2009 TEXAS SUPREME COURT CASES
DECIDED WITH OPINIONS
DECIDED WITH OPINIONS
2009 Texas Supreme Court Opinions, Concurrences, & Dissents OPINIONS RELEASED June - Aug. 2009 See --> LIST OF Jan-June 2009 OPINIONS <-- by clicking this link Also see ---> 2010 Texas Supreme Court Opinions December 18, 2009 OPINIONS ISSUED BY THE TEXAS SUPREME COURT
contract, contract formation and validity, enforceability)(illusory promise at the time it was made, promise became enforceable upon performance) ED VANEGAS, JIMMY D. HALMAN, SAM ARMSTRONG, ALEX CARBAJAL, ROGER FARRINGTON, CURTIS HUFF, AND TITO BETANCUR v. AMERICAN ENERGY SERVICES, NIEWOEHNER PARTNERSHIP, L.P., RCH/HSJ/CCM/MCPI, L.P., AUTRY STEPHENS, JOHN CARNETT, BRACK BLACKWOOD, AND DENNIE MARTIN; from Midland County; 11th district (11-06-00118-CV, 224 SW3d 544, 05-10-07) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Green delivered the opinion of the Court. [pdf] View Electronic Briefs filed in VANEGAS v. AMERICAN ENERGY SERVICES Myrad Properties, Inc. v. Lasalle Bank NA, No. 08-0444 (Tex. Dec. 18, 2009)(Green) (whether a correction deed may convey two properties when an unambiguous deed mistakenly conveyed only one, correction deed found void, court renders judgment and orders rescission of the mistaken deed) MYRAD PROPERTIES, INC. v. LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR THE REGISTERED HOLDERS OF GMAC COMMERCIAL MORTGAGE SECURITES, INC., COMMERICIAL MORTGAGE PASS-THROUGH CERTIFICATES, SERIES 1997-C1, ROBIN GREEN, AND MELISSA COBB; from Bell County; 3rd district (03-07-00240-CV, 252 SW3d 605, 03-28-08) The Court reverses the court of appeals' judgment and renders judgment. Justice Green delivered the opinion of the Court. [pdf] View Electronic Briefs filed in MYRAD PROPERTIES, INC. v. LASALLE BANK NAT'L ASSOCIATION UT Southwestern Med. Ctr. at Dallas v. Gentillello, M.D., No. 08-0696 (Tex. Dec. 18, 2009)(per curiam) (Whistleblower case remanded in light of decision, holding in State v. Lueck) THE UNIVERSITY OF TEXAS SOUTHWESTERN MEDICAL CENTER AT DALLAS v. LARRY M. GENTILELLO, M.D.; from Dallas County; 5th district (05-07-00845-CV, 260 SW3d 221, 07-18-08) motion to dismiss dismissed as moot stay order issued October 2, 2008, lifted Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals’ judgment and remands the case to that court. Per Curiam Opinion [pdf] View Electronic Briefs filed in THE UNIV. OF TEX. SW. MED. CTR. AT DALLAS v. LARRY M. GENTILELLO, M.D. In Re Deere & Co., No. 08-1076 (Tex. Dec. 18, 2009)(per curiam)(orig. proceeding) (mandamus granted)(trial court’s order compelling production of documents found overly broad in temporal scope) IN RE DEERE & COMPANY D/B/A JOHN DEERE COMPANY AND JOHN DEERE CONSTRUCTION & FORESTRY COMPANY; from Johnson County; 10th district (10-08-00436-CV, ___ SW3d ___, 12- 22-08) stay order issued January 14, 2009, lifted Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion [pdf] View Electronic Briefs filed in IN RE DEERE & CO. D/B/A JOHN DEERE CO. and JOHN DEERE CONSTR. & FORRESTRY CO. D.R. Horton-Texas, Ltd. v. Markel International Ins. Co. No. 06-1018 (Tex. Dec. 11, 2009) (Wainwright) (CGL insurance coverage, duty to defend, duty to indemnify) D.R. HORTON-TEXAS, LTD. v. MARKEL INTERNATIONAL INSURANCE COMPANY, LTD.; from Harris County; 14th district (14-05-00486-CV, ___ SW3d ___, 10-26-06) The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court. Justice Dale Wainwright delivered the opinion of the Court [in pdf] (Justice Guzman not sitting) View Electronic Briefs in D.R. HORTON-TEXAS, LTD. V. MARKEL INT'L INS. CO. Metro Allied Ins. Agency v. Lin, No. 07-1032 (Tex. Dec, 11, 2009)(per curiam) (DTPA, negligence claim predicated on failure to procure insurance coverage, causation standard) (take-nothing JNOV against plaintiff reinstated) METRO ALLIED INSURANCE AGENCY, INC. AND C. MICHAEL MCGLOTHLIN v. SHIHCHE E. LIN, INDIVIDUALLY AND D/B/A APTUS COMPANY, AND SUNG-PING H. LIN; from Harris County; 1st district (01-05-00196-CV, ___ SW3d ___, 08-31-07) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion [in pdf] View Electronic Briefs in METRO ALLIED INS. AGENCY, INC. v. LIN Whirlpool Corp. v. Camacho, No. 08-0175 (Tex. Dec. 11, 2009)(Johnson) (product liability suit, design defect, laundry dryer fire, expert testimony)(judgment on jury verdict reversed) WHIRLPOOL CORPORATION v. MARGARITA CAMACHO, ET AL.; from Hidalgo County; 13th district (13-05-00361-CV, 251 SW3d 88, 01-17-08) The Court reverses the court of appeals' judgment and renders judgment. Justice Phil Johnson delivered the opinion of the Court [in pdf] (Justice Guzman not sitting) View Electronic Briefs in WHIRLPOOL CORPORATION v. CAMACHO ANOTHER CLASS-ACTION UNDONE BY THE TEXAS SUPREME COURT Exxon Mobil Corp. v. Gill, No. 07-0404 (Tex. Nov. 20, 2009)(per curiam)(class action suits)(trial court’s class certification order in suit brought by gas station dealers over pricing and rebates is vacated and the case is remanded to that court for further proceedings) EXXON MOBIL CORPORATION v. DAN GILL, ET AL.; from Nueces County; 13th district (13 06 00048 CV, ___ SW3d ___, 