund, LLC is another case raising the question of ERCOT’s immunity from suit. This case will also be heard Jan. 9.
The case number is 22-0196.
Note: Haynes and Boone is counsel of record in ERCOT v. Panda.
Overstreet v. Allstate Vehicle and Property Insurance Company is a certified-question case regarding the scope and application of Texas’s “concurrent causation doctrine,” which requires an insured to prove how much of the damage caused by a combination of covered and uncovered causes is solely attributable to the covered cause. Argument will be held Sept. 21.
The case number is 22-0414.
Editor’s Note: The court gave notice in orders issued Friday morning that a settlement has been reached in Overstreet v. Allstate Vehicle and Property Insurance Company.
The court heard argument in State of Texas v. Volkswagen Aktiengesellschaft in February of this year but abated the case upon the recusal of Justices Jimmy Blacklock and Evan Young. Gov. Greg Abbott recently appointed Chief Justice Bonnie Sudderth (Fort Worth) and Justice Jaime Tijerina (Corpus Christi) as replacements to help the court decide whether Volkswagen’s involvement with emissions tampering software installed in vehicles located in Texas is sufficient to support personal jurisdiction.
The case number is 21-0130.
Ben Mesches is a partner in Haynes and Boone’s appellate practice group and chairs the firm’s litigation department.
Ryan Paulsen is a counsel in Haynes and Boone’s appellate practice group.