TEXAS SUPREME COURT
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DECISIONS ON THE WEB - DISPOSITIONS
PFR's DENIED JANUARY 2009
Petitions for Review denied by Tex. Sup. Ct. in January 2008
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Most recent Petitions for Review denied by the Texas Supreme Court
THE FOLLOWING PETITIONS FOR REVIEW WERE DENIED JANUARY 2009:
Orders Pronounced January 30, 2009
ORDERS ON PETITIONS FOR REVIEW
THE FOLLOWING PETITIONS FOR REVIEW ARE DENIED:
08-0643
SAMUEL R. MARES, SR. v. VICTOR R. BLAINE; from Harris County; 1st district 01-07-00620-CV
(Dismissal for Want of Prosecution, DWOP)
08-0738
LOUIS A. OLIVAREZ v. RAELA JOHNSON OLIVAREZ; from San Patricio County; 13th district (13‑07‑00348‑CV, ___
SW3d ___, 08‑18‑08) as reinstated (attempted rescission of divorce agreement) as reinstated
08-0823
THE DANESHJOU COMPANY, INC. v. CNA CONSTRUCTION, INC.; from Travis County; 3rd district
(03‑04‑00734‑CV, ___ SW3d ___, 08‑08‑08)
(Justice O'Neill not sitting)
(Construction dispute, negligence, DTPA violations, and breaches of warranty and contract, contribution and
indemnity claims)
08-0827
THE DANESHJOU COMPANY, INC. v. LOMA EXCAVATION, INC.; from Travis County; 3rd district (03‑04‑00738‑CV,
___ SW3d ___, 08‑08‑08)
(Justice O'Neill not sitting)
08-0907
$43,774.00 U.S. CURRENCY AND 1997 MODEL PONTIAC GRAND PRIX, VIN #1G2WP12K7V323349 v. THE STATE
OF TEXAS; from Gregg County; 6th district (06-07-00126-CV, 266 SW3d 178, 09-12-08)(forfeiture)
In an attempt to recover his money and his car, Raymond McKinney appeals forfeiture to the State. McKinney has
not been accused or charged with any drug-related crime, but his property was confiscated by the State because it
was determined to be contraband. On appeal, McKinney contends the evidence is legally and factually insufficient to
support the verdict ordering forfeiture. We affirm the judgment of the trial court.
08-0926
DOUGLAS K. BROCAIL v. DETROIT TIGERS, INC.; from Harris County; 14th district (14-06-00557-CV, 268 SW3d
90, 04-03-08) (foreign choice of law clause enforced)
In this case, a major league baseball player for the Detroit Tigers sued the Club for injuries to his pitching arm. The
Club was granted summary judgment on the grounds, inter alia, that the player’s claims were barred by the federal
Labor-Management Relations Act, the Michigan Workers Disability Compensation Act, and Michigan’s statute of
frauds. We affirm.
08-0974
IN RE THE ESTATE OF SARAH E. BOREN, DECEASED; from Lamar County; 6th district
(06-07-00104-CV, 268 SW3d 841, 10-03-08)(probate law dispute, guardianship, power of attorney)
The previous ruling in this case as decided on September 4, 2008, (1)1 is withdrawn and this opinion is rendered in
its stead. (probated dispute)
Sarah E. Boren's last will and testament named her nephew, Richard Finley, as her first choice to serve as the
independent executor of her estate, with his mother, Jeanetta Finley (Sarah's sister-in-law), as his alternative or
successor. The will also devised her estate in equal shares to Richard and Jeanetta as her sole beneficiaries if her
husband, Charles Boren, did not survive her. The trial court entered an order refusing Richard's application for
probate and his application for appointment as independent executor. The trial court also impliedly ruled that
Richard and Jeanetta had effectively disclaimed any claim to inheritance under Sarah by signing documents which
complied with Section 37A of the Texas Probate Code.
