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.

Parties (and their counsel) to a court of appeals’ disposition of an appeal sometimes worry that if the court disposed of the appeal by issuing a “Memorandum Opinion” instead of an “Opinion,” the chances of obtaining review by the Texas Supreme Court will be diminished.  Statistics in recent years have helped to dispel this concern.  The statistics for 2021 continue to support the conclusion that the label on the court of appeals’ disposition doesn’t matter insofar as obtaining supreme court review.

During 2021, petitions for review granted and disposed of by the Texas Supreme Court were almost evenly split between those for which the court of appeals issued an “Opinion” (53%) and those for which the court of appeals issued a “Memorandum Opinion” (47%).  Keeping in mind that the factors a court of appeals is supposed to use in its determination of what label to put on the written disposition overlap with factors the supreme court uses in deciding what matters are important to the state’s jurisprudence (for purposes of granting a petition), the near-even split between “Opinions” and “Memorandum Opinions” is notable.

The label on the court of appeals opinion didn’t seem to make a difference insofar as the affirmance or reversal by the supreme court.  The court reversed 76% of the causes involving a court of appeals “Opinion,” and reversed 73% of the causes involving a court of appeals “Memorandum Opinion.”

Per curiam opinions:  I like to track the supreme court’s use of per curiam (unsigned) opinions to see how the court uses that procedural device.  The court often uses this device to correct patent errors made by the courts of appeals.  Because these opinions are nearly always issued without oral argument, in theory the court expends fewer resources than it would otherwise expend,   In 2021, the supreme court reversed the court of appeals in 100% of the causes when the supreme court issued a per curiam opinion upon granting a petition for review.   This is the highest reversal rate I have seen for per curiam opinions since I have been tracking this statistic.

 

I ran the statistics for the Texas Supreme Court’s cause disposition for the calendar year beginning January 1, 2021, through December 31, 2021, and the breakdown of broader statistics is shown below.  As with prior years, I will follow up with additional data as I crunch more of the numbers.

  • During the 2021 calendar year, the court disposed of 91 causes, consisting of 61 causes taken on petition for review, 28 original proceedings (27 mandamuses and one habeas corpus), and 2 certified questions.  The court disposed of 97 causes in 2020, 88 causes in 2019, and 98 causes in 2018.
  • Twenty of the causes were disposed of by per curiam opinion (unsigned opinion).  This is a decline from last year when the court disposed of 30 causes by per curiam opinion.
  • The number of petitions for writ of mandamuses accepted and disposed of rose markedly.  In 2020, the court wrote opinions on 12 original proceedings, and that number was an increase over prior years.  in 2020, it appeared to me that the increase may have been explained partly by election-year issues.  However, this year’s number of original proceedings is more than double the number handled in 2020.
  • During 2021, the reversal rate for causes taken on petition for review is 75%, which is about the average.
  • As with last year’s numbers, I looked at the number of causes with unanimous opinions.  Excluding per curiam opinions, there were 48 unanimous opinions, which includes 9 of 18 mandamuses decided by signed opinion, and 1 of the 2 certified questions was decided by unanimous opinion.  Overall, there was some disagreement among the justices in 35.6% of the causes.  This disagreement could reflect the changing make-up of the court during the past year.

Final notes on original proceedings:  I looked at the substance of the mandamuses that were decided during 2021 to see if I could glean anything from that subject-matter as to why the number of writings on petitions for writ of mandamuses is up.  It’s a complete mix of subjects addressed and there does not appear to be any trend or explanation on the face the petitions taken.  One potential explanation for the increase could be fall-out from the fact that fewer appeals have been taken during the Covid pandemic since trial courts have been restricted in their operations.  With fewer ordinary appeals taken, perhaps the petitions for writ of mandamus simply looked more important to the state’s jurisprudence.

One observation worth noting, however, is that the overall number of causes taken and addressed by the court has remained relatively fixed, which means that as the proportion of petitions for writ of mandamus  taken has gone up, the proportion of petitions for review has declined.

Early last year, I wrote about the split among the Texas courts of appeals on whether mandamus relief is available to challenge a trial court’s ruling striking a Section 18.001 counteraffidavit.  Civil Practice and Remedies Code Section 18.001 counteraffidavits are used by defendants to contest the reasonableness and necessity of a claimant’s affidavit proof of medical expenses in personal injury cases.  The Texas Supreme Court has now resolved the split of authority and held that mandamus relief is available because an appeal is not an adequate remedy since the defendant’s ability to present a viable claim or defense at trial is severely compromised.