04 12 07) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. (Justice O'Neill and Justice Guzman not sitting) APPEAL OVER THIRD-PARTY LIABILITY IN TEXAS A&M BONFIRE COLLAPSE ENDS AS TEXAS SUPREME COURT UN-GRANTS PETITION FOR REVIEW AS MOOT AFTER SETTLEMENT Zachry Construction Corp v. Texas A&M University, No. 07-1050 (Tex. Nov. 20, 2009) (O'Neill) (A&M bonfire litigation aftermath, proportionate responsibility, responsible third party) (petition for review mooted by settlement and status change to "settling person") ZACHRY CONSTRUCTION CORPORATION, ET AL. v. TEXAS A&M UNIVERSITY; from Brazos County; 10th district (10 05 00139 CV, 236 SW3d 801, 11 14 07) 2 petitions, motion to dismiss denied The Court withdraws its order of May 15, 2009, granting the petitions for review, as the petitions were improvidently granted. The petitions for review are denied. Justice Harriet O'Neill delivered the opinion of the Court. (Justice Willett not sitting) SUBSTITUTED OPINION ISSUED IN BILLBOARD CONDEMNATION APPEAL State of Texas v. Central Expressway Sign Associates, No. 08-0061 (Tex. Nov. 20, 2009)(Subst. Op. by O'Neill) (condemnation, proper method for determining market value, admissibility of expert testimony, methods to appraise market value of condemned property)(harmful error analysis of complaints about admission or exclusion of evidence on appeal) THE STATE OF TEXAS v. CENTRAL EXPRESSWAY SIGN ASSOCIATES, ET AL.; from Dallas County; 5th district (05 06 00003 CV, 238 SW3d 800, 08 31 07) motion for rehearing denied The Court's opinion of June 26, 2009 is withdrawn and the opinion of this date is issued. The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice O'Neill delivered the opinion of the Court. (Justice Guzman not sitting) ANOTHER TORT SUIT AGAINST A GOVERNMENTAL ENTITY BITES THE DUST IN THE HIGH COURT City of Waco v. Kirwan, No. 08-0121 (Tex. Nov. 20, 2009)(Green)(premises liability, fatal fall from cliff, recreational use statute) CITY OF WACO v. DEBRA KIRWAN, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF BRAD MCGEHEE, DECEASED; from McLennan County; 10th district (10 07 00123 CV, 249 SW3d 544, 01 09 08) The Court reverses the court of appeals' judgment and dismisses the case. Justice Green delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Medina, Justice Johnson, Justice Willett, and Justice Guzman joined as to Parts I–V, and in which Chief Justice Jefferson joined as to Part IV. JURY'S DENIAL OF ALL ATTORNEY'S FEES REVERSED AND CASE REMANDED FOR NEW TRIAL ON FEES Midland Western Building LLC v. First Service Air Conditioning Contractors, Inc., No. 08-0504 (Tex. Nov. 20, 2009)(per curiam) (zero attorney's fees awarded by jury not supported by the evidence, attorney fee testimony, segregation of fees incurred against different parties)(new trial on attorney's fees ordered) MIDLAND WESTERN BUILDING L.L.C. v. FIRST SERVICE AIR CONDITIONING CONTRACTORS, INC.; from Midland County; 11th district (11 06 00222 CV, ___ SW3d ___, 03 13 08) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. NON-SIGNATORIES COMPELLED TO ARBITRATE WRONGFUL DEATH CLAIMS BASED ON BENEFICIARY STATUS In Re Golden Peanut Co.,LLC, No. 09-0122 (Tex. Nov. 20, 2009)(per curiam)(mandamus compelling arbitration granted) (arbitration and nonsignatories, wrongful death plaintiffs bound by arb agreement signed by worker killed on the job as derivative claimants and must arbitrate claim against employer, pre-injury waivers, forum selection vs. waiver of substantive rights) IN RE GOLDEN PEANUT COMPANY, LLC; from Gaines County; 11th district (11 08 00215 CV, 269 SW3d 302, 11 13 08) Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. ORDERS ON MOTIONS FOR REHEARING DISSENT FROM DENIAL OF PETITION FOR REVIEW Watson v. Watkins, No. 09-0166 (Tex. Nov. 20, 2009)(Willet)(opinion dissenting from denial of review) (would accept case presenting question whether peace officers are entitled to official immunity for acts performed while serving as private security guards will off-duty). SHANE WATSON v. SHIRLEY NEWMAN AND JILL WATKINS; from Potter County; 7th district (07 08 00203 CV, ___ SW3d ___, 11 21 08) Justice Willett, joined by Justice Hecht, delivered an opinion dissenting from the denial. Akin, Gump, Strauss, Hauer & Feld, LLP v. National Development and Research Corp. No. 07-0818 (Tex. Oct. 30, 2009)(Johnson)(legal malpractice, attorney's caused by malpractice as recoverable damages, the American Rule)(proper amount of attorney's fees damages to be determined upon remand) AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. v. NATIONAL DEVELOPMENT AND RESEARCH CORPORATION; from Dallas County; 5th district (05-06-01024-CV, 232 SW3d 883, 08-29-07) 2 petitions The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case in part to the court of appeals. Justice Johnson delivered the opinion of the Court. Aquaplex, Inc v. Rancho Law Valencia, Inc., No. 08-0280 (Tex. Oct 30, 2009)(per curiam) (fraud damages, proving amount of damages, remittiture by court of appeals or new trial) AQUAPLEX, INC. AND JAMES EDWARD JONES, JR. v. RANCHO LA VALENCIA, INC. AND CHARLES