Amicus Briefs

TCJL Amicus Brief Program Policy and Procedures

The TCJL Amicus Program is provided as a member benefit to League members only. All requests should be submitted to the TCJL Amicus Committee. Please include:

1. TCJL member name;
2. brief summary of the issue;
3. names of all parties;
4. names of all counsel;
5. other existing or planned amici, if known; and
6. a list, copies, or links to all available filings, opinions, or other relevant documents, including lower court rulings.

The TCJL Amicus Committee will review for relevance and suitability to League mission and policy goals.

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10-25-15 Amicus Report:  Current Amicus Issues with Potential Legislative Implications

1.         Denbury Green Pipeline-Texas, L.L.C.  v. Texas Rice Land Partners, Ltd., Et Al. (15-0225)

This case arose from the SCOT’s decision in Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, 363 S.W.3d 192 (Tex. 2012), in which the Court held that a certificated common carrier pipeline had to establish a “reasonable probability” of public use in order to exercise the power of eminent domain to acquire right-of-way for a project. Following remand, the trial court ruled on summary judgment in favor of Denbury. The Beaumont Court of Appeals reversed the trial court, holding that the common carrier’s subjective intent when a pipeline project is planned controls the determination of “reasonable probability” despite evidence of actual contracts between the carrier and unaffiliated third parties.

In its brief, TCJL argues that nothing in the Supreme Court’s opinion in Denbury leaves it to a finder of fact to interpret a carrier’s subjective “intent.” In plain language, the phrase “person intending to build” a pipeline simply means a carrier seeking common carrier status under §111.002(6), Natural Resources Code. Intending to build a pipeline and intending to operate the pipeline in a certain manner are very different things, which is precisely why this Court focused on the “reasonable probability”—“one that is more likely than not”—of the pipeline’s use after construction.[1] It follows that when weighing summary judgment evidence in a challenge to an entity’s common carrier status, a court should conduct an objective analysis of the typical uses of similar pipelines in the same area or region, as well as other factors, such as the determination of common carrier status by the appropriate state agency, the business plan of the carrier seeking to build the pipeline, the existing and future markets for the product or products to be transported by the carrier, and other factors the court deems probative of “reasonable probability.” The Court of Appeals sidestepped this analysis by focusing entirely on the subjective intent of the carrier and ignoring, for example, both the actual use of the pipeline and the developing markets for carbon dioxide use and sequestration in carrier’s immediate service area. The Supreme Court has not yet decided whether to grant review.

2.         TIC Energy and Chemical, Inc. v. Kevin Bradford Martin (15-0143)

This case involves a potentially serious misreading of two sections of the Labor Code giving general contractors the ability to become the “statutory employer” of a subcontractor and the subcontractor’s employees for purposes of workers’ compensation insurance coverage. The Corpus Christi Court of Appeals reversed a trial court’s grant of summary judgment to TIC on the basis that the statutory provision defining an “independent contractor” and that allowing contractor controlled insurance programs cannot be reconciled. This ruling contradicts numerous holdings from other Courts of Appeals and the Texas Supreme Court. TCJL’s brief outlines the legislative history of these provisions to show not only that the statutes operate in harmony, but the public policy rationale of the Legislature to encourage general contractors to provide workers’ compensation coverage for everyone on a jobsite. The Supreme Court is considering whether to grant review, which we hope will be done in the near future.

3.         UDR Texas Properties, L.P. D/B/A The Gallery Apartments, United Dominion Realty Trust, Inc., ASR of Delaware, L.L.C., and UDR Western Residential, Inc. v. Alan Petrie (15-0197)

In this important premises liability case, the Fourteenth Court of Appeals (Houston) held that the owner of an apartment complex could be held liable for criminal conduct on the premises on a finding that a crime in the area was merely “foreseeable,” rather than a finding that the risk of criminal conduct on the premises was so great as to impose on the owner a duty to prevent criminal conduct. TCJL argues that the Court of Appeals’ ruling violates the SCOT’s decision in Timberwalk Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 756 (Tex. 1998) and creates substantial uncertainty in Texas premises liability law that could have far-reaching effects on the economic viability of businesses, especially those located in communities with higher crime rates. These communities are precisely the ones that need redevelopment to attract housing, businesses, and schools in order to reduce crime and make them attractive and safe for people to live and work. The Court has not yet granted review in this case.

