I am late in getting these statistics from the 2023 calendar year posted, but as they say, better late than never.

Unanimity. One statistic that I have tracked in recent years is the number of unanimous opinions authored by a justice. This statistic may be an indicator that a justice works with his or her colleagues to write an opinion reflective of all of the justices’ thought processes. In years past, Justice Blacklock has led the court with the most unanimous opinions, but in 2023, Justice Blacklock tied with Justice Busby for second, with each justice authoring six unanimous opinions. Justice Young had the highest number of unanimous opinions with seven.

Per curiam opinions. Per curiam opinions are unsigned opinions issued by the court as a whole. The court generally uses the per curiam opinion as a mechanism to correct lower court opinions where the lower court has issued an opinion containing a clear error conflicting with existing precedent. In 2023, the Texas Supreme Court issued 23 per curiam opinions. In all 23 cases, the Texas Supreme Court reversed the lower court.

Reversal rates. I keep a running total of reversal rates of the courts of appeals to look for trends. The numbers I focus on only look at the cases the court agreed to review. The vast majority of petitions are denied and a denial of a petition does not speak one way or the other to the question of whether the court of appeals opinion is factually and legally correct.

Keeping in mind that the average reversal rate for granted petitions is 75%, a reversal rate that is above 75%, indicates a higher than average reversal rate and a reversal rate below 75% indicates a below average reversal rate. Of particular note, 100% of the petitions taken from the Third Court of Appeals (Austin) were reversed. The Fourth Court of Appeals (San Antonio) had the second highest reversal rate at 87%. The First Court of Appeals (Houston) was right at the average at 75%, while the Fourteenth Court of Appeals (Houston) was below the average at 63%. The Fifth Court of Appeals (Dallas) was just below the average at 71%. In general, focus upon any one year’s reversal rate by court of appeals is not terribly meaningful. By aggregating data for multiple years trends may be revealed and it helps eliminate what could simply be an aberration. As if to underscore this point, Michelle Casady, with The Texas Lawbook, published a chart showing affirmance rates for the intermediate courts of appeals for the Texas Supreme Court’s fiscal year (running from September 2023 through its summer break at the end of June or early July). I was surprised to see that her numbers show Austin with the highest affirmance rates of all the intermediate courts of appeals. After consulting with Michelle Casady, I discovered that Austin is having a better-than-average success rate so far in 2024. This abrupt change illustrates why it may be wiser to look at trends rather than isolated time-frames.

Opinions vs. Memorandum Opinions. I continue to monitor whether the Texas Supreme Court is taking more petitions when the court of appeals issued an “opinion” versus petitions when the court of appeals issued a “memorandum opinion.” Data from prior years rebut the perception that the court is less likely to take a petition if the court of appeals issues a “memorandum opinion.” The data from the 2023 calendar year continue the trend. Fifty-nine percent of the opinions issued by the Texas Supreme Court on petitions for review involved a court of appeals “memorandum opinion,” whereas forty-one percent involved a court of appeals “opinion.”

I have done the number crunching for Texas Supreme Court cause disposition for the calendar year beginning January 1, 2023, and ending December 31, 2023. The broader statistics are set out below. I will provide additional numbers and calculations in the coming weeks.

  • During the 2023 calendar year, the Texas Supreme Court disposed of 100 causes, consisting of 86 causes taken on petition for review, 11 original mandamus proceedings, and 3 certified questions. One hundred causes is slightly higher than the average.
  • Twenty-nine of the causes were disposed of by per curiam (unsigned) opinions. In 2022, the court issued 27 per curiam opinions. In 2021, the court issued 20 per curiam opinions.
  • Twelve of the per curiam opinions disposed of petitions for review. Seven of the per curiam opinions disposed of petitions for writ of mandamus.
  • The number of opinions addressing certified questions is down from last year’s 6 opinions. To a large extent, this number is driven by how frequently the Fifth Circuit certifies a question to the Texas Supreme Court.
  • The reversal rate for causes taken on petitions for review is down from last year’s 86%. The reversal rate of 76% for 2023 is more in line with the average reversal rate.
  • Excluding per curiam opinions, 46 of the court’s opinions were unanimous.