Richard had served as attorney-in-fact for Sarah and her husband, Charles, neither of whom had children. However,
Charles was determined incapacitated and a guardian of his estate was appointed; the issuance of the letters of
guardianship rendered the durable power of attorney given by Charles no longer effective. (2)
08-0983
ROSA SCHWARTZ v. THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, GALLAGHER BASSETT
SERVICES, INC. AND BELINDA YBARRA; from Harris County; 1st district (01-07-00193-CV, ___ SW3d ___, 10-23-
08)
08-1012
IN THE INTEREST OF K.P. AND E.B., CHILDREN; from Dallas County; 5th district (05-07-01572-CV, ___ SW3d ___,
10-15-08)
http://www.13thcoa.courts.state.tx.us/opinions/HTMLOpinion.asp?OpinionID=17232
08-1012
IN THE INTEREST OF K.P. AND E.B., CHILDREN; from Dallas County; 5th district (05‑07‑01572‑CV, ___ SW3d ___,
10‑15‑08) as redrafted
08-0983
ROSA SCHWARTZ v. THE INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA, GALLAGHER BASSETT
SERVICES, INC. AND BELINDA YBARRA; from Harris County; 1st district (01‑07‑00193‑CV, ___ SW3d ___,
10‑23‑08) (insurance bad faith claim) Schwartz sued The Insurance Company of the State of Pennsylvania,
Gallagher Basset Services, Inc., and Belinda Ybarra (collectively, “Gallagher”) for damages arising from Gallagher’s
alleged unreasonable delay and denial in authorizing her requested foot surgery. The trial court granted Gallagher’s
plea to the jurisdiction. In two issues, Schwartz contends that the trial court erred in (1) ruling that she failed to
exhaust administrative remedies on her claims stemming from Gallagher’s refusal to pay for her foot surgery and (2)
granting Gallagher’s plea with respect to her claims arising from Gallagher’s refusal to pay for the care of the
neuroma on her foot. We affirm
08-1022
IN THE MATTER OF J.C.L., A JUVENILE; from Aransas County; 13th district
(13-08-00379-CV, ___ SW3d ___, 10-30-08)
Appellant, J.C.L., a juvenile, appeals from the trial court's order terminating her probation and sentencing her to an
indeterminate term in the Texas Youth Commission until discharge, which shall occur no later than her nineteenth
birthday. By a single issue, J.C.L. complains that the termination of her probation and sentence to TYC was
"unjustified, unreasonable, inappropriate and disproportionate to the seriousness of the alleged violation of a term
and condition of her juvenile probation," all in violation of the Eighth and Fourteenth Amendments to the United
States Constitution. See U.S. Const. amends. VIII and XIV. We affirm.
08-1047
MAX DUNCAN FAMILY INVESTMENTS, LTD. v. NTFN, INC. AND MORNINGSIDE PROPERTY CO.; from Dallas
County; 5th district (05-07-00430-CV, 267 SW3d 447, 08-26-08)
This case arises from misuse of corporate property to collateralize a personal real estate transaction. The trial court
granted a traditional summary judgment in favor of the corporate property owners, Morningside Property Co.
(“Morningside”) and NTFN Inc. (“NTFN”) and awarded attorney's fees. In three issues, Max Duncan Family
Investments, Ltd. (Duncan), the entity attempting to foreclose on the real estate lien, contends (1) Morningside and
NTFN were not entitled to void the interested director transaction because the transaction fell within the exceptions
enumerated in Tex. Bus. Corp. Act Ann. art. 2.35-1 (Vernon 2003); (2) there were genuine issues of material fact
under the holder in due course provisions of the Uniform Commercial Code; and (3) the trial court should not have
awarded Morningside and NTFN their attorney's fees. For the reasons that follow, we affirm the trial court's judgment.
08-1051
JACQUELYN ELMORE, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF RON ELMORE,
DECEASED, AND INTERVENOR, RONNIE ELMORE v. E. SULLIVAN ADVERTISING & DESIGN, INC., HEATH
CHANNING HEBERT AND ASPEN HEBERT; from Jefferson County; 11th district (11-07-00118-CV, ___ SW3d ___,
09-25-08)
Jacquelyn and Ronnie Elmore, the parents of Ron Elmore, filed a wrongful death action against Heath Channing
Hebert and his employer, E. Sullivan Advertising & Design, Inc. Hebert and his family were on their way to a Labor
Day Music Festival in Beaumont when Hebert missed a turn. Hebert was in the process of making a U-turn when
Ron Elmore’s motorcycle struck Hebert’s Toyota Sequoia. Ron subsequently died from his injuries. The trial court
granted E. Sullivan Advertising’s motion for summary judgment on the ground that Hebert was not acting within the
course and scope of his employment when the collision occurred.[1] We affirm.
