This morning, the Texas Supreme Court issued a per curiam opinion in a case which concludes that a guardian ad litem’s fee was unreasonable and remands to the trial court the issue of the reasonableness of the fee. The case discusses the applicable standard for evaluating an ad litem’s fee and is an important one for anyone who litigates cases in which settlements are made on behalf of minor children. The underlying case stemmed from a Land Rover rollover involving a family of four. The parents and one of the children survived, but the other child was killed in the rollover. The parents, the estate of the killed son, and the surviving son (the brother) brought claims against vehicle manufacturer and the tire manufacturer. When settlement became a possibility, the trial court appointed a guardian ad litem to represent the interest of the surviving brother. The tire company, as part of its settlement, paid the ad litem $45,000.00. When the ad litem requested $100,000.00 from Land Rover, however, Land Rover objected. The trial court ultimately awarded the guardian ad litem $100,000.00 in fees assessed against Land Rover, Land Rover appealed, and the 13th Court of Appeals affirmed the fee award. According to the Court of Appeals, the plaintiffs’ attorneys submitted evidence of the ad litem’s having spent in excess of 150 hours on the extremely complex case, of his impressive reputation, and of his customary hourly rate of $500.00. That being the case, evidence supported the award, and the Court of Appeals affirmed, writing that “courts of appeals are not factfinders, and thus, are not free to second-guess a factual determination made by a trial court under an abuse of discretion standard of review.” The Supreme Court, however, reversed both courts, on the basis that the fee was unreasonable. According to this morning’s opinion, a guardian ad litem must represent the interest of the minor, but not serve as the minor’s attorney. Therefore, the role does not allow for the ad litem to expend large amounts of time duplicating work performed by the plaintiffs’ attorney. In this case, according to the Supreme Court, the ad litem did just that. Additionally, according to the Court, since the ad litem did not really keep track of his time it was difficult for him to justify the amount of his fee, even assuming an hourly rate of $500.00. Land Rover v. Juan Hinojosa, ___ S.W.3d ___ (Tex. 2006) (Cause No. 04-0794).

This morning, the Texas Supreme Court issued opinions in eleven cases. None has to do with Texas arbitration law. Two have to do with premises liability actions, one of which seems to be an important case based on a quick skimming. We will blog on it in detail as time permits, hopefully later today. For the rest, however, we will offer the following brief summary: Brookshire v. Taylor. This is the seemingly important premises liability case. The majority opinion, written by Justice Hecht, holds that a soft drink dispenser with a propensity to spill ice which melts and becomes slippery is not an unreasonably dangerous condition. An actual rogue ice cube which has escaped to the floor could be, and it could be actionable if the store is aware of the melting (or melted) cube and yet fails to act. However, Justice Hecht notes that since the ice in question had not fully melted when it caused Ms. Taylor to slip, there could be no evidence that it existed long enough for the store to have constructive notice of its existence. In other words, its partially-frozen quality was in and of itself evidence that Ms. Taylor had no evidence that Brookshire had knowledge of the dangerous condition, according to Justice Hecht, and the trial court’s failure to grant summary judgment in Brookshire’s favor was reversed and remanded. Justice Johnson’s concurrence highlights confusion in this area of the law between traditional premises liability claims, which emphasize the condition of the premises, and negligent activity claims, which emphasize the property owner’s activity on the premises. He notes that the Court’s 1992 decision in Keetch v. Kroger signifies a refusal by the Court to preclude negligent activity actions and subsume them into premises liability claims, but he expresses a desire that the Court re-examine the distinction, an opportunity he says the Taylor case did not provide. Finally, in her dissent, Justice O’Neill writes that summary judgment was inappropriate, even if Brookshire was unaware of the danger of the specific ice cube that injured Ms. Taylor. She alludes to the negligent activity standard which is the subject of Justice Johnson’s dissent, but she does not specifically rely on it. Instead, she concludes: Like the defendant in Rodriguez, Brookshire may not have been able to prevent ice from falling on the floor, but it had a duty to customers to prevent the ice that did fall from causing a dangerous condition. Given the evidence that Brookshire was aware ice falling on the exposed tile floor was a continuous problem but did not provide additional matting or warning signs to make the area safe, a question of fact exists as to whether Brookshire had constructive knowledge of an unreasonably dangerous condition. Bulanek, et al. v. Westtex 66 Pipeline Co.. Pipeline easement condemnation case. Barker, et al. v. Eckman. Bull semen breach of bailment case. The opinion discusses the statute of limitations that applies in bailment cases, and an issue relating to attorneys’ fees. Specifically, the opinion discusses the situation where a trial court awards a prevailing plaintiff attorneys’ fees but the court of appeals subsequently reduces the damage award, but still holds that the plaintiff was entitled to some recovery (just not as much). In such a situation, should the jury be allowed to re-assess the attorneys’ fee award after the appellate reduction of the damages award, as “results obtained” was a factor used in making the fee award? In this case, yes, according to the Court. Lexington Insurance Co., et al. v. Strayhorn. Case involves the taxation of insurance premiums in Texas and the question of who should pay that tax. Tran, et al. v. Macha. Adverse possession of a driveway by a longtime neighbor stemming from a contractor’s error in the 1930s that caused him to assume lots were 50 feet wide, rather than 55 feet, and build houses on them accordingly. Fascinating, really. DPS v. Alford. DWI case involving the administrative suspension of a commercial driver’s license. City of Dallas v. Thompson. Another premises case, this one against the City of Dallas based on a missing screw at Love Field. Not as broad and seemingly important as the Brookshire case, but has some things maybe worth blogging a bit more about, if time permits. Chisholm v. Chisholm. Divorce case. Supreme Court reverses a divorce decree on the basis that it was not in fact agreed-on when the trial court entered it. Has some interesting dicta about family law practice in Bexar county. We don’t do family law, but it seems the case presents a very practical issue that must come up a lot in those proceedings. In the Interest of H.R.M.. Termination of parental rights case. In the Interest of R.R. and S.J.S.. Another termination of parental rights case. City of Waco v. Abbott Open records case involving the potential confidentiality of victim names in arrest warrant affidavits. The opinion simply vacates the Court of Appeals’ opinion based on a subsequent settlement. Technorati Tags: litigation, Texas Supreme Court, law