In In re Allstate Indemnity Company, No. 20-0071, the trial court’s challenged order excluded the defendant’s damages expert from testifying on any issue and it prohibited the defendant from offering evidence, questioning witnesses, or arguing to the jury about the reasonableness of the plaintiff’s medical expenses.  The supreme court wrote that the order was “far from routine.”

The trial court had expressed a number of reasons for striking the defendant’s counteraffidavit.  One by one, the supreme court’s opinion addresses each reason provided by the trial court and holds that the trial court erred.  Many of the grounds addressed are commonly-used grounds for striking counteraffidavits.

Lack of expertise.  The supreme court rejected the trial court’s ruling that the affiant lacked the expertise to controvert the reasonableness of expenses.  The record showed that the affiant had extensive education and training in nursing and was a licensed registered nurse.  She had 21 years’ experience in healthcare, including 12 years reviewing medical bills.  The supreme court expressly rejected the contention that the nurse had to be in the same field of medicine as was reflected by the medical charge in order to attest to reasonableness of the charge.

Lack of “reasonable notice.”  The supreme court rejected the conclusion that the counteraffidavit failed to give reasonable notice of the charges that were being contested.  The court likened Section 18.001’s “reasonable notice” requirement to the “fair notice” requirement for pleadings.  In this case, the court held that the reasonable notice standard was met where the affiant itemized each charge being controverted and compared it to the median charges for the same service in the same time-frame and zip code.

Unreliability.  The supreme court held that the trial court abused its discretion by striking the affidavit due to the trial court’s conclusion that the affiant’s opinions were unreliable.  The supreme court held that Section 18.001 does not make reliability one of the threshold standards applicable to Section 18.001 counteraffidavits.

Limits on defendant’s evidence at trial.  The supreme court also held that the trial court abused its discretion by prohibiting the affiant from testifying at trial and by prohibiting the defendant from questioning the plaintiff’s witnesses, offering evidence, or arguing to the jury about the reasonableness of the plaintiff’s medical bills.  The court observed that Section 18.001 is purely procedural and designed to streamline a plaintiff’s proof.  The failure of a defendant to file a counteraffidavit under Section 18.001 has no impact on the defendant’s ability to challenge reasonableness and necessity of a plaintiff’s medical expenses at trial.  This last holding is consistent with the dissent in the earlier Dallas Court of Appeals case (In re Parks) that I wrote about last year.

Whether a defendant can be sued in the courts of a particular state depends upon the defendant’s presence in the state.  If the defendant lives there, or in the case of an entity, has its principal place of business there or is incorporated there, the defendant has availed itself of the state’s jurisdiction and may be sued there.  But what if the defendant simply engages in some level of business there?  The defendant must have taken some purposeful act by which it availed itself of the privilege of conducting business in the state in order to be subject to suit in the state.  The Supreme Court has required that there be some affiliation between the state, the defendant’s activity, and the controversy at hand in the lawsuit. The test recited for this analysis is whether the plaintiff’s claims “arise out of or relate to the defendant’s contacts” with the forum state.

Before last month’s decision in Ford Motor Co. v. Montana Eighth Judicial Dist. Court, No. 19-368, 221 U.S. LEXIS 1610 (Mar. 25, 2021), many courts had described this test as a but-for, causal nexus requirement between the plaintiff’s claims and the defendant’s contacts with the forum state.  But in the recent Ford Motor Company opinion, a majority of justices on the U.S. Supreme Court expressed a view of the test that broadens its scope.  Writing for herself and four other justices on the court, Justice Kagan wrote that the first half of the standard—arise out of—does indeed ask about causation.  However, she wrote that the second half of the standard—relate to—“contemplates that some relationships will support jurisdiction without a causal showing.”  She emphasized that the “relate to” standard does impose limits that protect defendant from being hauled into a jurisdiction when there would be no expectation of being sued there.

The facts of the two consolidated cases decided by the opinion in the Ford Motor Company case illustrate how the jurisdiction test now works.  Both lawsuits involved auto accidents where a Ford vehicle was being operated.  In one case, the plaintiff was driving a Ford Explorer in the state of Montana when the accident occurred.  The vehicle had originally been sold in Washington state.  It was designed in Michigan and manufactured in Kentucky.    Suit was brought against Ford in Montana for design defects, failure to warn, and negligence.

In the other suit, the plaintiff was a passenger in a Crown Victoria when the accident occurred in Minnesota.  This vehicle was designed in Michigan, manufactured in Canada, and originally sold in North Dakota.  Suit was brought against Ford in Minnesota for design defects, negligence, and breach of warranty.