Doctrine of Respondeat Superior
The essential elements of a negligence cause of action are (1) a legal duty owed by one person to another, (2) a
breach of that duty, and (3) damages proximately caused by the breach. Greater Houston Transp. Co. v. Phillips,
801 S.W.2d 523, 525 (Tex. 1990); Ginther v. Domino’s Pizza, Inc., 93 S.W.3d 300, 303 (Tex. App.-Houston [14th
Dist] 2002, pet. denied). The existence of a legal duty is the threshold requirement.
Generally, a person has no duty to control the conduct of another. Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309
(Tex. 1983). Under the theory of respondeat superior, however, an employer may be vicariously liable for the
negligent acts of its employee if the employee’s actions are within the course and scope of his employment. Mayes,
236 S.W.3d at 756. An employer is liable for the tort of its employee only when the tortious act falls within the scope
of the employee’s general authority in furtherance of the employer’s business and for the accomplishment of the
object for which the employee was hired. Id.; Minyard Food Stores, Inc. v. Goodman, 80 S.W.3d 573, 577 (Tex.
2002). Thus, the employee’s act (1) must be committed within the scope of the general authority of the employee
(2) in furtherance of the employer’s business and (3) for the accomplishment of the object or purpose for which the
employee was hired. Leadon v. Kimbrough Bros. Lumber Co., 484 S.W.2d 567, 569 (Tex. 1972); Robertson Tank
Lines, Inc. v. Van Cleave, 468 S.W.2d 354, 357 (Tex. 1971); Bell v. VPSI, Inc., 205 S.W.3d 706, 715 (Tex. App.-Fort
Worth 2006, no pet.).
E. Sullivan Advertising moved for summary judgment on the grounds that its evidence negated the duty and breach
of duty elements essential to the Elmores’ claims. In their depositions, Hebert and Eric Sullivan testified to facts that
demonstrated that Hebert was not acting within the course and scope of his employment at the time of the collision.
The trial court granted E. Sullivan Advertising’s motion.
Petitions for Review Denied on January 16, 2009
THE FOLLOWING PETITIONS FOR REVIEW ARE DENIED:
08-0824 THE DANESHJOU COMPANY, INC. v. JOE GOERGEN; from Travis County; 3rd district
(03-04-00730-CV, ___ SW3d ___, 08-08-08)(construction law dispute)
This appeal involves claims by a general contractor against its subcontractors. The Daneshjou Company, Inc.
("DCI") was retained to build a house for Sandra Bullock. DCI hired several subcontractors for the project, including
appellees Joe Goergen, CNA Construction, Inc., Modern Design and Construction, Inc., Loredo Truss Company,
Inc., Loma Excavation, Inc., G. P. Equipment Company, and W. Lee Brown & Sons, Inc. DCI and Bullock (together
with John Bullock) filed suits against each other, and DCI filed third-party claims against its subcontractors to recover
direct damages and for contribution and indemnity in the event it had to pay damages to the Bullocks. The appellee
subcontractors filed motions for summary judgment and/or to dismiss. The trial court granted the motions in part or
in whole, eventually disposing of all claims between DCI and these subcontractors. The trial court then severed the
claims involving these subcontractors from the other claims in the case, and proceeded to trial on the remaining
claims ("the Bullock trial"). DCI appeals the decisions in the cases involving these subcontractors.
DCI argues (1) that genuine issues of material fact exist, precluding summary judgment; (2) that severing the claims
against the subcontractors while admitting evidence of their allegedly deficient work prejudiced DCI at the Bullock
trial; and (3) that DCI should have been allowed to pursue its claims for contribution and indemnity against the
subcontractors after the Bullock trial.
We find no reversible error in the trial court rulings challenged by DCI on appeal.
08-0962 DARYL L. BONNIN v. WICHITA COUNTY AND WICHITA COUNTY COMMISSIONERS COURT; from Wichita
County; 2nd district (02-07-00156-CV, 268 SW3d 811, 10-02-08)
Upon consideration of appellee Daryl Lee Bonnin’s motion for rehearing, we deny the motion; however, we withdraw
our opinion and judgment of June 19, 2008, and substitute the following to make nondispositive clarifications.