For pending and unreported cases, the 20th Edition of The Bluebook calls for citation to the LEXIS or Westlaw electronic report of the case when one is available. But if you are in the Fort Worth Court of Appeals, you would be wise to use the citation to Westlaw if it is available.

The Fort Worth Court of Appeals’ website includes a section about practicing before the court. Included under that heading are the court’s Internal Operating Procedures. The section of that item that addresses briefs contains the following advisory:

Because the court does not
subscribe to Lexis, the court
prefers that any citations and
hyperlinking to authorities be to
Westlaw.

But then last Spring, the court issued an opinion with this footnote:

This court’s website advises litigants that it does not subscribe to LEXIS and requests that parties cite to Westlaw in their briefing. See, www.txcourts.gov/2ndcoa.aspx, Internal Operating Procedures, Briefs & fn 1 (2022). Despite this request, Loudermilk cites to LEXIS, not Westlaw, throughout his brief, requiring this court to cross reference to Westlaw to
find the cases cited by him. We encourage all parties to pay attention to the requirements for briefing.

In re Estate of Hodges, No. 02-20-00020-CV, 2022 Tex. App. LEXIS 3036, *7-8 n.2, 2022 WL 1420976 (Tex. App.–Fort Worth May 5, 2022, pet. denied).

Note the use of the word “requirements” in the final sentence. Whether an actual requirement or not, practitioner would be well-advised to provide the Westlaw cite when the authority does not appear in a reporter.

            This term the Texas Supreme Court issued a succession of rulings favoring arbitration agreements and refusing to recognize various defenses.  It rejected a claim of unconscionability due to excessive costs, held a nonsignatory bound to arbitrate by direct-benefits estoppel, and held that incorporation of AAA Commercial Rules into a contract constitutes a clear and unmistakable agreement that the arbitrator not the courts would rule on arbitrability questions.

Unconscionability due to excessive costs rejected

In Houston AN USA, LLC v. Shattenkirk, No. 22-0214, 2023 Tex. LEXIS 438 (Tex. May 26, 2023), the court held that an employee resisting arbitration of an employment-discrimination suit failed to establish that the arbitration agreement was unconscionable because the costs of arbitration are so excessive that they would foreclose the employee from pursuing his claims.  The court recognized that a party opposing arbitration on this ground has the burden of proof, citing In re Poly-Am, LP, Poly-America, 262 S.W.3d 337, 356 (Tex. 2008).  The party resisting arbitration must show that the party “will actually be charged fees that would prevent him from effectively vindicating his statutory rights.”  “[T]he crucial inquiry is whether the arbitral forum in a particular case is an adequate and accessible substitute to litigation,” citing In re Olshan Found Repair Co., 328 S.W.3d 883, 894-95 (Tex. 2010).  If the cost of proceeding in court and arbitration are comparable “that effectively ends the inquiry because it renders the arbitral forum ’equally accessible.’”  Shattenkirk’s evidence included an AAA invoice from an unrelated case, an affidavit from Shattenkirk’s attorney that his case would last longer than the one in the invoice and averring that the cost to litigate in court would be a few hundred dollars.  The court held that such evidence fell short of demonstrating that Shattenkirk would actually be charged fees that would prevent him from effectively vindicating his rights.  The affidavit arguably provided a reasonable basis to estimate the total fees of arbitration, but did not show how that amount compared to the overall cost of litigation nor show Shattenkirk’s ability to afford litigation but not arbitration.  The court held that the reference to litigation costing a few hundred dollars appeared to refer only to filing fees and was thus not concrete evidence of the increased cost of arbitration as compared to litigation or that such increased cost foreclosed the party from pursuing his claims. And nothing in the record showed that Shattenkirk would actually be charged and incur the estimated costs of arbitration.  The agreement did not specify any arbitration rules such as JAMS or AAA, but the court noted that those groups had employment arbitration rules requiring employers to pay all costs other than an initial filing fee. Without condoning silence in an arbitration agreement with regard to payment terms, the court held that the plaintiff “cannot leverage the contractual silence about who would pay to summarily avoid the arbitration agreement he made.” It concluded that the risk that Shattenkirk would be saddled with prohibitive costs was “too speculative to justify the invalidation of the arbitration agreement.”