In each of these suits, if the “arise out of or relate to the defendant’s contacts” test was a but-for, causal analysis, then it is difficult to see how the plaintiffs’ respective claims arise out of or relate to Ford Motor Company’s activities in Montana or Minnesota, given that the design, manufacture, and sale of the vehicles occurred elsewhere.  But Ford clearly markets, sells, and services these vehicles all over the country, including Montana and Minnesota.  Under Justice Kagan’s expanded view of the “relate to” portion of the test, the plaintiffs’ respective claims can now be said to relate to Ford’s broader activities in Montana and Minnesota, such that Ford may be sued in those states.

Justice Alito concurred in the result, but wrote separately to express his concern that the majority needlessly complicated the analysis by its reinterpretation of “relate to.”  He felt that the original “minimum contacts” test espoused in 1945 in International Shoe was sufficiently broad to allow Ford to be sued in Montana and Minnesota.

Justice Gorsuch, joined by Justice Thomas, also concurred in the result, but wrote separately to suggest that the majority was using new words to express old ideas.  They suggested that the jurisprudence of personal jurisdiction might need a remake from the top down to bring practical meaning and understanding to it.

The Dallas Court of Appeals has held that the Texas Commission on Human Rights Act (TCHRA) and its prohibition against unlawful employment practices because of sex, encompasses claims for unlawful employment practices because of sexual orientation.  This interpretation is the first for an appellate court in Texas and the court’s analysis follows the United States Supreme Court’s holding from last year in Bostock v. Clayton County, Georgia, 140 S. Ct. 1731 (2020).

Discrimination Claim

The procedural posture in Tarrant County College District v. Sims, No. 05-20-00351-CV (Tex. App.—Dallas Mar. 10, 2021, n.p.h.), is a little unusual.  Plaintiff Amanda Sims filed suit against her former employer, Tarrant County College District (TCCD), claiming that she was discriminated against because of her sexual orientation, and alleging violations of the Texas Constitution and the Texas Whistleblower Act.  TCCD filed a plea to the jurisdiction and sought to dismiss Sims’ claims on the basis of sovereign immunity.  TCCD sought dismissal of Sims’ Whistleblower Act claims in part because it contended that the TCHRA provided the exclusive remedy of Sims’ discrimination and anti-retaliation claims.   In short, TCCD asserted that the TCHRA is applicable to claims for discrimination based upon sexual orientation.  Sims’, however, asserted that the TCHRA did not preempt her claims because she asserted that the TCHRA does not prohibit sexual orientation discrimination.

TCCD Appeal

In TCCD’s appeal of the denial of its plea to the jurisdiction, the Dallas Court of Appeals was presented with the jurisdictional question of whether the TCHRA preempts Sims’ sexual orientation discrimination claims because of the fact that the Act applies to unlawful employment acts “because of sex.”  Writing for the court of appeals, Justice Craig Smith noted that the TCHRA was enacted to address workplace discrimination and to conform with federal anti-discrimination and retaliation laws under Title VII of the Civil Rights Act.  After noting that the Texas Supreme Court has advised that Texas courts should look to federal law for guidance when the TCHRA and Title VII contain analogous language, the opinion turned to the U.S. Supreme Court’s interpretation of Title VII’s analogous language that was at issue in the Bostock case.

In Bostock, the U.S. Supreme Court observed that while the U.S. Congress likely did not have sexual orientation in mind when it enacted Title VII, the plain wording is controlling such that when an employer fires an individual for being gay or transgender, a violation of the act has occurred.  Bostock, 140 S. Ct. at 1737, 1754.   The Dallas Court of Appeals concluded that Bostock’s reasoning required that Texas’s law be construed in the same fashion to prohibit discrimination based on an individual’s status as a homosexual or transgender person.  Thus, the court held that the TCHRA was applicable and forecloses Sims’ claims for relief under the Texas Whistleblower Act.

Justice Schenck filed a concurring opinion in which he asserted that it was unnecessary for the majority to reach this question because he asserted that the issue had not arisen in an adversarial posture.  He further opined that the language of the TCHRA must be construed according to the language in use at the time and the language at the time would not have allowed for the construction given to it by the majority.  He further accused the majority of exceeding its role of interpreting the law.

Last year, I reported that the Texas Supreme Court granted a record number of petitions for review in cases where the court of appeals had issued an opinion designated as a “Memorandum Opinion.”   The statistics seem to dispel the notion that there is an inherent bias against review of “Memorandum Opinions.