4.         Texas Department of Insurance, Division of Workers’ Compensation v. Bonnie Jones and American Home Assurance Company (15-0025)

TCJL’s brief argues that Dallas Court of Appeals erred in affirming a trial court judgment that disregarded explicit provisions of the Texas Workers’ Compensation Act applying to a claim for supplemental income benefits. In doing so, the Court infringed on the Legislature’s prerogative to establish the specific conditions that determine eligibility for benefits and the public policy objectives that a claimant to make a serious effort to return to employment as soon as possible after a workplace injury. The Court’s decision also threatens to reopen the system to a new stream of litigation that will raise the cost of workers’ compensation insurance and make it more difficult for employers to provide workers’ compensation coverage for their employees. The Court has not yet granted review in this case.

5.         Occidental Chemical Corporation v. Jason Jenkins (13-0961)

This important case involves the interpretation of the 10-year statute of repose for claims against persons who construct or repair real property. The First District Court of Appeals (Houston) ruled that the statute of repose does not apply to a premises owner that performs construction work directly and through third party contractors. The decision thus nullifies the statute if a third party hired by the owner performs any part of the construction or repair. TCJL argues that the Court of Appeals’ interpretation of the statute would radically and adversely alter ordinary industry practices in Texas and potentially threaten the viability of major construction projects in the state. The SCOT has granted review in this case.

[1] Denbury at 202, n. 29.

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Briefs Filed

Case	Occidental Chemical Corporation v. Jason Jenkins (No. 13-0961)
TCJL Amicus Brief Date	April 23, 2014
Court	Texas Supreme Court 13-0961 activity
TCJL Brief Link	OCC v Jenkins
Summary	The First District Court of Appeals erred in reversing the trial court’s determination that the Respondent’s claim was barred by Texas’s ten-year statute of repose for engineers who design, plan, and inspect improvements to real property. If the Court of Appeals’ decision is permitted to stand, it will effectively nullify the statute and subject engineers to continuing and indefinite liability for alleged design defects. In addition to having the potential to substantially raise the cost of engineering services and insurance, the decision is so far out of step with the national mainstream of tort law that businesses, especially those that must allocate capital investment to facilities located both within and outside of Texas, may decide that the potential costs of investing in improvements to real property in Texas are too great.

On April 23 TCJL filed an amicus brief with the Texas Supreme Court in Occidental Chemical Corporation v. Jason Jenkins (No. 13-0961). In its brief, TCJL asks the Court to grant review of a First District Court of Appeals (Houston) decision to reverse the trial court’s determination that the Respondent’s personal injury claim against Occidental was barred by the 10-year statute of repose that applies to claims against registered and licensed engineers, architects, and other professionals that design, plan, and inspect improvements to real property. Tex. Civ. Prac. & Rem. Code § 16.008.

TCJL argues that the First District Court of Appeals erred in reversing the trial court’s determination that the Respondent’s claim was barred by Texas’s ten-year statute of repose for engineers who design, plan, and inspect improvements to real property. If the Court of Appeals’ decision is permitted to stand, it will effectively nullify the statute and subject engineers to continuing and indefinite liability for alleged design defects. In addition to having the potential to substantially raise the cost of engineering services and insurance, the decision is so far out of step with the national mainstream of tort law that businesses, especially those that must allocate capital investment to facilities located both within and outside of Texas, may decide that the potential costs of investing in improvements to real property in Texas are too great.

TCJL further concurs with amicus Texas Chemical Council that the Court of Appeals’ decision radically undermines longstanding Texas law governing premises liability by adopting a “negligent activity” theory never before applied in Texas. If allowed to stand, this radical new theory will subject property owners in Texas to temporally indefinite and unlimited liability for conditions on real property that has been conveyed to another owner. TCJL urges the Court to grant review and correct this erroneous interpretation of Texas law as well.