R. "RANDY" TURNER; from Travis County; 7th district (07-06-00157-CV, 253 SW3d 728, 11-02-07) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court affirms in part and reverses in part the court of appeals' judgment and remands the case to that court. City of Houston v. Trail Enterprises, Inc. No. 08-0413 (Tex. Oct. 30, 2009)(per curiam) (ripeness doctrine, inverse condemnation regulatory takings claim, zoning)(remanded to trial court) CITY OF HOUSTON, TEXAS v. TRAIL ENTERPRISES, INC. D/B/A WILSON OIL COMPANY, ET AL.; from Harris County; 10th district (10-05-00382-CV, 255 SW3d 105, 04-09-08) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals’ judgment and remands the case to the trial court. Chrysler Ins. Co., v. Greenspoint Dodge of Houston, Inc., No. 08-0780 (Tex. Oct. 30, 2009)(per curiam) (insurance coverage dispute, known-falsity exclusion to defamation liability coverage based on knowledge of vice-principals; knowledge imputed on insured, thus exclusion applies, warranting take-nothing judgment) CHRYSLER INSURANCE COMPANY, FORMERLY KNOWN AS DAIMLERCHRYSLER INSURANCE COMPANY v. GREENSPOINT DODGE OF HOUSTON, INC.; from Harris County; 1st district (01-05-01115-CV, 265 SW3d 52, 04-10-08) 2 petitions motion to dismiss the cross-petition on behalf of Jack Apple, Jr. granted Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court affirms in part and reverses in part the court of appeals' judgment and renders judgment. (Justice Guzman not sitting) Insurance Company of the State of Pennsylvania v. Lejeune, No. 08-0829 (Tex. Oct. 30, 2009)(per curiam) (restricted appeal of default judgment, error on the face of the record, time of service not noted on return of citation) INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA v. EDWARD LEJEUNE; from Red River County; 6th district (06-07-00142-CV, 261 SW3d 852, 08-20-08) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Missouri Pacific RR Co. v. Limmer, . 06-0023 (Tex. Oct. 23, 2009)(Hecht) (judgment on jury verdict in wrongful death case arising from train-truck collision reversed based on federal preemption) MISSOURI PACIFIC RAILROAD COMPANY D/B/A UNION PACIFIC RAILROAD COMPANY v. PATRICIA LIMMER, BILLYE JOYCE SMITH, AND BOBBY JEAN NOTHNAGEL; from Harris County; 14th district (14-02-00688-CV, 180 SW3d 803, 11-29-05) 2 petitions The Court reverses the court of appeals' judgment and renders judgment. Justice Hecht delivered the opinion of the Court in which Chief Justice Jefferson, Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined. (Justice O'Neill and Justice Guzman not sitting)(Newly appointed Justice Eva Guzman is the author of the opinion in the court of appeals) Miga v. Jensen, No. 07-0123 (Tex. Oct. 23, 2009)(Jefferson) (collection of paid judgment upon reversal of the judgment on appeal) (superseded vs. paid judgment, accrual of post-judgment interest, voluntary payment rule, reversal of judgment restitution, unjust enrichment) DENNIS L. MIGA v. RONALD L. JENSEN; from Tarrant County; 2nd district (02-05-00277-CV, ___ SW3d ___, 11-30-06) The Court affirms the court of appeals' judgment. Chief Justice Jefferson delivered the opinion of the Court. Smith v. Patrick W. Y. Tam Trust, No. 07-0970 (Tex. Oct. 23, 2009)(Jefferson) (reasonableness of attorneys fees when recovery of damages is less than what was sought) LAURI SMITH AND HOWARD SMITH v. PATRICK W.Y. TAM TRUST; from Collin County; 5th district (05-06-00356-CV, 235 SW3d 819, 07-31-07) The Court reverses in part the court of appeals' judgment and remands the case to the trial court. Chief Justice Jefferson delivered the opinion of the Court. Unifund CCR Partners v. Villa, No. 08-1026 (Tex. Oct. 23, 2009)(per curiam) (sanctions for filing suit to collect debt discharged in bankruptcy reversed) UNIFUND CCR PARTNERS v. JAVIER VILLA; from Webb County; 4th district (04-07-00465-CV, 273 SW3d 385, 09-17-08) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment. Per Curiam Opinion In Re Polymerica, LLC, No. 08-1064 (Tex. Oct. 23, 2009)(per curiam) (arbitration mandamus granted) IN RE POLYMERICA, LLC D/B/A GLOBAL ENTERPRISES, INC.; from El Paso County; 8th district (08-08-00070-CV, 271 SW3d 442, 11-25-08) stay order of February 24, 2009 lifted Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion OPINION ON DENIAL OF MOTION FOR REHEARING In Re Houston Pipe Line Co, LP., No. 08-0800 (Tex. Oct. 23, 2009)(per curiam)(opinion on motion for rehearing by real party in interest)(clarification on (non) availability of discovery prior to arbitration) IN RE HOUSTON PIPE LINE COMPANY, L.P., ET AL.; from Victoria County; 13th district (13-07-00299-CV & 13-07-00362-CV, 269 SW3d 90, 08-26-08) Supplemental Per Curiam Opinion In Re Union Pacific Railroad Co. No. 08-0740 (Tex. Sep. 25,2009)(per curiam) (discovery mandamus granted to protect trade secrets, privilege, pricing information) IN RE UNION PACIFIC RAILROAD COMPANY; from Bexar County; 4th district (04-08-00388-CV, ___ SW3d ___, 08-20-08) Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion View Electronic Briefs | Oral Argument N/A City of Pasadena, TX v. Smith, No. 06-0948 (Tex. Aug. 28, 2009)(Hecht) (disciplinary appeal, authority of hearing examiner, police officer, UDJA and jurisdictional issues) CITY OF PASADENA, TEXAS v. RICHARD SMITH; from Harris County; 1st district (01-05-01157-CV, 263 SW3d 80, 09-14-06) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Hecht delivered the opinion of the Court. Dynegy Midstream Services, LP v. Versado Gas Processors, LLC, No. 07-0043 (Tex. Aug. 28, 2009) (Willett) (oil and gas law litigation, gas lost in transit, construction of contract re: sale, delivery) DYNEGY MIDSTREAM SERVICES, LIMITED PARTNERSHIP AND VERSADO GAS PROCESSORS, LLC v. APACHE CORPORATION; from Harris County; 14th district (14-05-00010-CV, 214 SW3d 554, 12-07-06) 2 petitions The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court. Justice Willett delivered the opinion of the Court. TDHHS v. Okoli, No. 07-0642 (Tex. Aug. 28, 2009)(per curiam) (WBA case decided per Lueck, interlocutory appeal of denial of plea to the jurisdiction) TEXAS DEPARTMENT OF HEALTH AND HUMAN SERVICES v. OLIVER OKOLI; from Harris County; 1st district (01-07-00103-CV, 263 SW3d 275, 06-28-07) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion Marks v. St. Luke's Episcopal Hospital, No. 07-0783 (Tex. Aug. 28, 2009)(Medina) (injury caused to patient by defective hospital bed, what type of PI claim? medical health care liability or premises liability?) IRVING W. MARKS v. ST. LUKE'S EPISCOPAL HOSPITAL; from Harris County; 1st district (01-04-00228-CV, 229 SW3d 396, 05-03-07) The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court. Justice Medina delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Brister, and Justice Green joined. [pdf] Chief Justice Jefferson delivered a concurring opinion. [pdf] Justice Hecht delivered a dissenting opinion. [pdf] Justice Wainwright delivered a dissenting opinion. [pdf] Justice Johnson delivered a dissenting opinion, in which Justice Hecht, Justice Wainwright, and Justice Willett joined. Intercontinental Group Partnership v. KB Home Lone Star LP., No. 07-0815 (Aug. 28, 2009)(Willett) (prevailing party for attorney fee purposes) INTERCONTINENTAL GROUP PARTNERSHIP v. KB HOME LONE STAR L.P.; from Hidalgo County; 13th district (13-06-00617-CV, ___ SW3d ___, 08-23-07) The Court reverses the court of appeals' judgment and renders judgment. Justice Willett delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Green, and Justice Johnson joined. [pdf] Justice Brister delivered a dissenting opinion, in which Justice O'Neill, Justice Wainwright, and Justice Medina joined. TxDOT v. Garcia, No. 07-1030 (Tex. Aug. 28, 2009)(per curiam) (Whistleblower Act claim, allegation of report of violation of law as basis of claim jurisdictional) TEXAS DEPARTMENT OF TRANSPORTATION v. SERGIO GARCIA; from Cameron County; 13th district (13-07-00004-CV, 243 SW3d 759, 11-01-07) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion State Office of Risk Management v. Lawton, No. 08-0363 (Tex. Aug. 28, 2009)(Jefferson) (workers comp claim; deadline for contesting compensability) STATE OFFICE OF RISK MANAGEMENT v. MARY LAWTON; from Brazos County; 10th district (10-07-00072-CV, 256 SW3d 436, 04-16-08) The Court reverses the court of appeals' judgment and remands the case to the trial court. Chief Justice Jefferson delivered the opinion of the Court. MBM Financial Corporation v. The Woodlands Operating Co., No. 08-0390 (Tex. Aug. 28, 2009) (Brister)(what constitutes nominal damages?, recovery of damages as prerequisite for recovery of attorneys' fees)(the "American Rule") MBM FINANCIAL CORPORATION, ET AL. v. THE WOODLANDS OPERATING COMPANY, L.P.; from Montgomery County; 9th district (09-07-00060-CV, 251 SW3d 174, 04-10-08) 2 petitions The Court reverses the court of appeals' judgment and renders judgment. Justice Brister delivered the opinion of the Court. (Justice O'Neill not sitting) In Re Liberty Mutual Fire Ins. Co., No. 08-0742 (Tex. Aug. 28, 2009)(per curiam) (worker's comp, exhaustion of administrative remedies, preauthorization of medical treatment) IN RE LIBERTY MUTUAL FIRE INSURANCE COMPANY; from Nueces County; 13th district (13-08-00129-CV, ___ SW3d ___, 08-07-08) Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion In Re Greater Houston Orthopaedic Specialists, Inc. No. 08-0820 (Tex. Aug. 28, 2009)(per curiam) (effect of misnomer, nonsuit and counterclaim) IN RE GREATER HOUSTON ORTHOPAEDIC SPECIALISTS, INC.; from Cameron County; 3th district (13-08-00366-CV, ___ SW3d ___, 09-11-08) stay order issued October 17, 2008, lifted Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion In Re Weekley Homes, LP. No. 08-0836 (Tex. Aug. 28, 2009)(O'Neill) (discovery mandamus, electronic discovery, order to facilitate recovery of deleted emails from computer) IN RE WEEKLEY HOMES, L.P.; from Dallas County; 5th district (05-08-01249-CV, ___ SW3d ___, 09-24-08) The Court conditionally grants the petition for writ of mandamus. Justice O'Neill delivered the opinion of the Court. Bennett v McDaniel, No. 08-0618 (Tex. 2009)(failure to prove damages in post-answer default hearing requires remand to the trial