# Opinion

> Texas Supreme Court · October 22, 2010

URL: https://www.frixlaw.com/law-library/cases/2829216

## Case

- **Full name:** Barbara Robinson, Individually and as Representative of the Estate of John Robinson v. Crown Cork & Seal Company, Inc., Individually and as Successor to Mundet Cork Corporation
- **Court:** Texas Supreme Court
- **Decided:** October 22, 2010
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/2829216

## How later opinions describe it (automated extraction)

- recognizing, in a copyright case applying patent law, that a retroactive assignment destroys an owner’s “valuable and vested right to enforce her claim”
- recognizing that the “ constitutional impediments to retroactive civil legislation are now modest”
- holding that “death penalty” sanctions of dismissing plaintiff’s claim was warranted because of plaintiff’s failure to produce audiotapes that would have proved or disproved plaintiff’s legal malpractice claims

## Opinion text

IN THE SUPREME COURT OF TEXAS
════════════
No. 06-0714
════════════
Barbara Robinson, Individually
and as Representative of the
Estate of John Robinson,
Deceased, Petitioner,
v .
Crown Cork & Seal Company,
Inc., Individually and as Successor
to Mundet Cork Corporation,
Respondent
════════════════════════════════════════════════════
On Petition for Review from
the
Court of Appeals for the Fourteenth District of
Texas
════════════════════════════════════════════════════
Argued February 7,
2008
Justice Wainwright , joined
by Justice Johnson,
dissenting.
The
Legislature enacted Chapter 149 of the Civil Practice and Remedies Code to
protect businesses, which acquired other entities, from financial disaster based
solely upon the acquired entities’ past, discontinued manufacture of asbestos
products. The statute limits the liability of the acquiring business,
which had not engaged in the asbestos business, to the fair market value of the
acquired entity at the time of the acquisition. Through Chapter 149, the
Legislature balances limitations on asbestos-related recoveries against
protecting the assets and employees of businesses who did not cause the illness,
while leaving intact the entirety of potential liability and damages proven
against companies that were involved in the asbestos business and are, perhaps,
more culpable. The Court’s holding that the legislation is
unconstitutional prevents the Legislature from addressing an injustice arising
from a crisis that caused dozens of bankruptcies and the loss of thousands of
jobs in this state and throughout the country due to asbestos-related
litigation. See, e.g. , Jonathan Orszag, The Impact of Asbestos
Liabilities on Workers in Bankrupt Firms, Remarks at the Asbestos Litigation
Symposium at the South Texas College of Law in Houston, Tex. (Mar. 7, 2003),
in 44 S. Tex. L. Rev .
1077, 1078–80 (2003) (describing results of a study indicating that sixty-one
companies entered into bankruptcy and that 52,000 to 60,000 people lost their
jobs due to asbestos litigation).
The Court’s new balancing test reaches the wrong result. By holding that
an unliquidated claim with “substantial basis in fact” is entitled to
constitutional protection, it ignores an important principle. ___ S.W.3d ___. The constitutional retroactivity
doctrine does not protect an asserted entitlement to property one does not own,
and until a final judgment in a case, we do not know whether the claim will be
vindicated or refuted. The Court’s reasoning that the right to file a
claim is protected by the retroactivity doctrine because, at least in part, the
claim is well founded with a “substantial basis in fact” springing from a
“mature tort” with “ more predictable” recovery, is a
troubling proposition. ___ S.W.3d ___. It
is unclear what that means, but it suggests that the
constitutional retroactivity protection is dependent on the perceived strength
of a claim. The likelihood of success in litigation is dependent on a
myriad of factors that make such predictions difficult at best. We have
held that an unliquidated personal injury claim is not a protected property
interest, and the contingent recovery from one should not be either.
While Justice Medina, who writes
separately, and I disagree on the
result, we agree that the Court should not abandon vested rights jurisprudence
in favor of a new and uncertain approach. The analysis in the Court’s
opinion is contrary to both the clear rule among the federal courts of appeals
that have addressed the issue and the majority rule among our courts of
appeals. The Court could rely on traditional police power jurisprudence in
which, even if the Robinsons had a vested right in their unliquidated cause of
action, courts consider whether the Legislature’s action was justified by its
constitutionally recognized police power to act in the interest of the health
and welfare of Texas. Indeed, the Court’s new balancing test for
retroactivity analysis is similar to the police power balancing test I expound
under existing law, but is newly incorporated into the retroactivity
doctrine. For all these reasons, I respectfully dissent.
I. BACKGROUND
John Robinson served in the Navy for twenty years, and during that time he was
exposed to steam pipes and boiler doors coated with insulation containing
asbestos. Some of the insulation and other products were marked with a
“big M,” the trademark used by Mundet Cork Corporation. In August 2002,
Robinson was diagnosed with mesothelioma. He claims the disease occurred
as a result of his exposure to asbestos in, among others, insulation products
produced by Mundet.
Crown Cork itself has never been in the business of mining, manufacturing,
installing, selling, distributing, removing, or otherwise making asbestos or any
asbestos-containing product. However, on November 7, 1963, Crown Cork’s
predecessor entered into an agreement to purchase the majority of Mundet’s stock
after the majority shareholder died and offered the shares for sale. Crown
Cork paid approximately $7 million for the stock, a majority interest in the
company.
Mundet ceased manufacturing insulation products prior to Crown Cork’s
acquisition of Mundet, but continued to hold insulation products in stock until
early 1964, when a third-party entity purchased the assets of Mundet’s
insulation division, including its inventory, contracts, raw materials, and
accounts receivables. On January 4, 1966, Mundet statutorily merged with
Crown Cork’s predecessor, and in 1989 Crown Cork was reincorporated in
Pennsylvania. 1
After he had been diagnosed with mesothelioma, Mr. Robinson and his wife filed
suit in 2002 against Crown Cork and twenty other defendants for damages caused
by Mr. Robinson’s exposure to asbestos-containing products. The Robinsons
sought to hold each defendant jointly and severally liable. On November
25, 2002, the Robinsons filed a motion for partial summary judgment to establish
Crown Cork’s liability for actual damages as Mundet’s successor. Crown
Cork did not contest its successor liability for compensatory damages, and on
July 16, 2003 the trial court granted the Robinsons’ motion, holding that Crown
Cork “is liable and bears responsibility for the compensatory damages, if any,
awarded to Plaintiffs that are attributable to the conduct, products, or torts
of its predecessor Mundet Cork Corporation.”
House Bill 4, a bill drafted to comprehensively address perceived crises in
medical malpractice, asbestos, and other litigation issues in Texas, was
introduced in the Texas House of Representatives on February 17, 2003, without
any provision regarding successor asbestos liability. Tex. H.B. 4, 78th
Leg., R.S. (2003). Its purpose was to operate as a “comprehensive civil
justice reform bill intended to address and correct problems that currently
impair the fairness and efficiency of our court system.” House Comm. on
Civil Practices, Bill Analysis, Tex. H.B. 4, 78th Leg., R.S. at 1 (2003).
In late March 2003, more than 100 amendments were submitted to the Bill,
including Article 17, the asbestos successor-liability article. The
article was debated on the floor of the House on March 25, 2003 and passed the
House three days later. Both the House and Senate held hearings on the
bill as a whole. In an April 30, 2003 meeting of the Senate State Affairs
Committee, Senator Ratliff, the committee chair, introduced hearings on the
Senate Substitute to House Bill 4. He described Article 17 as follows:
Article 17, limitations in civil actions of liabilities relating to
certain mergers or consolidations. This, members, is the Crown Cork
and Seal asbestos issue. What we have put in this bill is what I
understand to be an agreed arrangement between all of the parties in this—in
this matter.
Hearings on
the Proposed Senate Substitute for H.B. 4 Before the S.
Comm. on State Affairs, 78th Leg., R.S. (Apr. 30, 2003) (Statement of Sen. Bill
Ratliff, Chairman, S. Comm. on State Affairs). The act passed the Senate
on May 16, 2003; the House accepted the Conference Committee compromise bill on
June 1, 2003; both adopted corrections on June 2, 2003; and the bill was signed
into law by the Governor on June 11, 2003. Act of June 2, 2003, 78th Leg.,
R.S., ch. 204, 2003 Tex. Gen. Laws 847 , 899 (codified at Tex. Civ. Prac. & Rem.
Code §§
149.001–.006). With a two-thirds vote in both
chambers, the bill took effect immediately and was made retroactive to all cases
“pending on that effective date and in which the trial, or any new trial or
retrial following motion, appeal, or otherwise, begins on or after that
effective date.” 2 Id. § 17.02(2), 2003 Tex.
Gen. Laws at 895; see also Tex.
Const. art. III, § 39 (“No law passed
by the Legislature, except the general appropriation act, shall take effect or
go into force until ninety days after the adjournment of the session at which it
was enacted, unless the Legislature shall, by a vote of two-thirds of all the
members elected to each House, otherwise direct; said vote to be taken by yeas
and nays, and entered upon the journals.”).
The act limits the “cumulative successor asbestos-related liabilities” “incurred
by a corporation as a result of or in connection with a merger or consolidation . . . with or into another
corporation or that are related in any way to asbestos claims based on the
exercise of control or the ownership of stock of the corporation before the
merger or consolidation that occurred” prior to May 13, 1968. Tex. Civ. Prac. & Rem.
Code §§ 149.001–.003. 3 The asbestos liabilities of
successor corporations “are limited to the fair market value of the total gross
assets of the transferor determined as of the time of the merger or
consolidation,” id. § 149.003(a), and adjusted for inflation at a simple
interest rate of the prime rate plus one percent, id. § 149.005(a).
An “asbestos claim” is “any claim, wherever or whenever made, for damages,
losses, indemnification, contribution, or other relief arising out of, based on,
or in any way related to asbestos, including” property damage caused by
asbestos, the health effects of asbestos exposure, or any claim made by or on
behalf of any person exposed to asbestos. Id. §
149.001(1). The Legislature clearly intended to limit recoveries
only against so-called “innocent” successor companies.
According to Crown Cork’s experts, by May 2003, Crown Cork had paid or agreed to
pay asbestos related claims, not covered by insurance, totaling more than seven
times the present value of Mundet according to the statutory formula. On
July 3, 2003, Crown Cork filed a Motion for Summary Judgment raising the
affirmative defense of Chapter 149, introducing evidence of the value of Mundet
and total asbestos-related payments made by Crown Cork to date. The
Robinsons asserted that the statute was a “special law” in violation of article
III, section 56 of the Texas Constitution, that it deprived the Robinsons of a
vested property right in violation of article I, section 16 of the Texas
Constitution, that the statute was an unconstitutional taking, violating article
I, section 17 of the Texas Constitution and the Fifth and Fourteenth Amendments
to the United States Constitution, that it constituted a deprivation of
substantive due process rights under the Texas and United States Constitutions,
that it deprived John Robinson of a contractual right, contrary to article I,
section 16 of the Texas Constitution, and deprived John Robinson of his common
law causes of action in violation of the Open Courts guarantee in article I,
section 13 of the Texas Constitution. The Robinsons raise only the
retroactivity and special law challenges before this Court. Implicitly
finding that Crown Cork had established that the statute applied to it as a
matter of law, and that Crown Cork had already paid liabilities in excess of
Mundet’s adjusted value, the trial court granted Crown Cork’s motion for summary
judgment on October 2, 2003. It issued an amended order nineteen days
later, dismissing claims against Crown Cork brought by the Robinsons. 4 The Robinsons nonsuited their
remaining claims against Crown Cork and then appealed the summary judgment. 5 The court of appeals
affirmed. Characterizing the jurisprudence on vested rights as
“inconsistent and difficult to use as a guide,” the court instead balanced the
Legislature’s police power against the private rights impacted by the statute,
and held that the statute was constitutional. 251 S.W.3d
520 , 532–35 (Tex. App.—Houston [14th Dist.] 2006, pet. granted).