Other amici include the Texas Association of Manufacturers, American Chemistry Council, and U.S. Chamber of Commerce.

 

 

Case	Roy Seger, et al. v. Yorkshire Insurance Co., Ltd. and Ocean Marine Insurance Co., Ltd. (No. 13-0673)
TCJL Amicus Brief Date	August 20, 2014
Court	Texas Supreme Court 13-0673 activity
TCJL Brief Link	Seger v. Yorkshire and Ocean Marine
Summary	This Court should grant rehearing of the Petition for Review because the Amarillo Court of Appeals’ decision raises significant questions about the applicability of this Court’s decision in State Farm Fire & Cas. Co. v. Gandy, 925 S.W.2d 696 (Tex. 1996). Specifically, the Court of Appeals’ analysis of Gandy’s requirement of a “fully adversarial trial” creates a potentially dangerous trap for an insured caught between its insurer’s refusal to accept coverage or tender a defense under a CGL policy and a judgment that would almost certainly cripple the insured’s business. A business placed in this position cannot hope for a trial at all, much less a fair and fully adversarial one, for the simple reason that it can neither afford to mount its own defense absent the insurer’s participation nor make a reasonable settlement with a plaintiff seeking to assert a Stowers claim against that same insurer. In short, the resulting “Catch 22” effectively deprives such a defendant of its very right to the “fair trial” that Gandy sought to promote.

 

 

Case	In re Transcanada Keystone Pipeline, LP (No. 13-0514)
TCJL Amicus Brief Date	August 8, 2013
Court	Texas Supreme Court 13-0514 activity
TCJL Brief Link	In re Transcanada Keystone Pipeline, LP
Summary	TCJL fears that the decision of the Beaumont Court of Appeals creates widespread confusion, lack of predictability, and the potential for mass litigation involving whether common carriers certified under Chapter 111, Natural Resources Code, have the authority to condemn right-of-way for critical oil and gas infrastructure projects. TCJL urges this Court to clarify whether a mere allegation by a single property owner in a local forum that a certificated common carrier lacks such authority can stop a project in its tracks. If this is the case, Texas law now risks bringing vitally necessary oil and gas infrastructure projects to a complete halt, damaging state and local economies and shifting capital investment and job creation elsewhere.

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Case	Exxon Mobil Corporation v. William T. Drennen III (No. 12-0621)
TCJL Amicus Brief Date	September 25, 2012
Court	Supreme Court of Texas 12-0621 activity
TCJL Brief Link	ExxonMobil v Drennen
Summary	The Fourteenth Court of Appeals wrongly set aside a forfeiture provision in an employee incentive compensation agreement between a multinational corporate entity and a senior management employee. The agreement gave the employer the right to cancel restricted stock if the employee accepted subsequent employment with a direct competitor. Regardless of the choice of law issue, Texas courts should enforce contracts that condition post-employment benefits on the employee’s free choice whether to engage in future employment that adversely affects the employer funding those benefits.

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Case	HMC Hotel Properties II Limited Partnership and Host Hotels & Resorts, LP, f/k/a Host Marriott, LP v Keystone-Texas Property Holding Company (No. 12-0289)
TCJL Amicus Brief Date	June 28, 2012
Court	Texas Supreme Court 12-0289 activity
TCJL Brief Link	HMC Marriott Host Hotels v Keystone Holding
Summary	Amici believe that the San Antonio Court of Appeals egregiously erred by allowing a disagreement over the interpretation of a contract provision to result in tort and punitive damages of more that $60 million. If the decision is allowed to stand, it will do grave harm to Texas jurisprudence, turn back decades of progress in improving the tort liability climate of this state, and inundate this Court with cases seeking to define the limits of the San Antonio court’s expansive new theory of tort liability based on more contract disputes.