In 2020, the number of petitions granted in cases where the court of appeals had issued a Memorandum Opinion returned to a level in line with prior years reviewed, at 35%.  In my view, this is still a hefty number when one considers that Memorandum Opinions (by court rule) are supposed to be reserved for more routine rulings and if the case is routine, it is less likely to be of interest to the Texas Supreme Court.

Cases involving a court of appeals Memorandum Opinion had a higher percentage of reversals (79%) than cases involving a court of appeals Opinion (74%).

This past year presented some unique challenges for the judiciary, and specifically for the Supreme Court of Texas.  The court confronted a pandemic, a ransomeware attack, and some unusual election-year court filings.  In spite of these challenges, the court persevered and performed.  Here’s what my initial calculations show:

  • During the 2020 calendar year, the court disposed of 97 causes, consisting of 82 petitions for review, 12 original proceedings, and 3 certified questions.  By comparison, last year, the court disposed of 88 causes, and in 2018, the court disposed of 98 causes.
  • 30 of the causes were disposed of by per curiam opinions (unsigned opinions).  Last year, the court issued 19 per curiam opinions.  In 2018, the court issued 24 per curiam opinions.
  • The number of opinions in original proceedings was higher than the prior year.  Some of the increase is due to election-year filings.
  • The reversal rate in causes from petitions for review remained steady at 77%.
  • One new statistic that I looked at was the number of causes with unanimous opinions.  Excluding per curiam opinions, there were 65 unanimous opinions in causes from petitions for review, 10 unanimous opinions in original proceedings, and 2 unanimous opinions in certified question causes.  Overall there was some disagreement in 20 percent of the court’s decisions.

I will be releasing additional statistics from the 2020 term in the coming weeks, so stay tuned…

Cases involving questions on the admissibility of evidence rarely rise to the level of importance that the Texas Supreme Court gets involved.  Yet these questions routinely arise in the trial courts and are fundamental to trial practice.  The Texas Supreme Court recently examined an evidence question involving the admissibility of public records.

In Fleming v. Wilson, the defendants moved for summary judgment on the defense of collateral estoppel.  They supported their motion by attaching a jury verdict form and a judgment from a prior case (tried by the same trial judge).  The verdict form and judgment were not certified or authenticated copies, but they bore a watermark stating that they were unofficial copies of the district clerk, they contained the district clerk’s initialed, file-stamp, and they each had the trial judge’s signature on them.

The plaintiffs objected on the grounds that the documents were not certified or authenticated.  The trial court overruled the objections and granted summary judgment in favor of the defendants.  The plaintiffs appealed.

On appeal, the court of appeals reversed the summary judgment after concluding that the judgment and jury verdict were not sufficiently authenticated.

The Texas Supreme Court reversed the court of appeals judgment and reinstated the trial court’s summary judgment.  The court rejected the idea that if a document is not self-authenticating (as some documents are) that the proponent of the document must necessarily introduce some additional, extrinsic evidence to authenticate the document.

Turning to Texas Rule of Evidence 901, the court observed that it contains a non-exclusive list of examples of documents and how those documents might be authenticated.  Some of those examples indicate a need for extrinsic evidence, but others do not.

With respect to the jury verdict and judgment that were the documents in question, the court held that they were properly authenticated based upon two separate examples found in Rule 901.

Paragraph (b)(4) states:

Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

Paragraph (b)(7) states:

Evidence About Public Records.

Evidence that:

(A) a document was recorded or filed in a public office as authorized by law; or

(B) a purported public record or statement is from the office where items of this kind are kept.

Because the jury verdict and judgment bore a diagonal watermark from the district clerk’s office, a stamp, and signature noting when they were filed in the clerk’s office, and the trial judge’s own signature, the court held that the trial court did not abuse its discretion by treating the documents as authentic under paragraph (b)(4).

Further the court noted that under paragraph (b)(7) an uncertified public record might be authenticated if it contains sufficient evidence that it was filed or kept in a public office.  Here, the court concluded that the watermark and file-stamp were sufficient such that the trial court could not be said to have abused its discretion by finding the documents authentic.

For the readers’ benefit, links to the documents at issue showing the watermark, file-stamp, and signature may be found at this link.

The breadth of the Fleming  holding remains to be seen.  In particular, suppose the documents had only the judge’s signature on them, or only the the clerk’s file-stamp (now usually electronic).  Would the either of those facts qualify the documents for authentication under Rule 901?