One justice dissented, arguing that the court should have applied a vested
rights analysis and concluded that the statute violated article I, section
16. Id. at 551–52 (Frost, J.,
dissenting).
II. ANALYSIS
In this Court, the Robinsons raise only two issues, and both are grounded
exclusively in Texas law. They argue that Chapter 149 of the Texas Civil
Practice and Remedies Code is an unconstitutional “special law” and that it is
unconstitutionally retroactive when applied to the Robinsons’ claims to
effectively bar recovery. 6 As the party challenging the
constitutionality of the statute, the Robinsons must overcome the presumptions
that “the Legislature intended for the law to comply with the United States and
Texas Constitutions, to achieve a just and reasonable result, and to advance a
public rather than a private interest.” Tex.
Mun. League Intergovernmental Risk Pool v. Tex. Workers’ Comp.
Comm’n , 74 S.W.3d 377, 381 (Tex. 2002) (citing Tex. Gov’t Code § 311.021; Spence v. Fenchler , 180 S.W. 597,
605 (Tex. 1915)). The Robinsons also bear the burden
of showing that the law is contrary to a provision of the state
constitution. See, e.g. , Walker v.
Guiterrez , 111 S.W.3d 56, 66 (Tex. 2003). The Robinsons’
retroactivity claim is an as-applied challenge, which means that they must
demonstrate that the statute is unconstitutional as it operates in practice
against them. Tex Mun. League , 74
S.W.3d at 381 (citing Tex. Workers’ Comp. Comm’n v. Garcia , 893 S.W.2d
504 , 518 n.16 (Tex. 1995) ). Their special law
challenge is a facial challenge, which means that the Robinsons must demonstrate
there is no conceivable set of facts that could exist under which the statute
would be constitutional. Garcia , 893 S.W.2d at
520 .
In this case the Court determines that the law is unconstitutionally retroactive
and thus does not reach the special law challenge. However, for the
reasons that follow, I would hold that the law survives both challenges, but for
reasons different from those articulated by the court of appeals.
A. Retroactive Law
Article I, section 16 of the Texas Constitution, part of the Texas Bill of
Rights, declares that “[n]o bill of attainder, ex post facto law, retroactive
law, or any law impairing the obligation of contracts, shall be made.”
Tex. Const . art. I, §
16. A retroactive law “takes away or impairs vested rights acquired
under existing laws . . . .”
Paschal v. Perez , 7 Tex. 348, 365 (1851).
A retroactive law means a law applying to things that are
past. DeCordova v. City of Galveston , 4 Tex. 470 ,
475 (1849).
Of course, not every law that affects relationships among parties based upon
events occurring in the past is automatically unconstitutional, just as not
every law that may affect a person’s right to speak, that may affect a
contractual obligation, or that may allow a search of a person’s dwelling
without a warrant, is unconstitutional. See Subaru of Am. v. David McDavid Nissan, Inc. , 84
S.W.3d 212, 219 (Tex. 2002). This Court has articulated
three doctrines that further define the scope of the retroactivity
prohibition. First, a law is not unconstitutionally retroactive unless it
impairs a person’s “vested rights.” E.g. ,
id. at 219. Second, a law is not
unconstitutionally retroactive if it only modifies or reduces the person’s
remedy. E.g. , City of Tyler v. Likes , 962 S.W.2d 489, 502
(Tex. 1997) ; Holder v. Wood ,
714 S.W.2d 318, 319 (Tex. 1986). And finally, even if the law affects a
person’s vested rights, and not a remedy, a law may not violate the
retroactivity prohibition if the government’s interest in protecting society,
based upon its police power, outweighs the individual’s interest in his or her
particular right. E.g. , Barshop v. Medina
Cnty. Underground Water Conservation Dist ., 925 S.W.2d 618 , 633–34 (Tex.
1996). The first two tests are definitional—this Court
has determined that a retroactive law does not implicate article I, section 16
of the Constitution unless the law both affects a vested right and impairs an
actual right, not merely a remedy or a procedure. The third test may
operate as an exception to the rule. Although related, the review of each
doctrine is separate. E.g. , In re A.V. & J.V. , 113
S.W.3d 355, 361 (Tex. 2003) (describing “exceptions” to retroactivity); David
McDavid Nissan , 84 S.W.3d at 219 (analyzing the procedural/remedial test as
part of the vested rights exception because “procedural and remedial statutes
typically do not affect a vested right”). Although the Court has not had
occasion recently to address the specific meaning of article I, section 16’s
prohibition of retroactive laws, our precedents provide a useful roadmap.
1. Vested Rights
Vested rights derive from “[c]onsiderations of fair notice, reasonable reliance,
and settled expectations.” Owens-Corning v.
Carter , 997 S.W.2d 560 , 572–73 (Tex. 1999). “A retroactive
statute only violates our Constitution if, when applied, it takes away or
impairs vested rights acquired under existing law.” David McDavid
Nissan , 84 S.W.3d at 219 (citing Ex parte Abell , 613 S.W.2d 255, 260
(Tex. 1981)); McCain v. Yost , 284 S.W.2d 898, 900 (Tex. 1955).
We explained “vested rights” in Ex parte Abell :
[A]
right, in a legal sense, exists, when, in consequence of the existence of given
facts, the law declares that one person is entitled to enforce against another a
given claim, or to resist the enforcement of a claim urged by another.
Facts may exist out of which, in the course of time or under given
circumstances, a right would become fixed or vested by operation of existing
law, but until the state of facts which the law declares shall give a right
comes into existence there cannot be in law a right; and for this reason it has
been constantly held that, until the right becomes fixed or vested, it is
lawful for the lawmaking power to declare that the given state of facts shall
not fix it , and such laws have been constantly held not to be retroactive
in the sense in which that term is used.
613 S.W.2d at
261 (quoting Mellinger v. City of Houston , 3 S.W. 249, 253 (Tex. 1887))
(emphasis added). “A right cannot be considered a vested right unless it
is something more than “a mere expectation as may be based upon an
anticipated continuance of the present general laws; it must have become a
title, legal or equitable . . . .”
Id. (citation omitted) (emphasis added). This Court has clearly
articulated that “no one has a vested right in the continuance of present laws
in relation to a particular subject . . . . There cannot be a
vested right, or a property right, in a mere rule of law.” Middleton v. Tex. Power & Light Co. , 185 S.W. 556, 560
(Tex. 1916).
The court of appeals called the vested rights analysis “inconsistent and
difficult to use as a guide.” 251 S.W.3d at
526 . Other courts of appeals have called the vested rights analysis
“amorphous.” Sims v. Adoption Alliance , 922
S.W.2d 213, 216 (Tex. App.—San Antonio 1996, writ denied); Ex parte
Kubas , 83 S.W.3d 366, 369 (Tex. App.—Corpus Christi 2002, pet.
ref’d). Courts from other states and commentators have also
criticized vested rights analyses, preferring an analysis requiring a balancing
of the nature and strength of the public interest served by the statute, the
extent to which the statute modifies or abrogates the pre-enactment right, and
the nature of the right the statute alters. See, e.g. , Owen
Lumber Co. v. Chartrand , 73 P.3d 753 , 755–56 (Kan. 2003); Peterson v.
City of Minneapolis , 173 N.W.2d 353 , 356–57 (Minn. 1969); see also
Charles B. Hochman, The Supreme Court and the Constitutionality of
Retroactive Legislation , 73 Harv. L.
Rev . 692, 697 (1960). And the Court’s opinion, in rejecting a
“bright-line test for unconstitutional activity,” and in recognizing that the
Texas Constitution “does not insulate every vested right from impairment,” seems
to abandon the vested rights analysis altogether, or, at a minimum, detaches the
concept of vested rights from its traditional significance in a retroactivity
analysis. ___ S.W.3d _ __. However, the
doctrine’s difficulty is not a justification to abandon it wholesale. For,
at the core of the vested rights doctrine lies an
extremely important principle—the constitutional retroactivity doctrine does not
protect an asserted entitlement to property one does not own, and until a final
judgment in a case, we do not know whether the lawsuit will prove or refute a
claim to recover.
Applying our century-old jurisprudence, I would hold that an accrued, but
unliquidated cause of action is not a vested right because: (1) the framers of
the Texas Constitution would not have considered an unliquidated cause of action
to be a vested property right entitled to protection under the Retroactivity
Clause; (2) a lawsuit is not a right to recover anything but a contingent and
unliquidated pursuit of a claimed injury that may or may not be successful; and
(3) until and unless a final judgment is rendered in favor of the claimant,
there is no right to recover damages on the claim against another. See Mellinger , 3 S.W. at 252 ; Graham v. Franco , 488
S.W.2d 390, 393 (Tex. 1972); Ex parte Abell , 613 S.W.2d at
260 .
In interpreting the Texas Constitution, our duty is “to ascertain and give
effect to the plain intent and language of the framers of [the constitution] and
of the people who adopted it.” Wilson v. Galveston
Cnty. Cent. Appraisal Dist. , 713 S.W.2d 98,
101 (Tex. 1986) (quoting Gragg v. Cayuga Indep. Sch.
Dist. , 539 S.W.2d 861, 866 (Tex.
1976)). We look
to such
things as the language of the constitutional provision itself, its purpose, the
historical context in which it was written, the intentions of the framers [and
ratifiers], the application in prior judicial decisions, the relation of the
provision to [other parts of the constitution and] the law as a whole, the
understanding of other branches of government, the law in other jurisdictions,
state and federal, constitutional and legal theory, and fundamental values
including justice and social policy.
Davenport
v. Garcia , 834 S.W.2d 4, 30 (Tex. 1992) (Hecht, J., concurring) (citations
omitted).
Examining the state of “vested rights” and what constitutes a vested property
right at the time of the framing of the 1876 Constitution provides important
insight into what the Framers considered protected by the Retroactivity
Clause. Prior to and at the time of the adoption of the Texas Constitution
in 1876, it was well established that the doctrine of vested rights created an
exception to the prohibition on retroactive legislation. See,
e.g. , DeCordova , 4 Tex. at 475; Paschal , 7 Tex. at 365 (“Mr.
Justice Story defines a retrospective law to be, one which takes away or impairs
vested rights acquired under existing law, or creates a new obligation, or
imposes a new duty, or attaches a new disability in relation to transactions
already past.” (citing Soc’y for the Propagation of the Gospel v.
Wheeler , 2 Gall. 105, 138 , 22 F. Cas. 756, 767 (No. 13,156) (C.C.D.N.H.
1814))). 7 A vested right is now, and was
then, considered some form of “property right.” Middleton , 185 S.W.
at 560 . However, at the time of the framing of the cCnstitution of 1876,
an accrued, but unliquidated, cause of action for personal injury, was not “property” in any sense. See G. H.
& S. A. R.R. v. Freeman , 57 Tex. 156 (1882); Stewart v. H. & T.
C. Ry. Co. , 62 Tex. 246 (1884). Common law tort causes of
action for personal injury could not be assigned and did not survive the death
of the victim. As described by Chief Justice Greenhill:
By the
clear weight of common law authority, a cause of action for personal injury
is not property in any sense, nor for any purpose till it has been reduced to
judgment ; and the judgment, as property, takes its character as separate or
common from the right violated in committing the wrong—the personal injury.
Graham ,
488 S.W.2d at 393 (emphasis added) (quotation omitted); see also State Farm
Fire & Cas . Co. v. Gandy , 925 S.W.2d 696 ,
706–07 (Tex. 1996) (discussing the role at common law regarding the
assignability and survivability of personal injury tort causes of action).
Legislation was required to amend both of those common law rules.