court, rather than reversal and rendition of take-nothing judgment). BENNY BENNETT AND WIFE, MARY BENNETT v. RICHARD MCDANIEL, INDIVIDUALLY AND D/B/A RICHARD MCDANIEL, INC., D/B/A B.R. ROOFING, A/K/A B&R ROOFING; from Wheeler County; 7th district (07-06-00250-CV, ___ SW3d ___, 04-30-08) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals’ judgment and remands the case to the trial court. Per Curiam Opinion SUPREME COURT ORDERS TRIAL COURTS TO EXPLAIN WHY THEY GRANTED NEW TRIALS: "In the Interest of Justice," WILL NO LONGER DO In Re Columbia Medical Center of Las Colinas, No. 06-0416 (Tex. Jul. 3, 2009)(Johnson) (mandamus granted) (jury trial, reasons for trial court judge disregarding jury verdict and granting new trial required) (mandamus granted to order trial court to elaborate on reasons for setting aside jury verdict and granting new trial)(also see --> JNOV) IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, SUBSIDIARY, L.P. D/B/A LAS COLINAS MEDICAL CENTER, ANTONETTE CONNER, AND ANNA MATHEW; from Dallas County; 5th district (05-06-00611-CV, ___ SW3d ___, 05-12-06 Opinion of the Dallas Court of Appeals) as reinstated; stay order issued August 29, 2008, lifted The Court conditionally grants in part and denies in part the petition for writ of mandamus. Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice Green joined. AFTER MANDAMUS PETITION-ABATEMENT PING-PONG INVOLVING THREE DIFFERENT TRIAL COURT JUDGES, SUPREMES ORDER THE LAST ONE TO SERVE UP A VALID EXPLANATION WHY NEW TRIAL WAS GRANTED. In Re Baylor Medical Center at Garland, No. 06-0491 (Tex. Jul 3, 2009) (mandamus granted) (Johnson) (trial judge granted new trial and then resigned, mandamus abatement, current judge ordered to provide reason for granting new trial) IN RE BAYLOR MEDICAL CENTER AT GARLAND; from Dallas County; 5th district (05-05-01663-CV, ___ SW3d ___, 01-04-06 Opinion of the Dallas Court below) as reinstated, stay order issued August 29, 2008, lifted The Court conditionally grants in part and denies in part the petition for writ of mandamus. Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice Green joined. NO PARTNERSHIP FORMED, AND THUS NONE EXISTED, UNDER TEXAS REVISED PARTNERSHIP ACT Ingram v. Deere, No. 06-0815 (Tex. Jul 3, 2009)(Wainwright)(dispute over existence of partnership under TRPA, partnership criteria/factors, fiduciary duty) (existence of partnership not proven, take- nothing judgment reinstated) JESSE C. INGRAM, PH.D. AND BEHAVIORAL PSYCHOLOGY CLINIC, P.C. v. LOUIS DEERE, D.O. AND HILLVALE MEDICAL GROUP ASSOCIATION D/B/A HILLVALE MEDICAL ASSOCIATION; from Dallas County; 5th district (05-05-00063-CV, 198 SW3d 96, 04-27-06 Opinion of the Dallas court of Appeals) 2 petitions The Court reverses the court of appeals' judgment and reinstates the trial court's judgment. Justice Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Medina, Justice Green, and Justice Willett joined, in which Justice O'Neill and Justice Brister joined except as to part II.D.5.a, and in which Justice Johnson joined except as to part II.D.2. [pdf] Justice Johnson delivered a concurring opinion. [pdf] View Electronic Briefs in Tex. 2009 No. 06-0815 JESSE C. INGRAM, PH.D. v. LOUIS DEERE, D.O. In this case, we review a court of appeals judgment reinstating a jury verdict finding that Louis Deere, D.O. and Jesse C. Ingram, Ph.D. formed a partnership pursuant to the Texas Revised Partnership Act (TRPA). TRPA lists five factors to be considered in determining whether a partnership has been formed. This determination should be made by examining the totality of the circumstances in each case, with no single factor being either necessary or sufficient to prove the existence of a partnership. Here, the evidence is legally insufficient to establish that a partnership existed between Ingram and Deere. Because the evidence of the formation of a partnership is legally insufficient, we do not address the issue raised in Ingram’s cross-petition challenging the court of appeals’ decision that Ingram owed Deere a fiduciary duty. Accordingly, we reinstate the trial court’s take-nothing judgment in favor of Ingram and reverse the court of appeals’ judgment. Whether a partnership exists must be determined by an examination of the totality of the circumstances. Evidence of none of the factors under the Texas Revised Partnership Act will preclude the recognition of a partnership, and even conclusive evidence of only one factor will also normally be insufficient to establish the existence of a partnership under TRPA. However, conclusive evidence of all five factors establishes a partnership as a matter of law. In this case, Deere has not provided legally sufficient evidence of any of the five TRPA factors to prove the existence of a partnership. Accordingly, we reverse the court of appeals’ judgment and reinstate the trial court’s take-nothing judgment. APPRAISAL PROVISION IN INSURANCE CONTRACT ENFORCED State Farm Lloyds v. Johnson, No. 06-1071 (Tex. Jul. 3, 2009)(Brister) (INSURANCE LAW: appraisal clause in insurance context, hail damages to home of insured home owner) STATE FARM LLOYDS