Appeals reach the doorstep of the Texas Supreme Court many ways, but one of the more interesting is via certified question from the 5th U.S. Circuit Court of Appeals.
Certified questions usually involve important, unanswered questions in Texas law that the 5th Circuit ponders in a published opinion before punting it to the Supreme Court to resolve.
Friday, the Supreme Court accepted Gary Sawyer, et al. v. E I DuPont De Nemours & Co. on a certified question. The case contains two big labor law questions:
- Under Texas law, may at-will employees bring fraud claims against their employers for loss of their employment?
- If the answer is “no,” may employees, who are covered under a 60-day cancellation-upon-notice collective bargaining agreement that limits the employer’s ability to discharge its employees only for just cause, bring Texas fraud claims against their employer based on allegations that the employer fraudulently induced them to terminate their employment?
The certified questions got to the court in an unusual way: a per curiam opinion by the 5th Circuit issued on July 27.
The 5th Circuit usually uses P.C. opinions to resolve cases that have no precedential value. DuPont originally won the labor law case in a April 20 panel decision.
But after the plaintiffs filed a motion for en banc review, the court withdrew its published decision and certified the questions in the case to the Texas high court, explains Russell Manning, a partner in Corpus Christi’s Hornblower Manning Ward Harrison & Rodriguez who represent DuPont.
“It’s the first time it’s happened in one of my cases. I can tell you that, during oral arguments, the panel asked both sides what we thought about certifying the question and asked us to send short letter briefs asking whether it should be certified or not,’’ Manning says. “Both sides said no . . . for different reasons.”
Mike Cash, a shareholder in the Houston office of Liskow & Lewis, says the case took an unusual route to the Texas high court.
“I’ve never seen anything like it. I really haven’t,” he says. “But it is a big question in labor law.”
--- John Council