On Tuesday, the Third Court of Appeals issued an opinion dismissing a number of defamation claims brought by Williamson County’s District Attorney against the Smithville Times. The case involved a series of editorials about a Williamson County murder prosecution that ran in the Times in late 2001 and early 2002. The detailed opinion sets forth the burden a public official must meet to prevail on a defamation case. Texas Appellate Law Blog discusses the case here. Cox Texas Newspapers, L.P. et al. v. Charles Penick, ___ S.W.3d ___ (Tex. App. – Austin 2007) (Cause No. 03-05-00504-CV)
Continue reading...Barry Barnett’s Blawgletter discussed a recent Second Circuit arbitrability opinion yesterday (Ross v. American Express). The opinion holds that Section 16 of the FAA, which allows interlocutory appeal of an order refusing to compel arbitration, applies in cases where the motion to compel arbitration was based not on a written agreement to arbitrate, but upon estoppel principles by which courts sometime compel non-signatories to arbitrate (we have discussed this phenomena in Texas at length in the past). Section 16 of the FAA in turn refers to Section 3, which requires courts to send cases to arbitration when they involve issues “referable to arbitration under an agreement in writing for such an arbitration” (emphasis added). In the Ross case, the party that had defeated a Section 3 motion to compel arbitration argued that no interlocutory appeal of that decision was possible, since no written agreement to arbitrate existed. According to the Second Circuit, however, the estoppel theories for requiring non-signatories to arbitrate actually create agreements in writing to arbitrate, thus satisfying the FAA’s written agreement requirement. In other words, if estoppel creates an agreement to arbitrate where none obviously exists, then it also creates an agreement in writing to arbitrate where none obviously exists. To hold otherwise, argues the Court, would completely derail the established movement favoring arbitration-by-estoppel. Thanks again to Barry for the heads-up on an interesting case. A link to the opinion is available on his site, for those interested Technorati Tags: arbitration, ADR, law
Continue reading...The Texas Supreme Court handed down five opinions this morning. None is about arbitration, so we’ll give them short shrift here. City of San Antonio v. TPLP Office Park Properties is a discussion of the City of San Antonio’s potential police power to close access to certain roadways in order to address residents’ complaints about commercial traffic in their neighborhood. Cause No. 04-1130. In Norris v. Thomas, a five-justice majority holds that a boat cannot be a homestead (and thus protected from creditors) under the Texas Constitution, even if it’s a really big boat that is the primary residence of the debtor. “In order to qualify as a homestead, a residence must rest on the land and have a requisite degree of physical permanency, immobility, and attachment to fixed realty. A dock-based umbilical cord providing water, electricity, and phone service may help make a boat habitable, but the attachment to land is too slight to warrant homestead protection.” The opinion provides a nice history of Texas’ homestead protection. Cause No. 05-0476. Justive O’Neill wrote the dissent in Norris, arguing that the majority set forth a “cramped interpretation of homestead.” Since the Norris family actually lived on the boat, and since the majority acknowledged that it was in fact their home, the dissent argues that it ought to be given homestead protection. State Farm v. Martinez addresses the effect an insurance carrier’s interpleader of claim funds has on the Texas prompt payment of claims statute. Cause No. 05-0812. Wachovia v. Gilliam reverses a default judgment where substituted service was not made on the defendant at the defendant’s proper address. Cause No. 05-0903 In Jack in the Box v. Skiles, the Court reverses a Fifth Court of Appeals opinion and renders summary judgment in favor of Jack in the Box in a case where one of its truck drivers was injured on the job delivering some meat (Jack in the Box is a non-subscriber to workers’ compensation insurance). According to the Court, its earlier opinion in Kroger v. Elwood means that an employer has no duty to warn an employee about an obviously dangerous condition (we blogged on the Kroger case back in May). In this case, Kroger means that the truck driver could not recover against Jack in the Box for injuring his knees trying to jump over a broken lift gate on his truck, even though a Jack in the Box manager pressured him into doing so during a busy lunch hour when meat was scarce. According to the Court, since doing what the manager wanted was obviously dangerous, Jack in the Box did not have a duty to warn its employee of the danger. Cause No. 05-0911. Technorati Tags: litigation, Texas Supreme Court, law
Continue reading...Well, the Florida arbitration blog has another interesting post today. It concerns a Missouri case where a court refused to compel arbitration of a wrongful death case against a nursing home. According to that case, since the Missouri wrongful death statute creates a new cause of action in favor of the decedent’s statutory beneficiaries, and it is not a cause of action that the decedent could have had prior to his/her death, the statutory beneficiaries could not be forced to arbitrate their wrongful death claim against a nursing home, notwithstanding the fact that the decedent signed the nursing home admission form, which in turn contained an arbitration clause. (link to a .pdf of the opinion here) In Texas, of course, we also have a wrongful death statute which sets forth statutory beneficiaries who have the claim; Texas wrongful death claims, in other words, do not belong to the estate of the decedent. Therefore, the Missouri court’s logic ought to apply here in Texas as well. Simply put, since a living person cannot have a wrongful death claim, that person cannot agree to arbitrate one. The decedent’s survival claims would be a different issue, of course, since those belong to the estate. I suppose we could have a situation where the wrongful death claims are tried but the survival claims must be arbitrated (assuming it’s an FAA case and the TAA’s strict personal injury arbitration requirements are preempted). Or we could have a situation where nursing homes require that potential residents round up all their potential wrongful death beneficiaries (in Texas, parents, spouse and children of the deceased) and make them sign the arbitration clause before admission. It’s an interesting issue, and I do not know of a Texas case specifically addressing it, although I suppose if I had a quiet moment today I could actually look. Technorati Tags: arbitration, ADR, law
Continue reading...Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.
Disputing is published by Karl Bayer, a dispute resolution expert based in Austin, Texas. Articles published on Disputing aim to provide original insight and commentary around issues related to arbitration, mediation and the alternative dispute resolution industry.
To learn more about Karl and his team, or to schedule a mediation or arbitration with Karl’s live scheduling calendar, visit www.karlbayer.com.