E.g. , Act of May 4, 1895, 24th Leg., R.S., ch. 89, § 1, 1895 Tex. Gen. Laws
143 (current version at Tex. Civ. Prac.
& Rem.Code § 71.021) (allowing survival of personal injury
claims); Tex Prop. Code §
12.014(a) (allowing “an interest in a cause of action on which suit has been
filed” to be “sold, regardless of whether the
. . . cause of action is assignable in law or equity”);
Gandy , 925 S.W.2d at 707 (noting that personal injury claims only became
assignable after they could survive the owner’s death).
As in other circumstances, property is treated differently. In 1876,
choses in action for injury to property were considered property, and they were
alienable, assignable, and devisable.
[W]hen the
injury affects the estate rather than the person, when the action is brought for
damage to the estate and not for injury to the person . . . the right of action
could be bought and sold. Such right of action, upon the death, bankruptcy
or insolvency of the party injured, passes to the executor or assignee as a part
of his assets . . . .
Graham ,
488 S.W.2d at 393 (quoting Freeman , 57 Tex. at 158 ); see also
Gandy , 925 S.W.2d at 706 (noting that “[t]he pressures against the rule
of inalienability were commercial and thus affected only debts and other
contract rights that were not personal to the owner and could survive to his
estate upon his death”). The common law in Texas did not consider tort
causes of action for personal injury to be “property,” and “vested rights”—
a concept recognized in common law at the time of the framing
of the 1876 Constitution—are a species of property. Therefore,
under the Texas Constitution, ratified in 1876, an accrued, but unliquidated
personal injury cause of action was not considered to be a “vested right” for
purposes of the Retroactivity Clause. Gandy , 925
S.W.2d at 706 . This reasoning applies with special force to the
Robinsons’ as-applied challenge, because at common law Mr. Robinson’s claims
would not have survived his death. His claims exist today only by virtue
of statutes. The framers of the Texas Constitution would have not believed
that there would be a settled expectation in allowing Mrs. Robinson to continue
to prosecute these uncertain claims, either as Mr. Robinsons’s personal
representative or derivatively through a statutorily created wrongful death
action.
The Court recognizes this historical disconnect, yet dismisses it in a single
sentence, stating simply that “[t]he rights protected by the constitutional
prohibition against retroactive laws are no more limited to those recognized at
the time the prohibition was adopted than are the rights protected by due course
of law.” ___ S.W.3d ___. A court should be
cautious in providing new protections for rights that were not part of the
sphere of rights contemplated by the democratic institutions that enacted the
constitution. See McDonald v. City of Chicago , ___ U.S. ___, 130 S.
Ct. 3020 , 3051–53 (2010) (Scalia, J., concurring) (criticizing the dissent’s
conceptual framework to “‘do justice to [the Due Process Clause’s] urgent call
and its open texture’ by exercising the ‘interpretive discretion the latter
embodies” and to hold that the Clause encompasses “new freedoms the Framers were
too narrow-minded to imagine” (quoting Id. , ___ U.S. ___, 130 S.
Ct. at 3099–100 (Stevens, J., dissenting))).
The right to file a cause of action is not an entitlement to enforce the alleged
claim, but a “mere expectation” subject to numerous contingencies. Ex parte Abell , 613 S.W.2d at 261–62; Mellinger , 3
S.W. at 252–53. A plaintiff’s ultimate recovery is
contingent upon more than just success at trial. For example, it is
contingent upon finding—and serving with process— the right defendant, who may
be an inaccessible foreign defendant, or, as in this case, may be a corporation
long since out of business. See, e.g. , Tex. R. Civ . P. 103–109a (discussing
methods of service); GFTA Trendanalysen B.G.A. Herrdum GMBH & Co., K.G.
v. Varme , 991 S.W.2d 785, 785 (Tex. 1999) (per curiam) (holding
special appearance by foreign corporation did not waive challenge to
jurisdiction). A plaintiff’s recovery may be contingent upon following
particular pretrial procedures, such as the filing of an expert report or
providing discovery. See Tex. Civ. Prac. & Rem.
Code § 7 4.351 (requiring the
service of an expert report by the plaintiff in a health care liability claim
and demanding dismissal of the claim if the report is not timely served);
Cire v. Cummings , 134 S.W.3d 835 , 841–42 (Tex. 2004) (holding that “death
penalty” sanctions of dismissing plaintiff’s claim was warranted because of
plaintiff’s failure to produce audiotapes that would have proved or disproved
plaintiff’s legal malpractice claims). Any informed client knows that
winning a lawsuit, even a seemingly “open and shut” case, is never certain,
particularly when multiple defendants and multiple products may have caused the
same injury, and no reasonable person has a “settled expectation” of achieving
monetary recovery once she discovers a harm inflicted upon her.
Rather, I would hold, consistent with the jurisprudence of the United States
Supreme Court 8 a majority of the federal courts of
appeals, 9 a number of other states, 1 0 and a majority of the courts of appeals
to address the issue in this state, 1 1 that a cause of action becomes a “vested
right” for the constitutional retroactivity analysis when it has reached a final
determination—that is, where it has been reduced to an enforceable judgment in
the plaintiff’s favor. 1 2 As aptly put in an opinion of the
Court of Appeals for the First District:
A “vested
right” implies an immediate right or entitlement—it is not an expectation or a
contingency. . . . Engrained in the concept of vested
rights is the idea of certainty. . . . The filing of a
lawsuit in order to obtain relief or pursue a remedy is generally held not to
create or destroy vested rights; the triggering event for the vesting of a right
is the resolution of the controversy and the final determination—not the filing
of the suit.
Houston Indep. Sch. Dist. v.
Houston Chronicle Publ’g Co. , 798 S.W.2d 580,
589 (Tex. App.—Houston [1st Dist.] 1990, writ denied).
This rule is most consistent with the understanding of vested property rights at
the time of the ratification of the 1876 Constitution. It is consistent
with our subsequent interpretation of the words of the Retroactivity
Clause. 1 3 It is
consistent with our case law and the great weight of court of appeals
opinions. And it is more predictable and avoids confusion and ambiguity
when the Legislature attempts to constitutionally craft a law affecting past
conduct.
This Court’s first significant discussion of retroactivity occurs in
Mellinger v. City of Houston , 3 S.W. 249 (Tex. 1887). The City of
Houston sued to recover taxes on property that would otherwise have been barred
by a subsequently repealed statute of limitations. The Court ruled that
the statute was not to be applied retroactively and thus did not
specifically decide whether Mellinger had a vested right that would be
violated by retroactive application of the law. Id. at
251–52. It then stated that “an action barred by the
statute of limitations was forever barred” and explained that a law may be
unconstitutionally retroactive “if a statute of limitations applied to existing
causes barred all remedy, or did not afford a reasonable period for their
prosecution; or if an attempt were made by law, either by implication or
expressly, to revive causes of action already barred . . . .” Id. at 253–55. Mellinger did not hold
that an unaccrued cause of action was a vested right subject to protection, but
it did indicate that a shortening of the statute of limitations would require a
grace period to allow those who had not filed their cause of action to do so
before the new limitations period would come into effect. Id.
Subsequent cases from this Court recognize that the Legislature cannot resurrect
causes of action that have already been extinguished by retroactively
lengthening the statute of limitations. E.g. , Baker Hughes, Inc.
v. Keco R. & D., Inc. , 12 S.W.3d 1 , 4 & n.12 (Tex. 1999); Wilson
v. Work , 62 S.W.2d 490 , 490–91 (Tex. 1933) (per curiam). This rule
makes sense because “[t]o permit barred claims to be revived years later would
undermine society’s interest in repose, which is one of the principal
justifications for statutes of limitations.” Baker Hughes , 12 S.W.3d at 4 . In other words, when the statute
extinguished a cause of action, a defendant received a vested right of repose
barring the extinguished claim.
In City of Tyler v. Likes , 962 S.W.2d 489 (Tex. 1997), a case upon which
the Robinsons principally rely, this Court held that a modification of the Tort
Claims Act to provide the city with sovereign immunity from the plaintiff’s
common law tort claims was not constitutionally retroactive. It recognized
that the statute “affect[ed] a remedy” for the plaintiff, which usually does not
implicate the Retroactivity Clause unless the “remedy is entirely taken
away.” Id. at 502 (citation
omitted). We noted that “[t]he Legislature can affect a remedy by
providing a shorter limitations period for an accrued cause of action without
violating the retroactivity provision of the Constitution if it affords a
reasonable time or fair opportunity to preserve a claimant’s rights under the
former law, or if the amendment does not bar all remedy.” Id.
(citing Tex. Water Rights Comm’n v. Wright , 464 S.W.2d 642, 649 (Tex.
1971); Mellinger , 3 S.W. at 254–55). Because the statute became
effective seventeen months after her action accrued, the Court held that the
plaintiff had a reasonable time to preserve her rights, and thus the statute was
not unconstitutional as applied. Id. Likes emphasizes
(as discussed further below) that where the legislation affects the plaintiff’s
remedy without entirely taking it away, the legislation is not
unconstitutionally retroactive. Id.
Finally, this Court has specifically held that the Mellinger
retroactivity exception, requiring that a party receive reasonable time to
preserve its rights, which was relied on in
Likes , has an exception itself. In Owens Corning v. Carter ,
997 S.W.2d 560 (Tex. 1999), the Court upheld a retroactive application of an
amended borrowing statute against a constitutional challenge. At the time
the lawsuit underlying the case was filed, Texas’s borrowing statute provided
that a non-Texan who was injured in a foreign state could bring an action in
Texas, even if the limitations period in the plaintiff’s home state had run, so
long as the action was begun within the time provided by Texas law.
Id. at 565 ; cf. Igal v. Brightstar Info. Tech. Grp., Inc. ,
250 S.W.3d 78 , 90–91 (Tex. 2008) (holding that res judicata bars relitigation of
administratively determined facts and distinguishing a rule where “a claimant
whose action is precluded by limitations in one state court may still be able to
pursue the same action in a different state with a longer limitations period”).
In early 1997, while the plaintiffs’ lawsuits were pending, the
Legislature amended the statute to require, among other things, that the action
is begun in Texas within the time provided both by Texas law and the law of the
foreign state in which the wrongful act, neglect, or default took place.
Carter , 997 S.W.2d . at 572 (citing Tex. Civ. Prac. & Rem. Code §
71.031(a )( 3)). The plaintiffs challenged the law
as unconstitutionally retroactive, and we rejected that challenge. First,
we recognized that the plaintiffs did not have any settled expectations in the
continuance of the current law—the limitations period. Second, we noted
that “requiring a grace period for otherwise time-barred claims would defeat the
very purpose of the borrowing statute: a plaintiff should not be able to gain
greater rights than he would have in the state where the cause of action arose
and where he lives simply by bringing suit in Texas.” Id. at 573. In other words, even if the statute
of limitations “grace period” rule articulated in Mellinger were to
apply, because Alabama plaintiffs applying Alabama law had no expectation in the
continuation of the borrowing statute, “such concerns play a minimal role and do
not justify the application of a grace period.” Id. (citing In
re TMI , 89 F.3d 1106, 1116 (3d Cir. 1996)).
This Court has recognized that contingencies, future expectations, and mere
rules of law do not constitute vested rights. We have upheld retroactivity
challenges only when it interferes with a final judgment, involved the vested
parent-child relationship, or when the statute attempts to revive a cause of
action previously barred by the statute of limitations. E.g. , Milam County , 54 Tex. at 168; In re A.V. ,
113 S.W.3d 355, 361 (Tex. 2003); Baker Hughes , 12 S.W.3d at
5 . Otherwise, we have held on many occasions that laws, even those
that explicitly apply retroactively, do not violate the Retroactivity Clause in
article 1, section 16. See, e.g. , David McDavid Nissan , 84
S.W.3d at 219–20; Carter , 997 S.W.2d at 573 ; Likes , 962 S.W.2d at
502 ; Barshop , 925 S.W.2d at 634 ; Ex parte Abell , 613 S.W.2d at
262 ; Exxon Corp. v. Brecheen , 526 S.W.2d 519, 525 (Tex. 1975);
McCain , 284 S.W.2d at 900 ; City of Dallas v. Trammell , 101 S.W.2d
1009 , 1012–13 (Tex. 1937).