Direct-benefits estoppel applied to non-signatory

In Lennar Homes of Tex. Land & Constr., Ltd. v. Whiteley, No. 21-0783, 2023 Tex. LEXIS 407 (Tex. May 12, 2023), the court held that a subsequent purchaser of a home was bound under the doctrine of direct-benefits estoppel to arbitration clauses in a builder’s purchase-and-sale agreement with the original purchaser and in a deed to that purchaser.  A home was built for an original purchaser under an agreement that included both a general and a warranty-specific arbitration agreement.  The builder later recorded a deed that included an arbitration provision and stated that the provision would run with the land and bind all successors and assigns. The house was later sold to a new buyer who discovered mold and sued the builder.  The plaintiff argued that she was not a party to any of the arbitration agreements and was not bound by them. The trial court issued a stay and the parties proceeded to arbitration, where plaintiff was denied relief and the builder awarded its attorney fees and costs.  But the trial court vacated the award and the court of appeals affirmed.  The Texas Supreme Court first listed the six ways non-signatories can be bound to arbitration agreements: (1) incorporation by reference; (2) assumption; (3) agency; (4) alter ego; (5) equitable estoppel; and (6) third-party beneficiary, citing In re Kellogg Brown & Root, Inc., 166 S.W.3d 732, 739 (Tex. 2005).  With regard to direct benefits estoppel, a non-signatory may be compelled to arbitrate if its claims are “based on a contract” containing an arbitration provision, but not if liability arises from general obligations imposed by law.  Whether a claim seeks a direct benefit from a contract turns on the substance of the claim not artful pleading.  The court held that implied warranty claims are as much a part of the writing as the express terms of the contract, and absent a contract such warranties would not arise.  It analyzed each implied warranty separately.  The implied warranty of good workmanship applies unless it is supplanted by express warranties in the contract, therefore the claim does not stand independently of the purchase agreement.  The implied warranty of habitability can be waived to the extent that defects are adequately disclosed.  The purchase agreement here contained some disclosures and therefore liability for breach of this implied warranty, while not arising from the purchase agreement, must still be determined with reference to it and thus does not stand independently from it.  The court concluded that the plaintiff was bound to arbitrate pursuant to the purchase and sale agreement under the doctrine of direct-benefits estoppel and rendered judgment confirming the arbitrator’s award in favor of the builder and against the plaintiff.   On the basis of its holding in this case the court ordered arbitration in the similar case of Taylor Morrison of Tex., Inc. v. Kohlmeyer, No. 21-0072, 2023 Tex. LEXIS 623 (Tex. June 30, 2023).

Incorporation of AAA rules delegates arbitrability to the arbitrator

Finally, in a case of first impression, the court in TotalEnergies E&P USA, Inc. v. MP Gulf of Mex., LLC, No. 21-0028, 2023 Tex. LEXIS 315 (Tex. June 9, 2023), held that incorporating AAA Commercial Rules into a contract constitutes a clear and unmistakable agreement that the arbitrator decides arbitrability.  The parties had two related contracts, a System Operating Agreement that included an arbitration clause and a Cost Sharing Agreement that did not.  The arbitration provision provided that arbitration would be in accordance with AAA Commercial Rules.  The plaintiff attempted to bring claims solely under the Cost Sharing Agreement and thereby avoid arbitration.  MP Gulf contended that by incorporating the AAA Commercial Rules, the System Operating Agreement delegated to the arbitrator the power to rule on the arbitrability of any claim including those ostensibly under the Cost Sharing Agreement.  The AAA rule mandates that the arbitrator has “the power” to decide arbitrability issues.  The Texas Supreme Court noted that courts will enforce an agreement to delegate arbitrability disputes to the arbitrator only if such agreement is “clear and unmistakable,” which raised the question of the effect of incorporating the AAA rules.  After reviewing many other state and federal court rulings, the court held that, “as a general rule, an agreement to arbitrate in accordance with the AAA or similar rules constitutes a clear and unmistakable agreement that the arbitrator must decide whether the parties’ disputes must be resolved through arbitration.”  The majority further held that such an agreement grants the arbitrator the exclusive power to rule on what claims are arbitrable and courts do not have concurrent power to make such rulings.  “The fact that the parties’ arbitration agreement may cover only some disputes while carving out others does not affect the fact that the delegation agreement clearly and unmistakably requires the arbitrator to decide whether the present disputes must be resolved through arbitration.”  That ruling still left Total E&P’s argument that the valid arbitration agreement did not apply to the claims it was asserting because they did not arise out of the agreement containing the valid arbitration agreement.  But the court noted that while challenges to the scope of an arbitration agreement are ordinarily decided by the courts, that rule applies unless the parties have clearly and unmistakably delegated that issue to the arbitrators, as the parties did here.  Thus the arbitrator was required to decide whether the arbitration agreement required arbitration of the claims asserted by Total E&P.