The Third Court of Appeals issued an opinion on interlocutory appeal this morning affirming a trial court’s denial of a plea to the jurisdiction filed by the Austin Independent School District. The opinion clearly states that an AISD employee’s claim against the district for violation of the Texas Commission on Human Rights Act (the “Act”) is NOT a claim that the employee has been aggrieved by the school laws of the state, and accordingly the employee is not required to exhaust administrative remedies with the Texas Education Agency prior to initiating litigation. The case involved a school bus driver who was, she claimed, constructively discharged by the AISD as a result of her anxiety disorder. She filed discrimination claims with the EEOC and the Texas Commission on Human Rights, thus arguably exhausting her administrative remedies under federal and state anti-discrimination laws (the Court did not consider the AISD’s argument that she had actually not exhausted administrative remedies under the Act). After receiving right to sue letters from the EEOC and the TCHR, the plaintiff sued the AISD in Travis County District Court, alleging disability-based discrimination. The AISD filed a plea to the jurisdiction, claiming that AISD employees are required to pursue administrative remedies with the TEA prior to suing. The AISD’s argument was based on a provision of the Texas Education Code which gives the TEA jurisdiction over claims that an employee was aggrieved by “the school laws of the state” or by a breach of an employee’s employment contract. The Third Court of Appeals was unpersuaded by the AISD’s argument, holding that a discrimination claim is not a claim that the AISD violated the school laws of the state. AISD did not demonstrate in its plea to the jurisdiction, appellate brief, or at oral argument how Lowery’s discrimination claim pertained to the administration of any school law. . . . We have not found, and AISD has not cited, any case holding that a school district employee’s discrimination claim under the Act pertains to the administration of school laws, such that the employee must exhaust the school district’s and the education code’s administrative remedies before a trial court may exercise jurisdiction over the discrimination claim. The Court ends up holding that “An employee of a school district who brings suit for discrimination under the Texas Commission on Human Rights Act is not aggrieved by the school laws of this state. Therefore, she need only exhaust the administrative remedies imposed by the Act and is not required to exhaust a local school district’s grievance procedures or any other administrative remedies found in the education code.” In a concurring opinion, Justice Pemberton writes that the majority “sweeps unnecessarily broadly” by not limiting its holding to the facts of this particular case. In other words, Justice Pemberton would have held that this discrimination claim did not invoke the school laws of the state, rather than discrimination claims generally. A.I.S.D. v. Lowery, Cause No. 03-06-00169-CV Technorati Tags: litigation, Third Court of Appeals, law

According to the Texas Secretary of State, our good friend, colleague, office-mate and frequent co-counsel Diane Henson has won her election to the Third Court of Appeals. We look forward to blogging about her opinions, which will invariably be well-written, thorough and absolutely devoid of typos. While we selfishly hate to lose her, we can say without question that her election is good for Texas. Also, if the judicial results reported by the Austin American Statesman are accurate, Diane is the only democrat in the entire state to win a judicial race in the Supreme Court, Court of Criminal Appeals, or in any of the Texas Courts of Appeals. In other words, she won because she spent countless hours on the campaign trail convincing people who would otherwise not vote for a democrat to vote for her. It’s amazing what intelligence, common sense and a willingness to work absurdly hard can accomplish. Technorati Tags: litigation, Third Court of Appeals, law, politics