The Robinsons’ expectation that they could recover damages against Crown Cork as
one of the numerous defendants in their lawsuit was low at the time Mr.
Robinson’s common law causes action accrued. Numerous contingencies
surrounded their litigation, not the least of which were the identity of the
potential tortfeasors and proving causation against Mundet from among nine other
defendants. 1 4 If they knew that Mundet was one
of the parties responsible for producing asbestos that Mr. Robinson was exposed
to, it is unlikely that they knew that Mundet had been bought by Crown Cork
decades prior. This is not a situation where the obligations of two
parties are identified by contract, where the government seeks to interfere with
the parent-child relationship, or a party seeks to resurrect a claim long
extinguished by a statute of limitations. Our case law is consistently
hesitant to void statutes outside those categories as retroactive, and this is
not an area into which our jurisprudence should expand. 1 5
Finally, a “brighter-line” view provides more certainty and predictability and
avoids confusion and ambiguity. Causes of action accrue when claimants are
on notice of their injury and have the opportunity to seek a judicial remedy,
when the injury occurs, or at the death of a promisor. Quigley v. Bennett , 227 S.W.3d 51, 58 (Tex. 2007);
Provident Life & Accident Ins. Co. v. Knott , 128 S.W.3d 211, 221
(Tex. 2003). Certainly, these accruals almost always occur prior to
the filing of a lawsuit (otherwise the claim would not be ripe).
Therefore, accepting the Court’s position that a right to file a lawsuit is a
vested right would, in effect, preclude the Legislature from taking any action
to modify or restrict a cause of action for some lawsuits that had not even been
filed yet. It would further lead to unnecessary uncertainty and
confusion.
The Robinsons did not have a vested right in their accrued causes of action when
Mr. Robinson was diagnosed with mesothelioma. At most, they had contingent
belief that they might be able to recover against Crown Cork or the other
defendants. At the time Mr. Robinson’s cause of action accrued, the
Robinsons had not taken any action in reliance on the law at the time, and they
had no entitlement to the law as it existed. Even after they filed their
action and received a partial summary judgment that Crown Cork was liable as a
successor corporation, they had an unliquidated interest in a personal injury
tort claim that was not recognized as a property right—vested or otherwise—at
common law. The expectation further deteriorated when Mr. Robinson passed
away, and Mrs. Robinson asserted new statutory survival and wrongful death
claims. I would hold that, when the Legislature limited recovery for
asbestos claims only against innocent successor corporations that had caused no
injury to claimants, the Legislature did not deprive the Robinsons of a vested
right of action against Crown Cork, and thus Chapter 149 is not
unconstitutionally retroactive as applied to the Robinsons. The Robinsons
are not foreclosed, however, from going forward with their claims against other
entities, consistent with the Act’s limitations on recovery.
2. Police Power Balancing
The Robinsons argue that there is no room for a balancing of interests in the
retroactivity analysis. They contend that if a right is vested, it cannot
be affected by retroactive legislation. 1 6 Regardless of whether the “vested
rights” threshold exists, a balancing of interests and expectations is an
integral part of retroactivity analysis in Texas jurisprudence, the
jurisprudence of other states, and commentators and scholars in this area.
Although the Court also balances interests, much in the same way I believe our
jurisprudence demands that we balance interests pursuant to the state’s police
power, the Court’s analysis overlooks a few critical
points.
Courts carefully recognized that a retroactive law affecting vested rights may
nonetheless be constitutional if the overriding public purpose of the act and
the Legislature’s legitimate exercise of its police power outweigh the interests
or expectations of the affected party. E.g. , Barshop , 925 S.W.2d at 633–34 . As Justice Oliver Wendell Holmes,
Jr. recognized in the context of a takings suit based on a statute retroactively
preventing a mining company exercising its contractual rights to mine coal under
a house:
Government
hardly could go on if to some extent values incident to property could not be
diminished without paying for every such change in the general law. As
long recognized, some values are enjoyed under an implied limitation and must
yield to the police power. But obviously the implied limitation must have
its limits, or the contract and due process clauses are gone.
Pa. Coal
Co. v. Mahon , 260 U.S. 393, 413 (1920); see also In re Marriage of
Bouquet , 546 P.2d 1371, 1376 (Cal. 1976) (noting that vested rights may be
impaired when “reasonably necessary to the protection of the health, safety,
morals, and general well being of the people”); Phillips v. Curiale , 608
A.2d 895, 902 (N.J. 1992); Hochman, 73 Harv. L. Rev . at 697 (advocating the
abrogation of the “vested rights” concept and instead analyzing U.S. Supreme
Court jurisprudence on retroactivity balancing the nature of the public interest
served, the extent to which the statute modifies the asserted pre-enactment
right, and the nature of the right which the statute alters).
In considering the balancing test to be applied this case, the court of appeals
balanced the proper exercise of the police power (weighing presumably not only
the validity of the exercise, but the importance as well) against the
“detrimental impact on plaintiffs such as the Robinsons,” noting that the
statute was narrowly tailored to protect the most innocent corporations but
still “leaving the pool of potential [asbestos] defendants as large as possible . . . .” 251 S.W.3d
at 532–33. The Court, on the other hand, balances: (1) the
nature and strength of the public interest served by the statute as evidenced by
the Legislature’s factual findings; (2) the nature of the prior right impaired
by the statute; and (3) the extent of the impairment. ___ S.W.3d ___. Using this test, the Court determines
that Chapter 149 is unconstitutionally retroactive as applied to the
Robinsons.
The Court asserts that what “constitutes an impairment of vested rights is too
much in the eye of the beholder to serve as a test for unconstitutional
retroactivity. . . [ and there is] a deep division over
whether a retroactive restriction on a cause of action impairs vested rights.
” __ S.W.3d ___. So t he Court vanquishes the vested rights
jurisprudence because it is too hard to decide and it believes some cases
applying it in the past were inconsistent. What areas of jurisprudence
that span two centuries are not subject to the same criticisms? No one who
has raised children doubts the statement that bathing a baby is challenging and
risky and can be a tough chore, but it must be done. The Court throws out
the baby it once embraced along with the bath water. It will come as no
surprise that the new balancing test the Court establishes for evaluating
retroactive legislation will be fraught with at least as many similar
challenges, but have no precedents for guidance. The balancing test in
Texas retroactivity jurisprudence is, candidly, a new baby in new bath
water. Certainly, there are limits imposed by the Constitution on
legislative power (as well as executive and judicial authority), but as Justice
Scalia insightfully explained about a balancing test under the Commerce Clause
of the U.S. Constitution:
The
problem is that courts are less well suited than Congress to perform this kind
of balancing in every case. The burdens and the benefits are always
incommensurate, and cannot be placed on the opposite balances of a scale without
assigning a policy-based weight to each of them. It is a matter not of
weighing apples against apples, but of deciding whether three apples are better
than six tangerines. Here, on one end of the scale (the burden side) there
rests a certain degree of suppression of interstate competition in borrowing;
and on the other (the benefits side) a certain degree of facilitation of
municipal borrowing. Of course you cannot decide which interest
“outweighs” the other without deciding which interest is more important to you.
And that will always be the case. I would abandon the . . . balancing enterprise [used in
dormant commerce clause cases] altogether. . . .
Dep’t of
Revenue of Ky. v. Davis , 553 U.S. 328, 359 (2008) (Scalia, J., concurring in
part) (emphasis added).
Assuming that the Robinsons’ accrued but unliquidated cause of action for
personal injury is a vested right under the Retroactivity Clause, I consider
whether the Legislature’s exercise of its general police power outweighs the
private interests at issue.
a. The Balancing Test to be Applied
We have not had the opportunity to fully discuss the contours of the police
power exception vis-a-vis a retroactivity challenge. In Barshop v.
Medina Underground Water Conservation District , we upheld the Edwards
Aquifer Act against a retroactivity challenge where landowners above the Edwards
Aquifer argued that the Act affected their vested right to withdraw unlimited
amounts of water from the Aquifer. 925 S.W.2d 618, 634
(Tex. 1996). Without deciding whether rights to groundwater were
vested rights, we stated that because the authority was “required for the
effective control of the [aquifer] to protect . . . life, . . .
water supplies, the operation of existing industries, and the economic
development of the state” and the aquifer itself was “vital to the
general economy and welfare of this state,” that the Retroactivity Clause in the
Texas Constitution does not “absolutely bar the Legislature from enacting such
statutes.” Id. (quoting Act of May 30, 1993, 73d Leg., R.S., ch.
626 §§ 1.01, 1.06(a), 1993 Tex. Gen. Laws 2355 , amended by Act of May 29,
1995, 74th Leg., R.S., ch. 261, 1995 Tex. Sess. Law Serv. 2505 ). In
In re A.V., we upheld retroactive application of a statute allowing the
termination of parental rights for those who are incarcerated for an extended
period of time because the state has a duty to protect the safety and welfare of
its children, and “[t]his ‘valid exercise of the police power by the Legislature
to safeguard the public safety and welfare’ is a recognized exception to the
unconstitutionality of retroactive laws.” 113 S.W.3d 355 , 361 (Tex. 2003)
(quoting Barshop , 925 S.W.2d at 633–34). In Lebohm v. City of
Galveston , we struck down a statute providing the City of Galveston a
complete defense for injury caused by defective roads, streets, sidewalks, or
other public places within the city limits, noting that “[n]o broad public
policy or general welfare considerations are advanced to justify the charter
provision as a reasonable exercise of police power [and w]e can think of none
that could be advanced inasmuch as the operational effect of the provision
extends only to the city limits . . . .” 275 S.W.2d 951, 955 (Tex. 1955).
Other states, however, have created a fuller rubric for examining the balance
between the police power and the prohibition against retroactive laws.
Each formulation seems to balance the nature of the public interest articulated
by the Legislature, the extent to which the statute modifies or abrogates the
vested right, the nature of the right the statute alters, and the fairness of
the application of the new statute. 1 7 The Robinsons’
retroactivity challenge is an as-applied challenge, and thus the Robinsons must
demonstrate that the statute is unconstitutional as it operates in practice
against them. See Tex. Mun. League , 74 S.W.3d at
381 . Therefore, it is appropriate to balance the expectations the
Robinsons lost with the enactment of Chapter 149 against the degree of harm
sought to be protected by the legislative enactment.
When considering the application of the police power, this case is a close
one. It does not involve the potential shortage of water for millions of
people, Barshop , 925 S.W.2d at 634 , and it does not involve the state’s
duty as parens patriae to children, In re A.V. , 113 S.W.3d at
361 . But there are five reasons that Chapter 149 was a legitimate exercise
of the police power, as applied to the Robinsons. The first three
demonstrate that the Robinsons’ expectations in the continued state of the law,
as-applied, are low. The second two demonstrate that the Legislature’s
exercise of the police power was rational, justifiable, and reasonably
limited.
First, at common law, Mr. Robinson’s claims were not “property,” were not
assignable, and were extinguished when he passed away. It is only by
statute that wrongful death claims continue to exist. The Legislature has
broad authority to modify rights it creates by statute. “When a
right or remedy is dependent on a statute, the unqualified repeal of that statue
operates to deprive the party of all such rights that have not become vested or
reduced to final judgment,” and “all suits filed in reliance on the statute must
cease . . . .” Quick v. City of Austin , 7 S.W.3d 109, 128 (Tex.