At a recent continuing education seminar, one of the presenters stated as a fact that amounts awarded in a judgment for prejudgment interest do not need to be included in the amount of a supersedeas bond.  The presenter cited the Texas Supreme Court’s opinion in In re Nalle Plastics Family Ltd. Partnership, 406 S.W.3d 168 (Tex. 2013), as support for this statement.  There’s just one problem with relying on Nalle Plastics for this proposition—the issue in that case is whether attorney’s fees must be included in the amount of a supersedeas bond.

Nevertheless, Nalle Plastics has been relied upon by at least two intermediate appellate courts for the proposition that prejudgment interest does not have to be included in the total amounts that must be superseded.  Moreover, two of the justices that served on the panels of the intermediate appellate courts that decided those cases are now Texas Supreme Court justices.

Let’s see how we got to this point.  Of course, the starting point of any analysis is to look at what the supersedeas statute says.  Texas Civil Practice and Remedies Code Section 52.006(a) provides:

when a judgment is for money, the amount of security must equal the sum of:

(1)  the amount of compensatory damages awarded in the judgment;

(2)  interest for the estimated duration of the appeal;  and

(3)  costs awarded in the judgment.

Tex. Civ. Prac. & Rem. Code § 52.006(a).  The issue in Nalle Plastics was whether attorney’s fees had to be included in the amounts to be superseded.  The opinion focused upon whether attorney’s fees are “compensatory damages” and whether they are “costs.”  In addressing the issue of whether attorney’s fees are compensatory damages, the court observes that not every amount can be considered damages, even if it is compensatory.  As examples of other recoveries that may be compensatory but still not be damages, the court states, “court costs make a claimant whole, as does pre-judgment interest. Yet it is clear that neither costs nor interest qualify as compensatory damages. Otherwise, there would be no need to list those amounts separately in the supersedeas bond statute.”  Thus, the Court concludes that except for attorney’s fees that are awarded as damages (such as when an attorney sues a client for non-payment of fees), fees are not “compensatory damages” damages under Section 52.006(a)(1) that must be included in the amount of security for a supersedeas bond.

The Nalle Plastics dicta that court costs and interest are not “compensatory damages” under Section 52.006(a)(1) gets picked up later by both Houston appellate courts to arrive at the conclusion that prejudgment interest does not have to be included in the amounts superseded.

In Kennedy Con., Inc. v. Forman, 493 S.W.3d 103 (Tex. App.—Houston [14th Dist.] 2014, opinion on motion), the court considered a challenge to the amount of a supersedeas bond due to the fact that the amount did not include prejudgment interest.  Quoting Nalle Plastics, the Kennedy Court holds that there was no abuse of discretion in omitting prejudgment interest because prejudgment interest is not compensatory damages.

Two years later, the Houston First District Court of Appeals, when faced with the same question, quotes Nalle Plastics and cites Kennedy in holding that there was no abuse of discretion in omitting prejudgment interest because it is not “compensatory damages.”  Eagle Oil & Gas Co. v. Shale Explor., LLC, 510 S.W.3d 92 (Tex. App.—Houston [1st Dist.] 2016, opinion on motion).

Before relying upon any of these three authorities, practitioners should consider two things.  First, the reason the  Nalle Plastics Court said that prejudgment interest would not be compensatory damages is because the legislature had separately itemized interest as something to be included in the amount superseded in Section 52.006(a)(2) of the Civil Practice and Remedies Code.  Thus, merely saying that it is not “compensatory damages” doesn’t end the inquiry.

Second, arguably Section 52.006(a)(2)’s use of the phrasing “interest for the duration of the appeal” might be said to be limited to post-judgment interest, since by definition this phrasing describes post-judgment interest.   Such a construction of Section 52.006(a)(2) might require determining whether the dicta in Nalle Plastics precludes prejudgment interest from being “compensatory damages.”  It may be helpful to look at the dozens of Texas Supreme Court opinions that have uniformly described prejudgment interest as “compensatory” and often described it as form of damages.  See, e.g., Columbia Hosp. Corp. v. Moore, 92 S.W.3d 470, 473 (Tex. 2002) (“Prejudgment interest was, and continues to be, ‘compensation allowed by law as additional damages for lost use of the money due as damages during the lapse of time between the accrual of the claim and the date of judgment.’”).

The Texas Supreme Court may ultimately hold that prejudgment interest is not an amount that must be superseded during an appeal, but for now, practitioners may want to be avoid advising clients that it is a foregone conclusion that prejudgment interest will not have to be superseded.