v. BECKY ANN JOHNSON; from Collin County; 5th district (05-05-00640-CV, 204 SW3d 897, 10-27-06 Opinion of the Dallas Court of Appeals) The Court affirms the court of appeals' judgment. Justice Brister delivered the opinion of the Court. [pdf] SUPREMES AGAIN GRANT REVIEW TO VINDICATE HEALTH CARE DEFENDANT'S CLAIM TO SANCTIONS AFTER ABORTIVE MED-MAL SUIT - INTERLOCUTORY APPEAL CONCERNING EXPERT REPORT OBJECTIONS WAS NOT REQUIRED AS A PRELUDE. Hernandez, MD v. Ebrom, No. 07-0240 (Tex. Jul 3, 2009)(Johnson) (HCLC, does med-mal defendant forfeit right to seek sanctions by failing to pursue by interlocutory appeal challenge to expert report where objection was overruled by the trial court?) MIGUEL HERNANDEZ, M.D. v. JULIOUS EBROM AND RICHARD HUNNICUTT; from Hidalgo County; 13th district (13-06-00053 CV, ___ SW3d ___, 02-08-07 Opinion of the court below) opposed motion for leave to file post-submission brief granted The Court reverses the court of appeals' judgment and remands the case to that court. Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, Justice Green, and Justice Willett joined. [pdf] Chief Justice Jefferson delivered a dissenting opinion, in which Justice O'Neill and Justice Medina joined. [pdf] View Electronic Briefs in Tex. 2009 No. 07-0240 MIGUEL HERNANDEZ, M.D. v. EBROM A defendant in a health care liability claim may appeal from the interlocutory order denying its objection to the plaintiff’s expert report. The statutes authorizing the defendant’s objection and appeal do not impose consequences if an interlocutory appeal is not pursued. In this case, we consider whether a defendant health care provider’s failure to challenge the adequacy of an expert report by interlocutory appeal precludes a challenge of the report by appeal from a final judgment when the plaintiff later nonsuits before trial. The court of appeals held it does; we hold it does not. We reverse and remand to the court of appeals. JURISPRUDENTIAL CURIO: FIRST THE AGENCY SUES, THEN IT CLAIMS THE COURT DOES NOT (YET?) HAVE JURISDICTION. ERS of Texas v. Duenez, No. 07-0410 (Tex. Jul 3, 2009)(petition dismissed)(Brister) (administrative law, agency exclusive jurisdiction doctrine held not to apply to subrogation claim, which involves collection on a claim rather than payment thereof)(DWOJ) EMPLOYEES RETIREMENT SYSTEM OF TEXAS v. XAVIER DUENEZ AND IRENE DUENEZ; from Calhoun County; 13th district (13-05-00729 CV, ___ SW3d ___, 04-05-07 Opinion below) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court dismisses the petition for want of jurisdiction. Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Medina, Justice Green, and Justice Willett joined. [pdf] Justice Hecht delivered a dissenting opinion (arguing the court of appeals should have dismissed the appeal for want of a justiciable issue) Justice Wainwright delivered a dissenting opinion (favoring application of exclusive jurisdiction doctrine to the subrogation dispute), in which Justice Johnson joined. View Electronic Briefs in Tex. 2009 No. 07-410 EMPLOYEES RETIREMENT SYSTEM OF TEXAS v. DUENEZ SUPREMES DENY MANDAMUS RELIEF IN DISPUTE OVER LEGAL CAPACITY ISSUE WITH RESPECT TO ARBITRATION AGREEMENT AND ISSUE NO LESS THAN FOUR (4) SEPARATE OPINIONS. In re Morgan Stanley & Co, Inc. No. 07-0665 (Tex. Jul. 3, 2009)(Medina) (arbitration vs. litigation: legal capacity of party to arbitration agreement, does the court or the arbitrator decide the issue?) IN RE MORGAN STANLEY & CO. INC., SUCCESSOR TO MORGAN STANLEY DW, INC.; from Dallas County; 5th district (05-07-00590-CV, ___ SW3d ___, 07-17-07 Opinion by the Dallas CoA) The petition for writ of mandamus is denied. Justice Medina delivered the opinion of the Court [pdf], in which Chief Justice Jefferson, Justice Wainwright, Justice Green, Justice Johnson, and Justice Willett joined. Justice Brister delivered a concurring opinion. Justice Willett delivered a concurring opinion. Justice Hecht delivered a dissenting opinion. (Justice O'Neill not sitting) DEFAULT JUDGMENT IMPROPER WHERE COUNSEL'S NO-SHOW FOR TRIAL WAS EXCUSABLE DUE TO CONFLICTING ENGAGEMENT IN ANOTHER COURT Dolgencorp of Texas, Inc. v. Lerma, No. 08-0032 (Tex. Jul. 3, 2009)(per curiam) (motion for new trial after post-answer default judgment due to defense counsel's scheduling conflict should have been granted under Craddock test criteria)(DEFAULT JUDGMENTS: failure to appear for trial) DOLGENCORP OF TEXAS, INC., D/B/A DOLLAR GENERAL STORE v. MARIA ISABEL LERMA, INDIVIDUALLY, ET AL.; from Cameron County; 13th district (13-03-00314-CV, 241 SW3d 584, 08-23-07 Opinion by the Thirteenth Court of Appeals below) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion SUPREME COURT AGAIN STEPS IN TO ASSURE DEFENDANT IN UNSUCCESSFUL MED-MAL SUIT GETS TO COLLECT ATTORNEY'S FEES AS A SANCTION Aviles, MD v. Aguirre, No. 08-0240 (Tex. Jul 3, 2009)(per curiam) (HCLC sanctions under former med-mal law to be awarded on remand) WILFREDO AVILES, M.D., AND WILFREDO AVILES, M.D., P.A. v. ALBERT AGUIRRE, ET AL.; from Hidalgo County; 13th district (13-06-00495-CV, ___ SW3d ___, 02-14-08 Opinion below) (Dissenting