1998). This Court has further held that “[i]t is generally conceded
that a right of action given by a statute may be taken away at any time, even
after it has accrued and proceedings have been commenced to enforce it.”
Nat’l Carloading Corp. v. Phoenix-El Paso Exp. , 176
S.W.2d 564, 568 (Tex. 1944). Even assuming the Robinsons’ acts of
filing a lawsuit and receiving partial summary judgment resulted in some vested
expectation, the Robinsons’ claims, based in common law
negligence and products liability, may continue only because of the statutory
rights of survival, wrongful death, and successor liability through corporate
merger. Accordingly, the Legislature retained discretion to modify the
nature of their rights through Chapter 149’s restriction on the amount of total
damages recoverable against Crown Cork.
Second, Chapter 149 does not interfere with a claim sounding in contract or a
claim for an injury to real or personal property, which was protected much more
stringently at common law. E.g. , Landgraf , 511 U.S. at 271
(noting that the “largest category of cases in which [the Supreme Court of the
United States has] applied the presumption against statutory retroactivity has
involved new provisions affecting contractual or property rights, matters in
which predictability and stability are of prime importance”). The
Robinsons did not have an established relationship with Crown Cork (or even
Mundet) with predetermined expectations that may have vested upon the occurrence
of a contractual condition. Until this litigation, it is unlikely that the
Robinsons even knew that Crown Cork was a successor to Mundet, or that Mundet
manufactured asbestos products used in the ships on which Mr. Robinson was
stationed. This weakens the expectancy the Robinsons may have had in their
cause of action.
Third, Chapter 149, as applied, does not deprive the Robinsons of their cause of
action against Crown Cork, and it does not deprive the Robinsons of real and
substantial remedies for their alleged wrongs. The Robinsons sued twenty
other defendants in this case and recovered approximately $850,000 from a number
of the defendants for their injuries. They alleged that “[e]ach exposure
to [asbestos-containing products] cause and/or contributed to Plaintiffs’ injuries . . .” and “[t]he actions of each and
every Defendant are a producing and proximate cause of Plaintiffs’ injuries and
damages.” Thus, the Robinsons lost only the right to recover against
Mundet/Crown Cork, which had reached its maximum payout under Chapter 149.
But the statute did not impair their right to seek substantial recoveries
against other defendants, which were involved in the business of asbestos
insulation for the same injuries to Mr. Robinson. There is no vested right
in a remedy, and the Legislature may retroactively modify remedial laws, affect
a court’s jurisdiction, or provide alternative procedures or remedies.
See Tex. Mun. Power Agency v. Pub. Utils. Comm’n , 253 S.W.3d 184, 198 (Tex. 2007);
David McDavid Nissan , 84 S.W.3d at 219 ; Ex parte Abell , 613 S.W.2d
at 260 ; Mellinger , 3 S.W. at 254 . 1 8 This case is a multi-defendant
lawsuit where it is difficult to determine which asbestos products were the
cause of Mr. Robinson’s injuries.
Chapter 149 does not deprive the Robinsons of any cause of action or prohibit
their right to sue any party. It simply cuts off recovery against innocent
defendants at the point that the defendants have paid out for asbestos-related
liabilities the fair market value of the assets of the company acquired.
Importantly, Chapter 149 does not make any defendants immune from suit.
Chapter 149 limits the remedy under prescribed circumstances. It is not
disputed that if, for instance, Mundet’s assets, acquired by Crown Cork, had a
fair market value of $1 billion, Crown Cork could still be liable for damages in
this suit. But because Crown Cork’s asbestos-related liability payments
exceeded the asset value of Mundet, it had reached the statutory limit for its
liabilities as successor to Mundet. Even assuming for the sake of argument
that the removal of recovery against one defendant in such a suit is not merely
a change in remedy but a deprivation of a right, in this case the infringement
was not a complete bar to all recovery for the wrongs alleged.
Accordingly, the Robinsons were able to proceed against other defendants for the
same claims based on admittedly the same injury.
Fourth, the Legislature rationally drew Chapter 149 to address a problem it
perceived as very important—the effects on the Texas economy and employment
because of the bankruptcy of companies that never manufactured, sold, or
distributed asbestos-containing products. The asbestos litigation “crisis”
had been well recognized in academic journals and even court decisions at the
time the Legislature debated and enacted House Bill 4. E.g. , Orszag, 44 S.
Tex. L. Rev . at
1078–81; Amchem Prods., Inc. v. Windsor , 521 U.S. 591, 598 (1997) (“‘The
most objectionable aspects of asbestos litigation can be briefly summarized:
dockets in both federal and state courts continue to grow; long delays are
routine; trials are too long; the same issues are litigated over and over;
transaction costs exceed the victims’ recovery by nearly two to one; exhaustion
of assets threatens and distorts the process; and future claimants may lose
altogether.’” (quoting Judicial Conference Ad Hoc Committee on Asbestos
Litigation, Report to the Chief Justice of the United States and Members of
the Judicial Conference of the United States , at 2–3 (Mar. 1991)));
Humble Sand & Gravel, Inc. v. Gomez , 146 S.W.3d 170 , 203–04 (O’Neill,
J., dissenting) (recognizing the crisis and noting that “the solution to these
problems is legislative, not judicial”); Paul F. Rothstein, What Courts Can
Do in the Face of the Never-Ending Asbestos Crisis , 71 Miss . L.J. 1, 1, 4–9 (2001) (describing
the “ever-expanding” crisis, and the filing of claims “[o]ver $20 billion and
thirty bankruptcies later”). Others examined the potential for unfairness
when a larger corporation’s assets became susceptible to the stress of asbestos
liability from a long-since acquired subsidiary. As stated by one
commentator:
[I]n
asbestos litigation, courts have cast aside the theory behind the [successor
liability] doctrine. Instead of limiting the successor corporation’s
liability to the market value of the acquired corporation, or even to that value
plus any profits generated by the acquisition, courts have allowed successors to
be subjected to limitless liability[, which is a] runaway application of the
successor liability doctrine.
Mark H.
Reeves, Note, Makes Sense to Me: How Moderate, Targeted Federal Tort Reform
Legislation Could Solve the Nation’s Asbestos Litigation Crisis , 56 Vand. L. Rev . 1949, 1972–73 (2003);
see also, e.g., Lester Brickman, The Asbestos Litigation Crisis: Is
there a Need for an Administrative Alternative? , 13 Cardozo L. Rev . 1819, 1831–33 (1992)
(recognizing that the asbestos litigators invoked successor liability laws “so
as to reach into the deeper pockets of the companies that bought far smaller
entities that manufactured asbestos-containing materials regardless of the
culpability of the purchasing companies”).
The Statement of Legislative Intent filed by Representative Nixon recognized an
“unfairness” existing in corporate merger law where a “larger successor can
easily be bankrupted by the asbestos-related liabilities it innocently received
from a much smaller predecessor with which it merged may [sic] decades
ago.” H.J. of Tex., 78th Leg., R.S. 6042, 6043 (2003)
(HB 4 Statement of Legislative Intent). The Statement also
recognized that “Corporations actually in the asbestos business and their
successors through merger have been financially drained by decades of
litigation. As a result, nearly 70 such corporations have sought
protection through bankruptcy. The cost in jobs and pension benefits, to
cite just two examples, has been substantial.” Id. at 6044. These findings were recognized in
the House floor during debate, and were codified into the omnibus statute two
years later that reformulated the method in which asbestos claims are litigated
in Texas. See Act of May 19, 2005, 79th Leg., R.S., ch. 97,
§ 1 (b)–(h), 2005 Tex. Gen. Laws 169 , 169–70 (codified at Tex. Civ. Prac. & Rem.
Code §§
90.001–.012). Protection of Texas’s economy and jobs
is certainly a rational basis for enacting legislation, and here there is a
sufficient reason for the Legislature to enact the statute that it did.
Finally, the class of persons protected by the legislation has a rational
relation to the legislative purpose of the legislation. The
Legislature chose to relieve liability on “innocent successors,” companies that
did not manufacture or sell asbestos, but rather acquired a company that
did. And the Legislature mediated the perceived unfairness not by
foreclosing a remedy altogether, but merely limiting the remedy to the fair
value of the acquired company’s assets. Tex. Civ. Prac. &
Rem. Code §§ 149.001,
.003. In this case, that is exactly what
happened. Crown Cork’s total liabilities for the asbestos sold and
manufactured by Mundet far exceeded Mundet’s present-day fair value. Had
Mundet never been acquired by Crown Cork, its payouts for asbestos liability
would have exceeded its value as a going concern, it likely would have been
bankrupt, and, almost certainly, no money would have remained to pay the
Robinsons’ claims if they obtained a judgment against it. See In re
Joint E. & S. Dists. Asbestos Litig. , 237 F. Supp. 2d 297 , 302–06
(E.D.N.Y. 2002) (discussing the factual and procedural background of the
bankruptcy of the Manville Corporation, the establishment of the Manville Trust
following its bankruptcy to pay asbestos claims, and its reformation once it was
discovered that the trust was “deeply insolvent” and that beneficiaries would
not be able to be paid in full, or even paid at all). Crown Cork chose to
acquire Mundet through a statutory merger and not through an asset purchase, but
it remains the purview of the Legislature to modify the legal effect of
continuing liability of such mergers in Texas to avoid the ruin of businesses
possessing assets that had nothing to do with asbestos production or
manufacture. Importantly, the legislation restricts neither the right nor
the remedy of plaintiffs who prove that Crown Cork itself caused them injury; it
only addresses imputed successor liability.
In short, for the reasons articulated above, the Robinsons’ interest in their
accrued, but unliquidated cause of action, is
low. Their vested expectancy, if any, is minimal. Their right of
recovery for the injuries complained of was not foreclosed. And their
relation to Crown Cork was attenuated. The public interest in the
legislation, and its retroactivity, is moderate. The Legislature acted in
response to a known litigation crisis and acted with a reasonable and narrowly
tailored response based on the current climate. Individuals may or may not
personally believe in the wisdom of the particular legislation, but it is not
our province to second-guess legislation because we do not agree with its
policy. See McIntyre v. Ramirez , 109 S.W.3d 741,
748 (Tex. 2003).
b. A Critique of the Court’s Test
Although I disagree with the Court’s analytical framework in arriving at its
three-factor balancing test and the unfoundedly rigorous legal standards it
applies, I do not wholesale disagree with the categories it has set up to
determine whether a retrospective law is unconstitutionally retroactive.
However, the Court’s application of the law to the facts in this case creates
more difficulties for the Legislature and the courts of our state in reviewing
retroactive laws, and creates significant and unnecessary impediments to the
Legislature’s ability to correct law and make beneficial legislative changes in
the future.
First, I disagree with the “compelling reason” standard applied by the
Court. Nothing in our precedent, or any case law, requires such a
heightened review of retroactive legislation. The Court repeatedly
mentions the heavy presumption against retroactive legislation, but the
presumption falls away in this case. The presumption is removed when a
legislature “itself has affirmatively considered the potential unfairness of
retroactive application and determined that it is an acceptable price to pay for
the countervailing benefits.” Landgraf , 511 U.S. at 272–73.
Not only did the Legislature “consider the potential unfairness” in this case,
it voted to apply Chapter 149 retroactively by a supermajority. The
Court’s point that we should view fully retroactive legislation with skepticism
is well taken; however, the presumption against retroactivity is unnecessary
when the Legislature expressly concludes that the statute is to be applied
retroactively. Id. ; accord Lockheed Corp. v. Spink ,
517 U.S. 883 , 896–97 (1996) (“[When] the temporal effect of a statute is
manifest on its face, ‘there is no need to resort to judicial default rules,’
and inquiry is at an end.” ( quoting Landgraf ,
511 U.S. at 280)); Tello v. Dean Witter Reynolds, Inc. , 410 F.3d 1275 ,
1281–82 (11th Cir. 2005) (“[The] presumption and analysis, however, are
unwarranted when Congress states its unambiguous intention that the statute
apply retroactively to pre-enactment
conduct . . . .”). Because it is for the Legislature
to initially determine whether the benefits of retroactive legislation outweigh
the detriments (at least to the statute as a whole), we are not commanded to
review that decision to determine whether their justification was “compelling.”