The League and the Texas Oil & Gas Association filed an amicus brief in the Texas Supreme Court requesting the court to accept review in Host Marriott, LP v. Keystone-Texas Property Holding Company, No. 12-0289. Among several issues of importance in the case, we are most concerned about the San Antonio Court of Appeals’ decision to uphold an award of punitive damages in what is essentially a breach of contract action. The TCJL/TXOGA brief argues that:

1. 1. The Court of Appeals improperly applied Chapter 41, TPRC and existing SCOT precedents with respect to the appropriate standard of “malice” to support an award of punitive damages; and
   2. By virtue of the Court of Appeals’ erroneous ruling, any dispute involving the interpretation of a contract may be converted into a tort action, thereby undermining almost two decades of liability reforms and making Texas distinctly unfavorable jurisdiction for doing business.

The League and TXOGA expressed further concern regarding the Court of Appeals’ superficial analysis of causation, but left more extensive briefing of this issue to the parties.

 

 

Case	Gene E. Phillips, Individually and d/b/a/Phillips Oil Interests, LLC, et al. v. Carlton Energy Group, LLC (No. 12-0255)
TCJL Amicus Brief Date	June 12, 2012
Court	Texas Supreme Court 12-0255 activity
TCJL Brief Link	Phillips v Carlton Second Brief:   Phillips v Carlton
Summary	TCJL believes that the Court of Appeals erred in disregarding the law of Nevada, which states that alter ego is a question of law to be determined by the court, and upholding the trial court’s submission of the alter-ego issue to the jury. In addition to correcting the Court of Appeals’ error, this Court should avail itself of the opportunity to overrule Castleberry v. Branscum, 721 S.W. 2d 270 (Tex. 1986).

The League filed an amicus brief urging the Texas Supreme Court to grant the petition for review in Phillips v. Carlton Energy Group, LLC (No. 12-0255). This case, which arose out of an unsuccessful oil and gas investment, raises important corporate law and damages issues. In its brief, TCJL argues that the Court of Appeals erred in disregarding the law of Nevada, which states that whether the corporate veil may be pierced in order to hold shareholders liable for the corporation’s actions is a question of law to be determined by the court after the jury has found the pertinent facts.

The League argues further that, in addition to correcting the Court of Appeals’ error, the Supreme Court should overrule Castleberry v. Branscum, 721 S.W. 2d 270 (Tex. 1986). That decision, one of a series of SCOT opinions from the mid-1980s that helped make Texas “the courthouse for the world,” made it much easier for claimants to succeed in veil-piercing claims.

Finally, the League urges the Court to accept review to correct the Court of Appeals’ error in allowing speculative damages for lost market value without reasonably certain proof.

Update
Septemer 26, 2013, the TCJL filed a second amicus brief in Gene E. Phillips, Individually and d/b/a Phillips Oil Interests, LLC, et al. v. Carlton Energy Group, LLC (No. 12-255), currently pending before the Texas Supreme Court. The Court heard oral argument in the case on September 11.

TCJL submitted a previous amicus brief in this case asking the Court to correct the Court of Appeals’ decision to disregard the law of Nevada, which states that alter ego is a question of law to be determined by the court. Additionally, TCJL urged the Court to revisit and overruleCastleberry v. Branscum, 721 S.W. 2d 270 (Tex. 1986). Because of the substantial size of the jury verdict in this case and the dubious evidence adduced at trial to justify it, TCJL members requested a second brief urging the Court to reaffirm that Texas law does not permit damages awards to rest on speculation, especially with respect to future income from undeveloped oil and gas in place.

The case arises from an unsuccessful business deal to develop coal seam gas in Bulgaria. At trial, the jury awarded $66.5 million in actual damages to Carlton for tortious interference with its investment contract with Phillips. The jury award was based on the plaintiff’s expert testimony regarding the future market value of potential gas resources for development in an unproven coal field, despite Phillips’ showing that no coal seam gas production had ever occurred from the field or any similar field in Bulgaria. The trial judge set aside the jury award, but the Court of Appeals reinstated it.