opinion by Rose Vela) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion [pdf] EXCLUSIVE REMEDY? - NO (IT'S NOT A WORKER'S COMP CASE) Dealers Electrical Supply Co. v. Scoggins Construction Co, Inc., No. 08-0272 (Jul. 3, 2009)(O'Neill) (construction law: bond requirement for workers and materialmen, supplies of materials, exclusive remedy, Texas Construction Trust Fund Act) DEALERS ELECTRICAL SUPPLY CO. v. SCOGGINS CONSTRUCTION COMPANY, INC. AND BILL R. SCOGGINS; from Hidalgo County; 13th district (13-06-00368-CV, ___ SW3d ___, 12-20-07 Opinion by the Thirteenth Court of Appeals) The Court reverses the court of appeals' judgment and remands the case to that court. Justice O'Neill delivered the opinion of the Court. [pdf - 16 pgs.] JUDICIAL ESTOPPEL BASED ON OMISSION OF LAWSUIT AS ASSET IN BANKRUPTCY PROCEEDING HELD NOT TO APPLY Ferguson v. Building Materials Corp. of America, No. 08-0589 (Tex. Jul. 3, 2009)(per curiam) (judicial estoppel based on failure to list lawsuit as assent in bankruptcy proceeding does not apply here; summary judgment granted on the basis of judicial estoppel reversed) JASON FERGUSON AND BOBBIE FERGUSON v. BUILDING MATERIALS CORPORATION OF AMERICA, CPC LOGISTICS, INC., AND ROBERT JAMES MADDOX; from Dallas County; 8th district (08-07-00051-CV, 276 SW3d 45, 06-12-08 Opinion of the Eight Court of Appeals below) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion [pdf] Electronic Briefs in Tex. 2009 No. 08-0589 FERGUSON v. BUILDING MATERIALS CORP. OF AM. ANOTHER NEW TRIAL - ANOTHER MANDAMUS TO GET THE TRIAL COURT TO JUSTIFY THE ACT In Re E.I. Du Pont de Nemours and Co., No. 08-0625 (Tex. Jul. 3, 2009)(Johnson) (mandamus granted: trial court's grant of new trial following jury verdict requires explanation; trial court ordered to provide specific reason why new trial was granted despite jury verdict for the defense) (asbestos suit) IN RE E.I. DU PONT DE NEMOURS AND COMPANY; from Jefferson County; 9th district (09-08-00318-CV, ___ SW3d ___, 07-24-08 Opinion of the Ninth Court of Appeals) Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants in part and denies in part the petition for writ of mandamus. Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. [pdf - 3 pages] Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice Green joined. [pdf - 1 page] COURT-BLESSED DISCOVERY PRIOR TO ARBITRATION PROMPTS HIGH COURT TO INTERVENE TO CURB THE EXCESS - SUPREME COURT SAYS TRIAL COURT SHOULD HAVE RULED ON THE MOTION TO COMPEL INSTEAD - DISCOVERY ORDERS VACATED In Re Houston Pipeline Co., LP, No. 08-0800 (Tex. 2009)(per curiam) (discovery orders and motion to compel arbitration)(interaction of federal FAA and state procedural law and TAA) (trial court ordered to rule on motion to compel arbitration, and to lift prearbitration discovery orders found excessively broad). IN RE HOUSTON PIPE LINE COMPANY, L.P., ET AL.; from Victoria County; 13th district (13-07-00299-CV & 13-07-00362-CV, 269 SW3d 90, 08-26-08 Opinion of the Thirteenth Court of Appeals) stay order issued October 17, 2008, lifted Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion [pdf - 4 pages] COURT FINDS VAGUENESS AND SPLITS ON EFFECTIVE DATE OF APPELLATE DECISION Edwards Aquifer Authority v. Chemical Lime, Ltd., (Tex. 2009) No. 06-0911 (Tex. Jun. 26, 2009) (Hecht)(administrative law, water law, attorney's fees under the UDJA aka DJA) EDWARDS AQUIFER AUTHORITY, ET AL. v. CHEMICAL LIME, LTD.; from Comal County; 3rd district (03-04-00379-CV, 212 SW3d 683, 09-14-06)(op. on 2nd motion for rehearing in the court below) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Hecht delivered the opinion of the Court, [pdf 22 pgs], in which Chief Justice Jefferson, Justice O’Neill, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, Justice Johnson and Justice Willett joined. [pdf]Justice Brister delivered a concurring opinion. [pdf] Justice Willett delivered a concurring opinion. [pdf] View Electronic Briefs in Edwards Aquifer Authority v. Chemical Lime, Ltd. (Tex. 2009) ANOTHER WHISTLEBLOWER BITES THE DUST AT THE SUPREME COURT State of Texas and TxDoT v. Lueck, No. 06-1034 (Tex. Jun. 26, 2009)(Green)(Whistleblower Act claim dismissed)(allegation of regulatory noncompliance insufficient, report not to proper law- enforcement authority, dismissal on the pleadings by plea to the jurisdiction approved; no opportunity to amend) THE STATE OF TEXAS AND THE TEXAS DEPARTMENT OF TRANSPORTATION v. GEORGE LUECK; from Travis County; 3rd district (03-05-00510-CV, 212 SW3d 630, 08-16-06) motion to dismiss denied The Court reverses the court of appeals' judgment and dismisses the case for lack of jurisdiction. Justice Green delivered the opinion of the Court. [pdf 16 pgs.] View Electronic Briefs in State of Texas and TxDoT v. Lueck (Tex 2009) MOTOR VEHICLE ACCIDENTS: DOES THE STATUTE OF LIMITATIONS RUN WHILE DRIVER WHO CAUSED WRECK IS OUT OF STATE? Ashley v. Hawkins, No. 07-0572 (Tex. Jun. 26, 2009)(Green)(statute of limitations, no tolling when car wreck defendant is out of state, but subject to being served there) (due diligence in securing promt service of citation on