Second, the Court’s evaluation of the Robinsons’ interest seems to be focused on
its pretrial evaluation of not only the existence of the Robinsons’ claims, but
their strength. The Court argues that the Robinsons’ claims have “a
substantial basis in fact” and that their claims are “mature tort[s], [such
that] recovery is more predictable.” ___ S.W.3d
___. I would not require courts in this state to evaluate
plaintiffs’ claims or defendants’ defenses, under the Retroactivity Clause on
whether the parties are likely to win or their claims have a “substantial basis
in fact.” As any experienced lawyer will acknowledge, the strength of a
claim and the likelihood of success in litigation may be separate and
independent things. This consideration is unwieldy, suggesting that the
Legislature can enact retroactive legislation affecting substantive rights so
long as there is a chance that it will not matter, at the end of the day.
Third, the statute does not affect settled expectations to the degree alleged by
the Court. The Court alleges that the statute will affect the recovery “to
which the Robinsons are entitled,” once again presuming that the Robinsons’
claims against Crown Cork will be successful. ___ S.W.3d
___. As discussed above, the Robinsons had no pre-tort contact with
Crown Cork, and had no settled expectation that Mundet would be acquired by a
richer company able to pay for Mundet’s debts.
Fourth, the Court penalizes the Legislature because the legislation does not
contain expressed “findings to justify Chapter 149.” ___S.W.3d___. The Court does not consider the
well-known facts about the asbestos crisis, Crown Cork’s financial stake,
subsequently codified legislative findings, or the possibility that other
businesses may be subjected to financial ruin, as these facts were not included
in the actual statutory language in House Bill 4. While I agree that such
statutory findings are most helpful in determining legislative intent, United
States v. Lopez , 514 U.S. 549 , 562–63 (1995) (concerning the Commerce
Clause), I am aware of no Texas case that requires them. And, in fact, if
the Legislature were to be so required for every bill in which their police
power may be challenged, certainly the legislative process would be
significantly burdened. Rational basis review does not require the
Legislature to provide any particular purpose; the law will be upheld “if there
is any conceivable state of facts which would support it.” Carmichael v. S. Coal & Coke Co. , 301 U.S. 495, 509
(1937). The law may be valid even if the Legislature did not
consider the valid purposes, but so long as the purpose “may have been
considered to be true.” Nordlinger v. Hahn , 505
U.S. 1, 11 (1992) (citations omitted).
Thus, I believe it is imprudent to abandon our vested rights jurisprudence, and
as applied, the Robinsons’ do not have vested rights in their causes of action
against Crown Cork. Even if the Robinsons’ claims are vested rights, I
would hold that, on balance, the Legislature’s exercise of police power
outweighs the Robinsons’ rights, and thus Chapter 149 does not violate article
I, section 16 of the Texas Constitution.
B. Special Law
Because the Court determines that Chapter 149 is unconstitutionally retroactive
as applied to the Robinsons, it does not address the Robinsons’ second argument,
that Chapter 149 is an unconstitutional “special law.” I would hold that
it is not.
Article III, section 56(b) of the Texas Constitution provides that “where a
general law can be made applicable, no local or special law shall be
enacted.” Tex. Const . art.
III, § 56(b). A “special law” is a statute that
“relates to particular persons or things of a class,” rather than the
class as a whole. Clark v. Finley , 54 S.W. 343, 345 (Tex. 1899)
(emphasis added), cited in Lucas v. United States , 757 S.W.2d 687, 700
(Tex. 1988); see also Ford Motor Co. v. Sheldon , 22 S.W.3d 444, 456 (Tex.
2000) (defining a “special law” as one that “impermissibly distinguishes between
groups on some basis other than geography” (citing Tex. Boll Weevil
Eradication Found. v. Lewellen , 952 S.W.2d 454, 465 (Tex. 1997))). The
prohibition on special laws was added to the Texas Constitution of 1876 as one
of many practical answers to the prevalent abuse of legislative and executive
power that occurred in Texas following the Reconstruction. A.J. Thomas,
Jr. & Ann Van Wynen Thomas, The Texas
Constitution of 1876 , 35 Tex. L.
Rev . 907, 915 (1957). In one session of the post-Reconstruction
legislature five hundred special laws were passed. Id.
Section 56 was thus seen to prevent “logrolling,” 1 9 to ensure against the granting of
special privileges, and to prevent lawmakers from trading votes “for the
advancement of personal rather than public interest.” Miller v. El Paso
Cnty. , 150
S.W.2d 1000, 1001 (1941); Sheldon , 22 S.W.3d at 456 .
In the early twentieth century, the Court developed a test for reviewing whether
a law providing a privilege to a particular class is in actuality a veiled
attempt to provide a privilege to a particular member of the class. See
Sheldon , 22 S.W.3d at 450–51; Maple Run at Austin Mun. Util. Dist. v. Monaghan , 931 S.W.2d
941, 945 (Tex. 1996); Robinson v. Hill ,
507 S.W.2d 521, 525 (Tex. 1974); R.H.O, Recent Case, Statutes—Special
Laws—Reasonableness of Classification , 11 Tex. L. Rev . 134, 134–35 (1932) (collecting
cases describing the legal standard for review of a special law). The
Court first determines whether there is a reasonable basis for the
classification made by the law, and then determines whether the law operates
equally on all within the class. Rodriguez v.
Gonzales , 227 S.W.2d 791, 793 (1950); Sheldon , 22 S.W.3d at
451 . Only if the law fails both tests is it a special law and
unconstitutional.
The determination of a “reasonable basis” for the classification is not an
invitation for the Court to engage in weighing the relative pros and cons of a
particular policy choice made by the Legislature. As stated by this Court
over 100 years ago:
Now, we do
not propose to be led off into any extended discussion as to what is a proper
class for the application of a general law. The tendency of the recent
decisions upon the subject, as it seems to us, is to drift into refinements that
are rather more specious than profitable. . . . To what
class or classes of persons or things a statute should apply is, as a general
rule, a legislative question. When the intent of the legislature is clear,
the policy of the law is a matter which does not concern the courts.
Clark ,
54 S.W. at 345–46. We do not analyze the Legislature’s classification to
determine whether the classification is a good or bad idea. See Smith
v. Davis , 426 S.W.2d 827, 831 (Tex. 1968).
Rather we analyze to ensure that the classification is not made to “evade the
prohibition of the constitution as to special laws by making a law applicable to
a pretended class, which is, in fact no class . . . .” Clark , 54
S.W. at 345 . We presume the statute is valid, and “a mere difference of
opinion” between the Court and the Legislature will not be sufficient to
overcome the presumption of validity. Smith , 426
S.W.2d at 831 .
The Rodriguez test’s two-part structure provides the framework to
determine whether a class is a “pretended class.” The first part of the
test examines the delineated class vis-a-vis the purpose of the
legislation. Rodriguez , 227 S.W.2d at
793 . For example, if the purpose of the law is to provide tax
relief to businesses in the sports entertainment industry, but the tax relief is
given only to businesses belonging to or supporting teams in leagues or
conferences with “National” in their name but not with leagues or conferences
with “American” in their name, the classification would likely have no rational
relation to the purpose of the statute.
The second part of the test examines whether similarly situated parties are
treated similarly under the classification, or whether the classification makes
an irrational category considering the intent of the statute. See,
e.g. , Rodriguez , 227 S.W.2d at 794 (holding that statute setting out
special procedures for collecting delinquent taxes on parcels of land greater
than 1,000 acres situated in counties bordering Mexico and whose title emanated
from the King of Spain as an unconstitutional special law, as there was “no
substantial difference in the situation or circumstance of border counties
relating to suits for delinquent taxes”); Miller , 150 S.W.2d at 1002–03
(holding as unconstitutional a statute providing an economic development tax
only in counties meeting population requirements, due to the fact that the
statute’s classification was not distinct in any substantial manner from other
counties in the state). Back to the example, the tax relief statute above
would likely be unconstitutional, as its effect is to provide relief to the
Houston Astros and the Dallas Cowboys and the businesses that support them (as
the Astros are a member of the National League, and the Cowboys are a member of
the National Football Conference), but would not provide relief to supporters of
the Houston Texans and the Texas Rangers (as the Texans are a member of the
American Football Conference and the Rangers are a member of the American
League). The classification is a “pretended class” because the
classification has no relation to the purpose of the law and treats similarly
situated teams differently. Although the Court does not defer to the
Legislature to determine whether a law is general or special, it does defer to
the Legislature’s policy choices and presumes that law is constitutional.
See Smith , 426 S.W.2d at 831 ; McIntyre v.
Ramirez , 109 S.W.3d 741, 748 (Tex. 2003) (“Our role here, however, is not to
second-guess the policy choices that inform our statutes or to weigh the
effectiveness of their results; rather, our task is to interpret those statutes
in a manner that effectuates the Legislature’s intent.”).
In this case, the purpose of the law has been clearly expressed by the
Legislature—to eliminate the unfairness created when a corporation merged with a
smaller corporation that had previously been engaged in the manufacture or sale
of asbestos is exposed to asbestos liability exceeding the value of the acquired
corporation, and to save such a corporation from bankruptcy. H.J. of Tex., 78th Leg., R.S. 6042, 6043 (2003) (HB 4 Statement of
Legislative Intent). To address concerns in the Legislature, the
measure was restricted in three ways. First, the original transfer of
liabilities had to occur prior to May 13, 1968. This was the date in which
the American Conference of Governmental Industrial Hygienists first adopted a
change in the recommended threshold limit for asbestos in the air of a
workplace. Second, to get the benefit of the legislation, the acquiring
corporation could not continue in the asbestos business. Third, if the
successor continued to control a premises after the
merger, the successor would continue to be liable for any asbestos-related
premises liabilities it received from the predecessor for injuries caused on
those premises. Id. at 6043–44.
The Robinsons attack these limitations as pretexts to limit relief just to Crown
Cork. However, it is clear that, regardless of the wisdom of the
classifications, the classifications are rationally related to the objective of
the bill. The act sought to protect “innocent” successor
corporations. To define the most “innocent,” the Legislature chose to
limit mergers occurring prior to May 13, 1968. The Robinsons claim that
this date was chosen arbitrarily and that the dangers of asbestos in the
workplace were known prior to the ACGIH’s modification. However, this is
the date decided upon by the Legislature, and it has a rational relationship to
the legislation—the Legislature could have, no doubt, chosen any number of
cutoff dates to decide which successor corporations are the most “innocent,” and
while others may disagree as to the appropriateness of the date, such would
merely be a “difference of opinion,” and insufficient basis for overturning the
statute. Smith , 426 S.W.2d at 831 ; see also Exxon Mobil Corp. v.
Altimore , 256 S.W.3d 415 , 420–22 (Tex. App.—Houston [14th Dist.] 2008, no
pet.) ( discussing , in the context of the basis for a
punitive damages award “scientists’ knowledge of the risk to refinery workers”
of asbestos, and noting studies originating in the 1940s, 1950s, 1960s, and
1970s). Similarly, the second and third limitations also seek to limit
protection to those businesses that were not involved with the manufacture or
distribution of asbestos, or those that actually had asbestos on the
premises. This is also a rational distinction: The Legislature
sought to protect those businesses that had nothing to do with asbestos prior to
a merger, had nothing to do with asbestos after the merger, and had no asbestos
on its premises. The classifications are rational.