I continue to track the statistics on the number of petitions for review granted by the Texas Supreme Court where the court of appeals wrote an “Opinion,” versus those where the court of appeals wrote a “Memorandum Opinion.” My prior years’ statistical analysis have dispelled the notion that if the court of appeals writes a “Memorandum Opinion,” the Texas Supreme Court will be less likely to review it. The calendar year for 2022 only helps to further that conclusion.

In 2022, 42% of the petitions for review that the supreme court granted and issued opinions involved “Opinions” issued by the court of appeals, while the remaining 58% involved “Memorandum Opinions.” The high-water mark for “Memorandum Opinions” came in 2019, when the Texas Supreme Court’s petition for review docket consisted of 61% Memorandum Opinions.

The reversal rate for both types of opinions was statistically the same.

Per curiam opinions. Per curiam opinions are unsigned opinions issued by the whole court. These opinions are generally used by the court to correct errors where the error is clear-cut and oral argument isn’t needed. The court can in effect correct an error without devoting more court resources than absolutely necessary. In the year 2022, the court issued 19 per curiam opinions on petition for review. Of those 19 opinions, the court of appeals was reversed 100% of the time. This is the same reversal rate for per curiam dispositions as in 2021.

I have completed the statistical calculations for the Texas Supreme Court’s cause disposition for the calendar year beginning January 1, 2022, through December 31, 2022. The breakdown of broader statistics is shown below. Additional calculations and numbers will be posted in the coming weeks.

  • During the 2022 calendar year, the Court disposed of 95 causes, consisting of 73 causes taken on petition for review, 14 original mandamus proceedings, 6 certified questions from the Fifth Circuit, and 2 direct appeals. The disposition of 95 causes is in line with prior years.
  • Twenty-seven of the causes were disposed of by per curiam (unsigned) opinions. In 2021, this number was 20. In 2020, the number was 30.
  • With 14 opinions issued on petitions for writ of mandamus, the number of such original proceedings has dropped from last year’s high of 28. However, this year’s 14 opinions is still higher than the handful of original proceedings the court wrote on each year prior to 2020.
  • The number of opinions on certified questions (6) is higher than in prior years.
  • The reversal rate for causes taken on petitions for review is up. The average is a 75% reversal rate. The reversal rate in 2022 was 86%.
  • I have again looked at the number of causes with unanimous opinions. Excluding per curiam opinions, there were 53 unanimous opinions, including 5 of the mandamus opinions that were unanimous and all 6 of the certified questions that were unanimous.

I had the privilege and pleasure of speaking to the Dallas Bar Association Appellate Law Section on the subject of superseding judgments in Texas state courts. In connection with that continuing legal education presentation, I prepared a written paper and a powerpoint presentation.  I am making those resources publicly available here:

Supersedeas Paper 2022

Supersedeas powerpoint slides

On Thursday, June 16, 2022, at 12:00pm, I have the pleasure of presenting a continuing education program to the Dallas Bar Appellate Law Section at the Arts District Mansion (2101 Ross).

I will be speaking on one of my favorite subjects, superseding judgments in Texas state courts.  The presentation will focus on the basics of superseding judgments and will delve into more complex, unanswered issues.

This is an in-person event only and the Dallas Bar Association has applied for an hour of continuing education credit for your attendance.

In the case of a judgment for recovery of an interest in real or personal property, the trial judge must determine the amount of security required to suspend enforcement of the judgment during appeal.  Texas Appellate Rule 24.2(a)(2) requires that the amount must be at least

(A) the value of the property interest’s rent or revenue, if the property
interest is real property; or
(B) the value of the property interest on the date when the court rendered
judgment, if the property interest is personal property

A recent opinion from the Corpus Christi Court of Appeals highlights a potential flaw or shortcoming with Rule 24.2(a)(2).