This is a suit by a Wichita County jailer seeking to enforce all the terms of a petition related to the sheriff’s
department employees’ salaries after voters approved a ballot that included only portions of the items in the
petition. Appellants Wichita County and the Wichita County Commissioners Court appeal the trial court’s grant of
appellee’s motion for summary judgment and denial of appellants’ motion for summary judgment in appellee’s
declaratory judgment suit. In five issues, appellants argue that the trial court erred (1) by failing to make a predicate
finding that appellants abused their discretion before granting appellee relief, (2) by deciding that the entire petition,
including portions not included on the ballot, should be implemented, (3) by construing section 152.072 of the local
government code as authorizing a referendum on issues other than a one-year minimum salary for each position in
the department, (4) by imposing obligations on appellants that would violate constitutional prohibitions, and (5) by
awarding attorney’s fees to appellee. We reverse the trial court’s summary judgment in favor of appellee and render
summary judgment in favor of appellants; however, we remand the case to the trial court for a determination on
attorney’s fees.
08‑0963 IN THE ESTATE OF BOBBY WAYNE DILLARD, DECEASED; from Rusk County; 6th district
(06-08-00015-CV, ___ SW3d ___, 09-30-08) as amended
08-0978 PACIWEST, INC. v. WARNER ALAN PROPERTIES, LLC AND WARNER ALAN/WESTCLIFF, LTD.; from
Tarrant County; 2nd district (02-07-00443-CV, 266 SW3d 559, 09-11-08)
08-0981 KIRK WAYNE MCBRIDE, SR. v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE - CORRECTIONAL
INSTITUTIONS DIVISION, ET AL.; from Bee County; 13th district (13-07-00130-CV & 13-07-00305-CV, ___ SW3d
___, 08-28-08)(inmate litigation, prisoner suits, pro se litigants, plea to the jurisdiction)
Kirk Wayne McBride, Sr. an inmate confined in the Texas Department of Criminal Justice-Institutional Division
("TDCJ"), appeals from the dismissal of his pro se, in forma pauperis lawsuit against TDCJ, the University of Texas
Medical Branch ("UTMB"), and several members of the medical staff at the McConnell Unit of the TDCJ. The trial
court granted a summary judgment with regard to McBride's claims against the McConnell Unit medical staff, and a
plea to the jurisdiction in favor of TDCJ and UTMB. In two issues, McBride contends that the medical staff was not
entitled to summary judgment as a matter of law, and that the trial court erred in granting TDCJ's and UTMB's pleas
to the jurisdiction. We affirm.
08-1014 IN THE MATTER OF THE EXPUNCTION OF E.R.W.; from Pecos County; 8th district
(08-07-00067-CV, ___ SW3d ___, 10-23-08)
The right to expunction is a statutory privilege. In re Expunction of C.V., 214 S.W.3d 43, 44 (Tex.App.--El Paso 2006,
no pet.). The statute gives people the opportunity to have all records of an arrest expunged provided certain
requirements are met. Id.; Tex.Code Crim.Proc.Ann. art. 55.01 (Vernon 2006). All provisions in a statutory cause of
action are mandatory and exclusive and all conditions must be met before a person is entitled to expunction. In re C.
V., 214 S.W.3d at 44. A statutory expunction proceeding is civil rather than criminal in nature, and the petitioner
bears the burden of proving compliance with the statute. Id. Article 55.01 provides, in pertinent part:
(a) A person who has been placed under a custodial or noncustodial arrest for commission of either a felony or
misdemeanor is entitled to have all records and files relating to the arrest expunged if:
. . .
(2) each of the following conditions exist:
(A) an indictment or information charging the person with commission of a felony has not been presented against the
person for an offense arising out of the transaction for which the person was arrested or, if an indictment or
information charging the person with commission of a felony was presented, the indictment or information has been
dismissed or quashed, and:
(i) the limitations period expired before the date on which a petition for expunction was filed under Article 55.02; or
(ii) the court finds that the indictment or information was dismissed or quashed because the presentment had been
made because of mistake, false information, or other similar reason indicating absence of probable cause at the time
of the dismissal to believe the person committed the offense or because it was void;
(B) the person has been released and the charge, if any, has not resulted in a final conviction and is no longer
pending and there was no court ordered community supervision under Article 42.12 for any offense other than a
Class C misdemeanor; and
(C) the person has not been convicted of a felony in the five years preceding the date of the arrest.
Tex.Code Crim.Proc.Ann. art. 55.01(a)(2).
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