TCJL’s brief argues simply that resources are not reserves, and that Texas law does not permit evidence of resources, as opposed to proven reserves, to support an estimate of future income from the production and sale of oil and gas in place. Any such estimate is pure speculation and cannot be used to calculate damages in a civil action. TCJL also urges the Court to consider adopting a bright line test requiring that in order to support an award of damages, an estimate of the market value of a future income stream from an unproduced oil and gas interest rest on proven production from similarly situated oil and gas reserves.

 

 

Case	Devon Evergy Holdings, L.L.C. v. Allen (No. 12-0253)
TCJL Amicus Brief Date	October 29, 2012
Court	Supreme Court of Texas 12-0253 activity
TCJL Brief Link	Devon Energy Holdings, L.L.C. v. Allen
Summary	The court of appeals ruled that a member of an LCC who manages the company’s business operations owes a formal fiduciary duty to an individual member. In doing so, the court of appeals’ decision contradicts specific public-policy and economic-development rationales for the legislative enactment of the Texas Limited Liability Company Act (Tex. Bus. Orgs. Code §101.401, et seq), which has been critical to the success of the Texas oil and gas industry, as well as to other enterprises requiring substantial capital investment. The court of appeals’ decision also significantly expands the potential personal liability of LLC managers and enables disgruntled investors to resort to the courts to compensate them for business decisions they later regret.

 

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Case	Carla Strickland v. Kathryn and Jeremy Medlen (No. 12-0047)
TCJL Amicus Brief Date	June 1, 2012
Court	Texas Supreme Court 12-0047 activity
TCJL Brief Link	Strickland v Medlen
Summary	The Fort Worth Court of Appeals’ decision to allow damages based on the sentimental value of a pet disregards well-settled Texas law, places Texas jurisprudence far outside the national mainstream, and makes a radical policy change that should be left to the Texas Legislature.
Opinion	Opinion by Justice Willett 4-5-13. No compensation for sentimental value of dead dog.

June 1, 2012.

If a decision by the Fort Worth Court of Appeals is allowed to stand, Texas will become one of the few jurisdictions in the nation that recognizes a cause of action for the wrongful death of a pet. In Strickland v. Medlen (No. 12-0047). TCJL’s amicus brief argues that the Court of Appeals’ decision to allow damages based on the sentimental value of a pet disregards well-settled Texas law, places Texas jurisprudence far outside the national mainstream, and makes a radical policy change that should be left to the Texas Legislature.
Texas law and that of the vast majority of states do not permit sentimental damages for the death of a pet. If broad and potentially unlimited liability was imposed on pet owners, veterinary care professionals, animal shelters, local governments, motor vehicle owners and operators, and myriad other parties that may come into contact with a pet, the increased risk will be passed on in the form of substantially higher insurance premiums, medical and veterinary costs, and local taxes and fees. TCJL further argues that a very significant policy change of this nature should be made by the Legislature after careful review of the implications of expanding liability in this area. TCJL joined amici American Kennel Club, Cat Fanciers’ Association, Animal Health Institute, American Veterinary Medicine Association, National Animal Interest Alliance, American Pet Products Association, Pet Industry Joint Advisory Council, Texas Municipal League, and Texas Veterinary Medical Association in urging the Supreme Court to accept review and reverse the Court of Appeals’ decision.

TCJL Files Amicus Brief in U.S. Supreme Court Case

UPDATE: 4-1-13 Petition Granted

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Case	Atlantic Marine vs. United States District Court for the Western District of Texas et. al. (No. 12-929)
TCJL Amicus Brief Date	March 5, 2013
Court	U.S. Supreme Court Case 12-929 activity
TCJL Brief Link	Atlantic Marine vs. J-Crew Management, Inc.
Summary	In this case, the Fifth Circuit’s decision contradicts Texas law and encourages forum shopping, putting Texas businesses at a competitive disadvantage in contract disputes over activities conducted in the state. Costly and extended satellite litigation simply to determine the choice of venue where a contract provision stipulates an otherwise permissible and appropriate forum is antithetical to the stable, predictable, and efficient administration of justice. It also has deleterious effects on the ability of businesses to assess and plan for the potential burdens of dispute resolution, thus skewing the valuation of contract services and introducing unnecessary distortions into the free market.