The dispute in Port Isabel Logistical Offshort Terminal, Inc. v. Subsea 7 Port Isabel, LLC, Nos. 13-21-00169-CV & 13-21-00368-CV (Tex. App.–Corpus Christi Mar. 10, 2022, orig. proceeding), related to the termination of Subsea’s leasehold interest kn property owned by Port Isabel Logistical Offshore Terminal (PILOT) and Subsea’s claimed right to retrieve improvements it made to the property.

Following an initial 2017 judgment, PILOT asked the trial court to set an amount required to suspend a portion of the trial court’s judgment ordering that Subsea be allowed to remove improvements from PILOT’s property.   The trial court set that amount required at $168.000 and PILOT thereafter posted a cash deposit in that amount.

In the initial appeal, the court of appeals largely affirmed the judgment, but remanded the case to the trial court for entry of a new judgment with recalculated prejudgment interest.  While on remand, a further dispute arose as to whether Subsea had waived the right to remove its improvements because of Subsea’s delay in taking action to do so.  PILOT expressed its desire to take a further appeal of the trial court’s ruling on the new issue.  The trial court signed an order requiring PILOT to post an additional $38,000 to suspend the new judgment allowing Subsea to to remove its improvements.  Subsea then filed a motion to further increase the amount of PILOT’s cash deposit, and the trial court ordered that PILOT must post an additional $150,000 to suspend the judgment, thereby bringing the total amount ordered to $350,000.

PILOT filed a motion with the court of appeals seeking review of the trial court’s supersedeas order.  PILOT argued that the proper amount for the supersedeas was the value of Subsea’s improvements  and Subsea had not shown that the value changed between the time of the trial court’s initial November 2, 2017 order and the trial court’s October 26, 2021 order granting Subsea’s motion to increase the supersedeas amount.  The court of appeals rejected PILOT’s challenge to the order, pointing out that Rule 24.2(a)(2) expressly provides that the amount of security must be “at least” the property’s value.  The appellate court further observed that the rule does not restrict a trial court from ordering security in excess of the property’s value.  Relying on the trial court’s general discretion in this regard, the court of appeals denied PILOT’s motion challenging the trial court’s order.

The court of appeals’ opinion raises the question as to whether there are limits to a trial court’s discretion.  In the Port Isabel matter, the amount set for supersedeas was 75% greater than the amount the court had set 4 years earlier.  Would the trial court’s discretion have allowed a figure that was 200% greater?  Appellate Rule 24.2(b) might allow for a reduction if the judgment debtor (assuming PILOT is a “judgment debtor”) can establish substantial economic harm as a result of having to post the amount set.  But the question remains–is a trial court’s discretion over the amount of supersedeas limited or is the sky the limit?  Perhaps the limiting principle on the trial court’s discretion is the principle that the supersedeas amount should be an amount sufficient to protect the judgment creditor from any potential harm caused by the stay during the course of the appeal.  Clarification of Rule 24.2 may be necessary to avoid inequities and due process problems.

 

 

My review of the statistics from the Texas Supreme Court’s dispositions in 2021 brought an assortment of facts to the forefront that are worth highlighting.

  • For the second year in a row, the court accepted a significantly higher number of petitions for writ of mandamus.
  • As the number of petitions for writ of mandamus reviewed increased significantly, the number of petitions for review granted declined, so that the size of the court’s active docket remained relatively constant.
  • The court wrote opinions on a disproportionate number of petitions for review that originated in the Third District Court of Appeals District (Austin), the Fourth District Court of Appeals (San Antonio), and the Fourteenth District Court of Appeals (Houston).
  • No petitions for review originating in either the Ninth District Court of Appeals (Beaumont) or the Twelfth District Court of Appeals (Tyler) were disposed of by written opinion.
  • 100 percent of the petitions for review granted and originating in the Third District Court of Appeals (Austin) were reversed.  In spite of this high reversal rate, the Third District Court of Appeals is tied with the Thirteenth District Court of Appeals for the best affirmance rate of all intermediate courts of appeals over the last 8 years.
  • Justice Blacklock authored the highest number of unanimous opinions for the court in 2021.