The Robinsons also argue that the law is a “special law” because it created a
class of one—evidenced by (a) the fact that Crown Cork did not identify any
other businesses to which the law applied, (b) Crown Cork’s lobbying for the law
in Texas and other states, and (c) statements by members of the Legislature that
they were addressing “the Crown Cork and Seal Issue.”
The Robinsons cite to Miller’s statement that classification “must be
broad enough to include a substantial class . . .” to mean that it is the burden of
the proponent of the law to prove that the law must apply to more than one
person. Miller , 150 S.W.2d at 1001 .
On the contrary, the size of the class, itself, is not determinative.
While courts must be more exacting in reviewing a law that appears only to apply
to one party, a “substantial” class does not equate to a class with thousands,
hundreds, or even dozens of members. There are no doubt many Texas laws
that apply to a small subset of the population; rather, a “substantial” class is
one that has substance—a real class of persons or entities, as opposed to a
“pretended” class created as a pretext.
The Robinsons’ evidence of pretext is no evidence at all. The Robinsons’
bare argument that Crown Cork is a “class of one” is insufficient. First,
it is not Crown Cork’s, but the Robinsons’ burden to demonstrate that the law is
a special law. Second, even if the Robinsons could show that the law
currently applied only to Crown Cork, that alone would
not fulfill the burden that the law was special. As discussed above, the
Robinsons must show that the classifications made by the Legislature were not
rationally related to the objective of the law, and the Robinsons must show that
the legislation has treated a similarly situated successor company differently
from Crown. They have done neither.
The only other evidence the Robinsons provide is evidence of legislative
history. The Robinsons argue that the law is special because Crown Cork
lobbied for the act and that at least one legislator called the Act the “Crown
Cork issue” in a committee hearing. This evidence is also
unavailing. First, as a beneficiary of this law, Crown Cork would
certainly lobby for its enactment. But then again, public interest groups,
individuals, and businesses regularly lobby for legislation that affects them
directly or as an industry, and lobbyists regularly draft legislation for
legislators. See, e.g. , Victoria F. Nourse & Jane S. Schacter,
The Politics of Legislative Drafting: A Congressional Case Study ,
77 N.Y.U. L. Rev . 575, 583, 587,
591 (2002) (noting a number of responses by legislative aides that lobbyists
regularly draft the text of bills debated in the Senate Judiciary Committee and
discussing an account by a legislative aide where a companion bill was
“negotiated and drafted by lobbyists and introduced with only ‘minor
changes’”). Many involved in the “sausage making” 2 0 task of developing law use lobbyists to
draft the text of bills because lobbyists provide valuable information and
perspective on the bills being introduced. Id. at
583. Cognizant as I am of the need to avoid the gifts given by the
Legislature to favored individuals, the Robinsons must come up with more
evidence than the mere fact that Crown Cork was involved in the passing, or even
the drafting, of the act in question.
Likewise, the Robinsons’ evidence of Senator Ratliff’s statement is also not
evidence of House Bill 4’s “special law” status. The senator described
Article 17 as “the Crown Cork and Seal asbestos issue.” First, the
statement is no evidence because, as this Court has repeatedly stated, a single
statement by a single legislator does not evidence legislative intent and does
not determine legislative intent. E.g. ,
AT & T Commc’ns of Tex., L.P. v. Sw. Bell Tel. Co. , 186
S.W.3d 517 , 528–29 (Tex. 2006); Gen. Chem. Corp. v. De La Lastra , 852
S.W.2d 916, 923 (Tex. 1993). Second, to countenance this statement
as even “persuasive authority as might be given the comments of any learned
scholar of the subject,” De La Lastra , 852 S.W.2d at 923 , would be to do
a disservice to the legislative process. Countless laws are either
championed by a particular person or entity or arise out of the circumstances
that will be or have been experienced by an individual or a business. 2 1
In sum, the
Robinsons meet neither of the factors in the Rodriguez test. The
Robinsons have not shown that the Legislator’s classifications are irrational or
not related to the objective of the statute, nor have they shown that the
Legislature has created a “pretended” class by excluding similarly situated
entities.
III. CONCLUSION
I would hold that Chapter 149 is not an unconstitutional special law, and is not
unconstitutionally retroactive as applied to the Robinsons because the law
limited available remedies and did not destroy the Robinsons’ vested
rights. I therefore respectfully dissent.
_______________________________________
Dale Wainwright
Justice
OPINION DELIVERED: October
22, 2010
1
The term “statutory merger” is used to distinguish business mergers made
pursuant to the statutory scheme of the state of incorporation from other,
nonstatutory forms of combinations, for example asset-purchase and
stock-purchase transactions. 20A Robert W. Hamilton, Elizabeth S. Miller, &
Robert A. Ragazzo , Texas Practice
Series: Business Organizations § 43.2 (2d ed.
2004).
2
The House also defeated an amendment making
the bill applicable only to successor liabilities assumed or incurred after the
effective date of the act. H.J. of Tex., 78th Leg., R.S.
818–19 (2003).
3
The act also provides a number of exceptions,
excluding, among other things, workers’ compensation claims, an insurance
corporation, a claim made in a bankruptcy proceeding begun prior to April 1,
2003, claims for premises liability, or claims against a “successor that, after
merger or consolidation, continued in the business of mining asbestos or in the
business of selling or distributing asbestos fibers or in the business of
manufacturing, distributing, removing, or installing asbestos-containing
products which were the same or substantially the same as those products
previously manufactured . . . by the transferor.” Id. § 149.002(b).
4
The Robinsons’ remedies against the other
defendants pending at the time of the enactment of the statute was not limited by Chapter 149, but their remedy against
Crown Cork was. The Robinsons eventually recovered at least $850,000 from
other defendants sued in addition to Crown Cork.
5
On November 16, 2003, after the trial court
entered its amended order granting summary judgment, John Robinson died.
Mrs. Robinson continued to prosecute her claims individually and as
representative of the estate of John Robinson. Because the claims still
live independently, one for Mrs. Robinson and one for the estate of John
Robinson, this opinion will refer to petitioners as the
Robinsons.
6
The Court astutely notes that, due to the odd
procedural posture of the case, as well as Mr. Robinson’s untimely passing, it
is unclear which legal claims are being allegedly retroactively
extinguished. Because the parties raise only
whether Chapter 149 is unconstitutionally retroactive as applied to Mr.
Robinson’s common law claims (kept alive through the survival statute and
pursued derivatively through the wrongful death statue) I, as the Court, address
only those arguments. However, as more fully discussed below, the fact
that the Robinsons’ claims are statute-based reinforces the conclusions of this
vested rights analysis.
7
See also Milam Cnty. v. Bateman , 54 Tex. 153, 163 (1880); Moore v. Letchford , 35
Tex. 185, 222 (1871) (Ogden, J., dissenting) (noting that the Legislature may
pass retrospective legislation that “would regulate” and neither“create nor
destroy vested rights” (emphasis added)) ; Hamilton v. Avery , 20 Tex.
612 (1857); Nichols v. Pilgrim , 20 Tex. 426 , 428–29 (1857) (discussing
whether an executed contract for the sale of land was a “vested right” allowing
suit for partition of land, notwithstanding the enactment of the statute of
frauds).
8
See, e.g. , Landgraf v. USI Film Prods. , 511 U.S. 244, 272
(1994) (recognizing that the “ constitutional impediments to retroactive
civil legislation are now modest”); see also Hochman, 73 Harv. L. Rev. at 717 & n.135
(“[T]he Court has many times sustained the application of a retroactive statute
to an accrued cause of action.” (citing Louisville & Nashville R.R. v.
Mottley , 219 U.S. 467 (1911))).
9
Hammond v. United States, 786 F.2d 8, 12 (1st Cir. 1986) (“The question whether
the rights asserted in plaintiff’s state-law causes of action are ‘vested’
cannot be answered by looking to see whether suit had already been
filed . . . . No person has a vested interest in any
rule of law [and] this is true after suit has been filed and continues to be
true until a final, unreviewable judgment is obtained.” (citations and
quotations omitted)); In re TMI , 89 F.3d 1106 , 1115 n.9 (3d Cir. 1996)
(distinguishing cases holding accrued causes of action to be vested rights,
calling them “contrary to current federal constitutional precedent that finds no
vested right in a tort cause of action before final judgment); Zeran v. Am.
Online, Inc. , 129 F.3d 327, 335 (4th Cir. 1997) (“No person has a vested
right in a nonfinal tort judgment . . . .”); Arbour v.
Jenkins , 903 F.2d 416, 420 (6th Cir. 1990) (quoting Sowell );
Konizeski v. Livermore Labs, (In re Consol. U.S. Atomospheric Testing
Litig.) , 820 F.2d 982, 989 (9th Cir. 1987) (quoting Hammond );
Grimesy v. Huff , 876 F.2d 738 , 743–44 (9th Cir. 1989) (reviewing vested
rights cases under a Fifth Amendment takings analysis); Taxpayers for the
Animas-La Plata Referendum v. Animas-La Plata Water Conservancy Dist. , 739
F.2d 1472 , 1477–78 (10th Cir. 1984) (holding that “inchoate” rights, such as the
right to pursue legal remedies are not “vested” for purposes of the Colorado
state and federal constitutions); Salmon v. Schwartz, 948 F.2d
1131, 1143 (10th Cir. 1991) (quoting Arbour and Sowell ); Sowell
v. Am. Cyanid Co. , 888 F.2d 802 , 805 (11th Cir. 1989) (“The fact that the
statute is retroactive does not make it unconstitutional [because] a legal claim
affords no definite or [enforceable] property right until reduced to a final
judgment.”); see also Lunsford v. Price , 885 F.2d 236 , 240–41(5th Cir.
1989) (holding the applicability of a statute to pending claims was not
manifestly unjust); Garcia v. Wyeth-Ayerst Labs. , 385 F.3d 961, 968 (6th
Cir. 2004) (noting that Michigan statute of repose, which “prevent[s] causes of
action from accruing” did not violate retroactivity provisions of the federal
constitution); Symens v. SmithKline Beecham Corp. , 152 F.3d 1050 , 1056
n.3 (8th Cir. 1998) (noting that federal regulations, which may preempt state
law claims would apply to plaintiffs’ tort and implied warranty claims “because
plaintiffs had no vested rights in these unasserted claims at the time [the]
preemption was modified” (citing Landgraf , 511 U.S. at 269, 273 )).
But see Davis v. Blige , 505 F.3d 90, 103 (2d Cir. 2007) (recognizing, in
a copyright case applying patent law, that a retroactive assignment destroys an
owner’s “valuable and vested right to enforce her claim”); Hoyt Metal
Co. v. Atwood , 289 F. 453 , 454–55 (7th Cir. 1923) (deciding whether a
judgment is to be accorded the status of a vested right and stating
“[t]hat an accrued cause of action is a vested property right is well
settled . . . . Certainly a judgment is a vested property
right.”); De Rodulfa v. United States , 461 F.2d 1240, 1257 (D.C.
Cir. 1972) (indicating that “a vested cause of action, whether emanating from
contract or common law principles, may constitute property beyond the
power of the legislature to take away,” but not so holding because no cause of
action—interference with contract—existed in the case (emphasis
added)).
10 I concede
that a majority of other states to directly address the issue have held that an
accrued, yet unliquidated cause of action is a “vested right” under either
retroactivity or due process analyses. However, a number of other states
provide a more nuanced view. For example, Colorado, one of the
jurisdictions whose constitution also includes a prohibition on retroactive
legislation, has held that a “vested right” is “one that is not dependent
on the common law or statute but instead has an independent existence.” In re Estate of DeWitt , 54 P.3d 849, 853 (Colo.