March 5, 2013

 

Case	Estate of Michelle Evette McCall, et al. v. United States of America (No. SC11-1148)
TCJL Amicus Brief Date	October 12, 2011
Court	Florida Supreme Court SC11-1148 activity
TCJL Brief Link	McCall v USA
Summary	In Texas, medical liability reform, the cornerstone of which is a $250,000 cap on non-economic damages for claims arising from medical negligence, has since its adoption in 2003 resulted in a direct, substantial, and sustained reduction in medical malpractice insurance costs and a correspondingly direct, substantial, and sustained increase in the number of physicians providing critical health care services, including high-risk specialty care, in previously un-served and under-served areas of the state.

The great weight of the evidence in Texas demonstrates that medical liability reform, and specifically the hard cap on noneconomic damages, has delivered on each promise made by the Legislature when it enacted H.B. 4. Since 2003, medical liability insurance premium rates have dropped precipitately and continue to fall, with savings to Texas physicians and hospitals now approaching $1 billion. The number of commercial carriers writing liability coverage for Texas physicians has increased more than three-fold, making the Texas marketplace more competitive and liability insurance both more accessible and affordable. Physicians, including practitioners with badly needed specializations, have streamed into the state, in many instances allowing previously unserved or underserved areas to offer critical care for the first time in many years. Hospitals have taken the money saved by lowering liability insurance costs and put it to good use, improving patient safety and outcomes and expanding access to care for all Texans. In Texas, medical liability reform has exceeded expectations of policymakers.

 

 

Case	Susan Bostic, et al. v. Georgia-Pacific Corporation (No. 10-0775)
TCJL Amicus Brief Date	February 15, 2013
Court	Supreme Court of Texas 10-0775 activity
TCJL Brief Link	Susan Elaine Bostic v. Georgia Pacific Corp.
Summary	TCJL concurs with the legal analysis contained in the Brief of Amicus Curiae Product Liability Advisory Council, Inc. and will not repeat that analysis here. TCJL and Dr. Blot rather seek to provide the Court with useful guidance regarding the MDL court’s application of Havner principles to the admissibility of epidemiologic evidence in this case.  Specifically, the TCJL and Dr. Blot seek to demonstrate that the MDL court’s admission of certain epidemiologic, animal, and case studies does not comport with either Havner principles or sound science.
Opinion	Opinion   August 26, 2010.  Briefs

from Dallas County and the Fifth District Court of Appeals, Dallas granted on rehearing oral argument date pending the principal issue in this case is whether or how the Borg-Warner Corp. v. Flores causation standard for asbestosis – a substantial factor test, shown by frequent, regular and proximate exposure – should apply in mesothelioma cases.

 

 

Case	James Coleman v. Soccer Association of Columbia, et al. (No. 9)
TCJL Amicus Brief Date	July 11, 2012
Court	Maryland Court of Appeals No. 9a12
TCJL Brief Link	Coleman v Soccer
Summary	The underlying case to which the brief relates is Coleman v. Soccer Association of Columbia, et al., wherein the plaintiff, “seeking to overturn the long-held position of the General Assembly, has appealed to the Court of Appeals of Maryland to replace the state’s contributory negligence doctrine that dates to 1847,” explained ATRA president Tiger Joyce.  The trial court decided not to award the plaintiff, a youth soccer coach, any damages because he largely caused his own injury when foolishly hanging on an unused auxiliary soccer goal while impaired by a controlled substance.  Joyce said his group’s brief cites the 1983 precedent, Harrison v. Montgomery County Board of Education, when the high court again upheld contributory negligence and refused to adopt comparative negligence, ruling that “change was a matter for the General Assembly.”  That the legislature had considered such change several times but did not act, the court ruled, is “indicative of an intention to retain the contributory negligence standard.”

