Scott P. Stolley and Meghan Nylin 2012-12-26 02:21:07
The Texas Supreme Court had an eventful 2012, with some important rule changes, many notable opinions, and two justices leaving the court. Regarding personnel changes, Justice Dale Wainwright, the third longest-serving justice on the court, resigned effective Sept. 30, 2012. To replace Wainwright, Gov. Rick Perry appointed Jeffrey S. Boyd, who took the oath of office on Dec. 3 and is subject to Senate confirmation. Also, Justice David Medina lost in the Republican primary to John Devine, a former district judge from Houston, who will take office Jan. 1, 2013. Regarding rule changes, the court has jettisoned page limits for appellate briefs and instituted word-count limits instead. Effective Dec. 1, 2012, opening briefs that are computer- generated are limited to 15,000 words, while reply briefs are limited to 7,500 words. Other word-count limits will apply to other types of briefs. This change gives counsel more flexibility to improve readability through good typography. The court has also proposed new rules for (1) expedited handling of cases less than $100,000; (2) dismissal of cases with no basis in law or fact; and (3) standardized forms for certain uncontested divorces. Turning to case developments, the court in Thota v. Young, 366 S.W.3d 678 (Tex. 2012), clarified what it takes to preserve Casteel error in a jury charge. In this medicalmalpractice case, the trial court submitted a single liability question asking whether either the doctor or the patient was negligent. Id. at 682. The plaintiff objected that the charge improperly submitted contributory negligence and improperly included inferential-rebuttal instructions. Id. The Supreme Court ruled that the plaintiff could preserve the alleged Casteel error without referring to Casteel. Id. at 691. But the court ultimately concluded that Casteel did not apply since this was a single-theoryof- liability case, and the inferential-rebuttal instructions did not create Casteel error. Id. at 693. In Centocor Inc. v. Hamilton, 372 S.W.3d 140, 157-58 (Tex. 2012), the court held that the learned-intermediary doctrine applies in pharmaceutical products-liability cases. Under that doctrine, a manufacturer satisfies its duty to warn consumers by providing an adequate warning to an intermediary, who then assumes the duty to convey this warning to consumers. The court left open whether the doctrine would apply when the manufacturer directly markets misleading information to consumers. Id. at 162. The court upheld the state franchise tax in In re Nestle USA, Inc., — S.W.3d —, No. 12-0518, 2012 WL 5073315 (Tex. Oct. 19, 2012). Nestle contended that the franchise tax bears no reasonable relationship to its pur- pose, violates the Texas Constitution’s mandate that “taxation shall be equal and uniform,” and violates the 14th Amendment and the Commerce Clause of the U.S. Constitution. Id. at *1. In rejecting the non-uniformity challenge, the court ultimately concluded that the facts Nestle offered actually showed an attempt by the Legislature to treat like taxpayers alike. Id. at *8-9. This conclusion also foreclosed Nestle’s equal-protection challenge. Id. at *9. Additionally, the court found that due process was not violated because the tax is “payment for the privilege of carrying on business in Texas.” Id. One of the big themes in this year’s opinions was property rights. The court decided several cases related to condemnation. See Enbridge Pipelines (East Texas), L.P., v. Avinger Timber, LLC, — S.W.3d —, No. 10-0950, 2012 WL 3800234 (Tex. Aug. 31, 2012) (discussing the admissibility of expert testimony on valuation in a condemnation suit); City of Arlington v. Whittington, — S.W.3d —, No. 10-0316, 2012 WL 3800183 (Tex. Aug. 31, 2012) (addressing an argument that a municipality’s determination that property was taken for public use was fraudulent, in bad faith, arbitrary, and capricious); Hearts Bluff Game Ranch Inc. v. State, — S.W.3d —, No. 10-0491, 2012 WL 3800186 (Tex. Aug. 31, 2012) (addressing an inverse-condemnation claim); Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Tex., L.L.C., 363 S.W.3d 192 (Tex. 2012) (holding that an entity’s registration as a common carrier does not conclusively establish that the entity has eminent-domain power, and a landowner may therefore judicially contest the exercise of eminent domain). The court also held, in a landmark opinion, that a landowner has an ownership interest in groundwater in place, so that the landowner is entitled to adequate compensation if the water is taken for public use. Edwards Aquifer Auth. v. Day, 369 S.W.3d 814, 838 (Tex. 2012). Finally, the court decided two important easement cases. Severance v. Patterson, 370 S.W.3d 705 (Tex. 2012) (holding, as a matter of first impression, that public easements do not roll or spring when the vegetation or high-tide lines change as a result of avulsive events); Oncor Elec. Delivery Co., L.L.C., v. Dallas Area Rapid Transit, 369 S.W.3d 845 (Tex. 2012) (concluding that a statute waived governmental immunity and allowed an electric utility to obtain an easement across public land under certain circumstances). SCOTT P. STOLLEY is a partner and the leader of the Appellate Practice Group at Thompson & Knight, L.L.P., in Dallas. He is board certified in Civil Appellate Law by the Texas Board of Legal Specialization. MEGHAN NYLIN is an associate at Thompson & Knight, L.L.P., in Dallas. She is a former law clerk to 5th Circuit Judge Catharina Haynes.
Published by State Bar of Texas. View All Articles.
This page can be found at http://mydigimag.rrd.com/article/Texas+Supreme+Court+/1271734/140244/article.html.