2002). The Colorado Supreme Court would determine this “independent
existence” by balancing: “(1) whether the public interest is advanced or
retarded; (2) whether the statute gives effects to or defeats the bona fide
intentions or reasonable expectations of the affected individuals; and (3)
whether the statute surprises individuals who have relied on a contrary
law.” Id. Nonetheless, the court, and the state’s lower
courts, do not recognize that an accrued cause of action is a vested right per
se. City of Greenwood Vill. v. Pets. for the
Proposed City of Centennial , 3 P.3d 427 , 445–46 (Colo. 2000)
(“[C]ontemporary precedent also demonstrates that expectations of parties to
litigation are not equivalent to vested rights.”); see also Miller v.
Brannon , 207 P.3d 923 (Colo. App. 2009) (“A vested right must be a contract
right, a property right, or a right arising from the transaction in the nature
of a contract which has become perfected to the degree that it is not dependent
on the continued existence of the statute or common law .” ( emphasis added) ( quotations
omitted)).
11
See Houston Indep. Sch. Dist. v. Houston
Chronicle Publ’g Co. , 798 S.W.2d 580, 589 (Tex. App.—Houston [1st Dist.]
1990, writ denied); see also Walls v. First State Bank of Miami , 900
S.W.2d 117, 122 (Tex. App.—Amarillo 1995, writ denied) (holding that retroactive
application of federal law shielding employees of a financial institution for
reporting suspected wrongdoing was properly applied to lawsuit for malicious
prosecution and defamation that had been filed prior to the enactment of the law
and stating that “only final, nonreviewable judgments will be accorded the
dignity of vested, constitutionally guarded rights, and a law will be deemed to
have a prohibited retroactive effect only when it impairs those rights”);
Tex. Gas Exploration Corp. v. Fluor Corp. , 828 S.W.2d 28, 32 (Tex.
App.—Texarkana 1991, writ denied) (“A party has no vested right to a cause of
action; neither the Constitution of the United States nor this state forbids the
abolition of common-law rights to attain a permissible legislative objective.”);
Aetna Ins. Co. v. Richardelle , 528 S.W.2d 280, 285 (Tex. Civ. App.—Corpus
Christi 1975, writ ref’d n.r.e.) (noting that even though a plaintiff’s cause of
action had accrued against a minor child, the plaintiff could not proceed
because the Legislature amended the statute to foreclose recovery against
children the defendant’s age and the plaintiff “had not acquired a ‘title . . . to the present or future
enforcement of a demand’” (quotations omitted)); ain Satterfield v. Crown
Cork & Seal Co. , 268 S.W.3d 190 , 221–41 (Tex. App.—Austin 2008, no pet.)
(Law, C.J., dissenting) ( noting that the
plaintiffs had no vested right in the successor liability remedy against
Crown because vested rights are “certain and immediately enforceable,” the
successor liability theory does not create a cause of action, and economic
interests could be considered in police power balancing). But see
Satterfield , 268 S.W.3d at 206–09 (holding that plaintiff in asbestos suit
had vested rights in accrued cause of action).
12 The
Open Courts Clause of the Texas Constitution, not at issue in this case, may
impose limitations on the extent to which unliquidated claims may be barred.
Tex. Const . art. I, § 13; Sax v.
Votteler , 648 S.W.2d 661 , 665–66 (Tex. 1983) (holding that the “right to
bring a well-established common law cause of action cannot be effectively
abrogated by the legislature absent a showing that the legislative basis for the
statute outweighs the denial of the constitutionally-guaranteed right of
redress”); see also Walters v. Cleveland Reg’l Med. Ctr. , 307 S.W.3d 292,
295 (Tex. 2010).
13 Justice Medina , citing Ex parte Abell and quoting
Mellinger , alleges that the Retroactivity Clause “goes beyond federal
guarantees of property and due process.” ___ S.W.3d ___ (Medina, J.,
concurring). While Abell recognized that proposition, it did so
while simultaneously recognizing that “[i]n practice . . . retroactive lawmaking has not
been viewed as the gross abuse of power once assumed.” Ex parte
Abell , 613 S.W.2d at 259–60. Further, commentators and jurists from
other states have more recently recognized that specific retroactivity clauses
should not be read overly broadly. See, e.g. , 1 George D. Braden, The Constitution of the
State of Texas: An Annotated and Comparative Analysis 58 (1977) (“The
other prohibition concerning ‘retroactive laws’ seems to spring from a general
suspicion regarding all retroactive laws of which the three mentioned [ex post
facto, bills of attainder, and laws impairing the obligation of contracts] were
notorious examples. Early judicial restriction of the scope of ex post
facto laws to retroactive criminal laws may have prompted a desire to
re-establish the broader sweep, which the prohibition had in the minds of some
people, by general condemnation of retroactive laws.”); see also id.
at 59 (discussing the Mellinger dicta also
quoted by Justice Medina and
commenting that the authoring justice’s argument “excluded not only the specific
guarantees of section 16 but the due course of law limitation as well.
Although he perceived the growing scope of due process of law at the time of his
opinion, Justice Straton could not have foreseen its remarkable subsequent development . . . . Thus, it has
been said that laws are retroactive in the sense of section 16 only when they
contravene another specific prohibition of the Constitution.”); Bryant Smith,
Retroactive Laws and Vested Rights , 5 Tex. L. Rev . 231 (1926) (noting that,
in most states at the time, the explicit retroactive law provisions in other
states’ constitutions were coterminous with due process). Regardless of
whether the Retroactivity Clause in section 16 deserves a broader read than just
due process, there is nothing in the text of the Constitution to suggest that it
should apply to contingent expectancies such as exist in this
case.
14 The causation
question to the jury may have listed ten potential defendants, the number
remaining at the time Crown Cork’s partial summary judgment motion was
granted.
15 Justice Medina
argues that the final judgment rule is
inappropriate because “it is the right to sue itself—the lawsuit—that is being
taken away, not the final outcome.” ___ S.W.3d ___ (Medina, J.,
concurring). On the contrary, the Robinsons sued Crown Cork. There
were pleadings, discovery, and motion practice. Crown Cork had to prove
that it was entitled to the Chapter 149 defense, which it did through summary
judgment. In fact, if Crown Cork’s prior payout had been below Mundet’s
fair value, the Robinsons could recover against Crown Cork, but that question
must be established in the lawsuit. To the extent there is an expectation
to file and prosecute a cause of action (and not to recover on a claim), that
expectation was satisfied in this case.
16 The Robinsons
also argue that article I, section 29 of the Texas Bill of Rights, compels that
result. I agree with the Court that section 29 does not determine whether
and how the substantive portions of the Bill of Rights apply. ___ S.W.3d ___. Furthermore, section 29 is generally
cited only for the proposition that courts have the power to declare laws
unconstitutional. 1 Braden
at 86–87, cited in Oakley v. State , 830 S.W.2d 107 , 110–11 (Tex.
Crim. App. 1992); cf. Travelers Ins. Co. v. Marshall , 76 S.W.2d 1007,
1011 (Tex. 1934) (citing to section 29, among other things, to depart from the
U.S. Supreme Court’s view and declare unconstitutional a law impairing the
obligation of contracts); see also City of Beaumont v. Bouillion , 896
S.W.2d 143 , 148–49 (Tex. 1995) (“Section 29 has been interpreted as follows: any
provision of the Bill of Rights is self-executing to the extent that anything
done in violation of it is void.”); Republican Party of Tex. v. Dietz ,
940 S.W.2d 86 , 89–91 (Tex. 1997) (analyzing section 29 and holding that the
Texas Bill of Rights protects against government, not private,
conduct).
17 E.g. ,
Phillips , 608 A.2d at 902 (articulating a similar test balancing:
“(1) the nature and strength of the public interest served by the statute, (2)
the extent to which the statute modifies or abrogates the asserted right, and
(3) the nature of the right that the statute alters” and discussing whether the
application of the statute would result in “manifest injustice”); Estate of
DeWitt , 54 P.3d at 855 (balancing the vested right against public health and
safety concerns, the state’s police powers to regulate certain practices, and
other public policy concerns, so long as there is a rational relationship
between the government interest that is asserted and the retroactive
legislation); Marriage of Bouquet , 546 P.2d at 1376 (examining “the
significance of the state interest served by the law, the importance of the
retroactive application of the law to the effectuation of that interest, the
extent of reliance upon the former law, the legitimacy of that reliance, the
extent of actions taken on the basis of that reliance, and the extent to which
the retroactive application of the new law would disrupt those actions”);
Reed v. Brunson , 527 So. 2d 102 , 115–16 (Ala. 1988) (eliminating
co-employee lawsuits, while noting that “[i]t is certainly within the police
power of the legislature to act to enhance the economic welfare of the citizens
of this state [by eliminating the common law cause of
action]. . . in an attempt to eradicate or ameliorate what it
perceives to be a social evil”); Mergenthaler v. Asbestos Corp. of Am. ,
534 A.2d 272 , 276–77 (Del. Super. Ct. 1987) (noting that the determination of
retroactivity “rests on subtle judgments concerning the fairness of applying the
new statute” and noting that the considerations of vested rights “may be
moderated or overcome if the statute is in furtherance of the general police
power for concerns of public, health, morals, safety, or general welfare” and
holding retroactive application of workers’ compensation benefits to asbestos
claimants who were exposed prior to coverage was not unconstitutionally
retroactive).
18 Courts have
repeatedly recognized that a statute depriving a court of jurisdiction to hear a
dispute does not implicate a vested right. David McDavid Nissan , 84
S.W.3d at 220 ; In re A.D. , 73 S.W.3d 244, 249 (Tex. 2002); see also
Landgraf , 511 U.S. at 274 (recognizing that statutes that confer or oust
jurisdiction are regularly applied retroactively). If the mere right to
sue were the constitutionally protected interest, then the Robinsons would have
it, and those whose claims were no longer justiciable in a court of competent
jurisdiction would not. Therefore, the right protected by the
Retroactivity Clause must truly be focused on the substance of the claim—the
actual recovery—rather than the right to get to a recovery.
19 “Logrolling” has been defined by our Courts of
Appeals as “the inclusion in a bill of several subjects having no connection
with each other in order to create a combination of various interests in support
of the whole bill,” Skillern v. State , 890 S.W.2d 849, 861 (Tex.
App—Austin 1994, no writ) (citations omitted), and “trading votes to advance
personal rather than public interests,” Diaz v. State , 68 S.W.3d 680, 684
(Tex. App.—El Paso 2000, pet. denied).
20 “Laws, like
sausages, cease to inspire respect in proportion as we know how they are
made.” John Godfrey Saxe, as quoted in The Yale Book of Quotations 86
(2006). This quotation has previously been attributed to Otto von
Bismarck. See id. ; In re Graham , 104
So. 2d 16, 18 (Fla. 1958).
21 No one could
claim that the Brady Handgun Violence Prevention Act of 1993, 18 U.S.C.
§ 921–22, advanced by former White House Press Secretary James Brady and
his wife Sarah, or the proliferation of Megan’s Laws, e.g. , N.J. Stat. § 2C:7-1 to 11, dealing with
sex offender registration throughout the country, named after Megan Kanka, a
minor who was sexually assaulted in New Jersey, or even the Copyright Term
Extension Act, which was sometimes known as the “Mickey Mouse Act,” because
Disney lobbied extensively for the act and because the act prevented the
original Mickey Mouse cartoon “Steamboat Willy” from entering the public domain,
see Ben Depoorter, The Several Lives of Mickey Mouse: The
Expanding Boundaries of Intellectual Property Law , 9 Va. J.L. & Tech, no. 4, Spring 2004, at 3 n .2 , would be special laws merely
because an individual, or even Disney, lobbied for them so strenuously that the
bill was eventually named for them.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2829216. Public record. Not legal advice.