 

 

 

 

Case	Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC (No. 09-0901)
TCJL Amicus Brief Date	October 13, 2011
Court	Texas Supreme Court 09-0901 activity
TCJL Brief Link	Texas Rice Land Partners v Denbury
Summary	TCJL fears that the Court’s opinion will have severe and adverse economic consequences for the Texas oil and gas industry, as well as the states’s economy.  Additionally, TCJL has grave concerns that by creating a cause of action based on Article 1, Section 17 of the Texas Constitution’s prohibition of the taking of property for private use, the Court has effectively transferred to the courts the regulatory function of determining whether an applicant for a permit under Chapter 111, Natural Resources Code has met the test for common-carrier status from administrative agency specifically charges by the Legislature to perform this function. We are further concerned that the Court’s test of “public use” is so vague and unworkable that trial courts across this state will find themselves embroiled in countless disputes between property owners, producers, and shippers over whether a particular pipeline might someday be used for a “public purpose.”  The ensuing confusion, lack of predictability, and risk of widely variant judicial options construing “reasonable probability” – not to mention the threat of litigation involving takings already completed under Chapter 111 permits issued prior to the date of the Court’s opinion – will bring all such projects to a complete halt, damaging state and local economies and shifting capital investment and job creation elsewhere.

April 17, 2012 update
In a decision that could have far-reaching effects on the Texas oil and gas industry, the Texas Supreme Court has reaffirmed its initial ruling in Texas Rice Land Partners Ltd. v. Denbury Green Pipeline-Texas, LLC. Last fall the Court held that a landowner may challenge the constitutionality of a common carrier pipeline’s exercise of eminent domain authority on the basis of whether the pipeline will be used for public purposes. Under prior law Railroad Commission certification of the pipeline’s common carrier status was sufficient to establish public use.

Along with a number of other amici, including the Texas Pipeline Association and Texas Oil & Gas Association, TCJL asked the Court to reconsider its decision to address industry concerns that existing and future pipeline projects could be subject to costly and time-consuming litigation in local courts along the pipeline right-of-way. If this type of expensive bottleneck indeed develops, it could significantly affect the burgeoning production of oil and gas from Texas’ shale formations by making it more difficult and expensive to acquire the necessary right-of-way for the variety of liquids necessary to tertiary recovery operations.

While the Court modified its opinion when it reissued its decision on March 2, it did not change the basis of the original holding: landowners may mount a constitutional challenge in local courts to pipeline common carrier status. Although the Denbury case itself concerned a carbon dioxide pipeline and the Court’s decision deals specifically with the section of the Natural Resources Code governing such pipelines, the Court’s reasoning is not so limited. It remains to be seen whether and to what extent additional challenges to the eminent domain authority of common carriers will result from the Denbury decision.

10-13-11
In this case the Supreme Court held in favor of the landowner that the regulatory process by which the Texas Railroad Commission certifies common pipeline carriers does not preclude a later constitutional challenge to a common carrier’s exercise of eminent domain authority pursuant to Chapter 111, Natural Resources Code. Chapter 111 has long served as the mechanism by which the state authorized oil and gas pipelines to acquire right-of-way for Texas’ energy transportation infrastructure. By recognizing a constitutional cause of action to invalidate Chapter 111 grants of eminent domain authority, the Court’s decision could subject existing and proposed pipelines to costly, piecemeal litigation and turn state courts into regulatory bodies. The long-term effects on Texas’ energy infrastructure and economy, driven in large part by massive investments in drilling and transportation in shale formations across the state, could be extremely detrimental to further capital investment and job creation in the state.

TCJL’s brief argues that in promulgating the common carrier certification process, the Legislature has determined the appropriate test for the exercise of eminent domain for a “public purpose”—the production and transportation of oil and gas for the benefit of the public, the generation of tax revenue for state and local governments, and the overall prosperity of Texas citizens.

 

Case	Aaron Glenn Haygood v. Margarita Garza de Escabedo (No. 09-0377)
TCJL Amicus Brief Date	March 2, 2011
Court	Texas Supreme Court 09-0377 activity
TCJL Brief Link	Haygood v Escabedo
Summary	Oral Argument was heard in the Texas Supreme Court on September 16, 2010 in the case of Aaron Glenn Haywood v. Margarita Garza de Escabedo from Angelina County and the 12th District Court of Appeals. The significance of this case to personal injury practice in Texas is huge. This is the first case to finally make its way to the Texas Supreme Court regarding the application of Section 41.0105 of the Texas Civil Practice and Remedies Code. This is commonly known as the “paid or incurred” rule that limits the recovery of medical expenses to the amounts actually paid or incurred by the Plaintiff. Since being passed in 2003 as a part of a larger tort reform bill, this provision has caused quite a controversy in the bench and bar. Although the statute is relatively clear in its limitation on medical expenses, the application of the rule has been a source of significant debate amount trial lawyers and judges. This debate continues to rage to this day over what evidence is to be admitted at trial on this issue.The debate concerns whether the full amount of the medical expenses charged is submitted to the jury or whether only the reduced amount that was paid by health insurance, Medicare or Medicaid should be submitted. The position of the Plaintiff’s bar is that the full amount of the medical expenses charged should be submitted with the amount awarded by the jury being reduced by the trial court at the time a judgment is entered to the amount paid or incurred. Plaintiff’s counsel argues that to do otherwise, would abrogate the collateral source rule. The position of the Defense bar is that only the amounts actually paid should be submitted to the jury. How a trial court rules on this issue is important not so much for the medical expense issue, but for how the amount of medical expenses affects the other damages awarded by a jury. It is widely believed by both sides of the bar that the amount of medical expenses considered by the jury has a significant impact on the more intangible damages awarded by a jury for elements such as mental anguish, pain and suffering or physical impairment.

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Case	Barrand, Inc., John R. Brown, Barbara Brown, Burgerworks, Inc., Carmel Davis and Denise Sumrall v. Whataburger, Inc. (No. 13-05-142-CV)
TCJL Amicus Brief Date	April 30, 2007
Court	Texas Supreme Court 07-0109 activity
TCJL Brief Link	Barrand v Whataburger
Summary	TCJL requested that the Texas Supreme Court accept Barrand’s and Burgerworks’ Petition for Review on the basis that the Court of Appeals’ decision in this case would discourage settlement agreements in which a party assumes ongoing obligations over an extended period of time.  The decision would further render the enforceability of existing agreements uncertain and could have adverse consequences on Texas franchisees and other businesses that rely onsimilar agreements.  TCJL expressed concerned that if the Court of Appeals decision is allowed to stand, Texas businesses could face years of unnecessary and costly litigation to enforce provisions in long-term contracts originally intended by the parties to accommodate future business conditions. The Court did not accept review of this matter.

 

 

 

Case	Garlock Sealing Technologies LLC and Georgia-Pacific Corporation (No. 06-0881)
TCJL Amicus Brief Date	June 28, 2007
Court	Texas Supreme Court 06-0881 activity
TCJL Brief Link	Garlock and Georgia Pacific
Summary	TCJL concurred with the legal analysis contained in the Brief of Amicus Curiae Product Liability Advisory Council, Inc. and did not repeat that analysis in its brief.  TCJL sought to provide the Court with useful guidance regarding the MDL court’s application of Havner principles to the admissibility of epidemiologic evidence in this case.  Specifically, TCJL demonstrated that the MDL court’s admission of certain epidemiologic, animal, and case studies did not comport with either Havner principles or sound science.

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Case	Wagner & Brown, LTD. et al, v. Jane Turner Sheppard, Individually and as Independent Executrix of the Estate of Sybil Turner, Deceased (No. 06-0845)
TCJL Amicus Brief Date	April 16, 2009
Court	Texas Supreme Court 06-0845 activity
TCJL Brief Link	Wagner Brown v Sheppard
Summary	TCJL argued that the Texas Supreme Court has repeatedly construed and enforced agreements, absent force or fraud, between parties competent to bargain with one another.  In Sheppard, the Court of Appeals interpreted a pooling clause in a mineral lease together with a pooling agreement designating a unit as distinct agreements that continued Sheppard’s participation in the unit even after the termination of the lease.  The Court was now asked, in effect, to rewrite either or both the lease and the pooling agreement because one of the parties is unhappy with the deal.  The Court rejected this request.

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