defendant) GAIL ASHLEY v. DORIS D. HAWKINS; from Montgomery County; 9th district (09-06-00359-CV, ___ SW3d ___, [opinion in the Beaumont court of appeals] 06-07-07) The Court reverses the court of appeals' judgment and reinstates the trial court's judgment. Justice Green delivered the opinion of the Court. [pdf 10 pgs.] View Electronic Briefs in ASHLEY v. HAWKINS (Tex. 2009) PROBATE: UNDER WHAT CIRCUMSTANCES CAN THE EXECUTOR SUE THE ATTORNEY OF THE DECEASED? Smith v. O'Donnell, No. 07-0697 (Tex. Jun. 26, 2009)(O'Neill)(PROBATE LAW: legal malpractice suit by executor of estate against decedent's attorney, non-estate planning) PAUL H. SMITH, ET AL. v. THOMAS O'DONNELL, EXECUTOR OF THE ESTATE OF CORWIN DENNEY; from Bexar County; 4th district (04-04-00108-CV, 234 SW3d 135, 07-25-07) 2 petitions The Court affirms the court of appeals' judgment. Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Brister, Justice Medina, and Justice Johnson joined. [pdf - 11 pgs] Justice Willett delivered a dissenting opinion, in which Justice Wainwright joined. [pdf] (Justice Hecht and Justice Green not sitting) View Electronic Briefs in Smith v. O'Donnell (Tex. 2009) PROBATE: RIGHT TO SURVIVORSHIP WITH RESPECT TO ASSETS/ACCOUNTS BETWEEN SPOUSES Holmes v. Beatty, No. 07-0784 (Tex. Jun. 26, 2009)(Jefferson)(probate law, right to survivorship accounts, community property survivorship agreement) HARRY HOLMES, II, INDEPENDENT EXECUTOR OF THE ESTATE OF THOMAS J. HOLMES, SR., DECEASED AND AS TRUSTEE OF ANY TRUST NAMED AS A LEGATEE IN THE WILL OF THOMAS J. HOLMES, SR., DECEASED v. DOUGLAS G. BEATTY, INDEPENDENT EXECUTOR OF THE ESTATE OF KATHRYN V. HOLMES, DECEASED; from Harris County; 14th district (14-03-00663- CV, 233 SW3d 475, 08-14-07) | Electronic briefs in Holmes v. Beatty No. 07-0784 (Tex. 2009) consolidated with Holmes v. Beatty (htm), No. 07-0785 (Tex. Jun. 26, 2009)(Jefferson)(nontestamentary transfer of assets between spouses, right to survivorship accounts) HARRY HOLMES, II, INDEPENDENT EXECUTOR OF THE ESTATE OF THOMAS J. HOLMES, SR., DECEASED AND AS TRUSTEE OF ANY TRUST NAMED AS A LEGATEE IN THE WILL OF THOMAS J. HOLMES, SR., DECEASED v. DOUGLAS G. BEATTY, INDEPENDENT EXECUTOR OF THE ESTATE OF KATHRYN V. HOLMES, DECEASED; from Harris County; 14th district (14-05-00474- CV, 233 SW3d 494, 08-14-07) 2 petitions The Court reverses and renders in part and affirms in part the court of appeals' judgment. Chief Justice Jefferson delivered the opinion of the Court. [pdf 19 pgs] View Electronic Briefs for 07-0785 DIFFERENCE BETWEEN STATUTE OF REPOSE AND LIMITATIONS EXPLAINED - WORKS FOR DEFENDANT: Galbraith Engineering Consultants, Inc. v. Pochucha, No. 07-1051 (Tex. Jun. 26, 2009)(Medina) (claim based on construction defect causing water damage barred by statute of repose)(statute of repose vs. statute of limitations) GALBRAITH ENGINEERING CONSULTANTS, INC. v. SAM POCHUCHA AND JEAN POCHUCHA; from Bexar County; 4th district (04-07-00119-CV, 243 SW3d 138, 09-12-07) motion for leave to file response to post submission brief granted The Court reverses the court of appeals' judgment and renders judgment. Justice Medina delivered the opinion of the Court. [pdf 11pgs] View Electronic Briefs in GILBRAITH ENGINEERING CONSULTANTS, INC. v. POCHUCHA (Tex. 2009) STATE'S CONDEMNATION DAMAGES EXPERT SHOULD NOT HAVE BEEN STRUCK, COURT SAYS State of Texas v. Central Expressway Sign Ass'n. No. 08-0061 (Tex. Jun. 26, 2009)(O'Neill) (admissibility of expert testimony, methods of appraising value of condemned property, here billboard easement)(exclusion of expert witness testimony was erroneous and harmful, judgment reversed) THE STATE OF TEXAS v. CENTRAL EXPRESSWAY SIGN ASSOCIATES, ET AL.; from Dallas County; 5th district (05-06-00003-CV, 238 SW3d 800, 08-31-07) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice O'Neill delivered the opinion of the Court. [pdf] View E-Briefs in THE STATE OF TEXAS v. CENTRAL EXPRESSWAY SIGN ASSOCIATES (Tex. 2009) EMPLOYEE MUST GO TO ARBITRATION EVEN THOUGH EMPLOYER NOT SPECIFICALLY IDENTIFIED IN ARB AGREEMENT In Re Macy's Texas, Inc., No. 08-0584 (Tex. Jun. 26, 2009)(per curiam)(arbitration mandamus granted in employment dispute, injury at work claim)(post-injury waivers)(conclusory affidavit) IN RE MACY'S TEXAS, INC.; from Bexar County; 4th district (04-08-00469-CV, ___ SW3d ___, [per curiam opinion of the San Antonio Court of Appeals denying mandamus relief] 07-23-08) stay order issued October 10, 2008, lifted Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion View Electronic Briefs in IN RE MACY'S TEXAS, INC. (Tex. 2009) HOW MANY MEMBERS OF THE PUBLIC ARE ENOUGH FOR AN ATTORNEY DISCIPLINARY PANEL? In the Matter of Allison, No. 08-0705 (Tex. Jun. 26, 2009)(Jefferson) (attorney disciplinary appeal, dispute about minimum level of public's representation on panel, rounding up or down) IN THE MATTER OF BOMA O. ALLISON The Court affirms the Board of Disciplinary Appeals' judgment. Chief Justice Jefferson delivered the opinion of the Court. [pdf] View Electronic Briefs in ALLISON v. COMMISSION FOR LAWYER DISCIPLINE (Tex. 2009) RELIGIOUS FREEDOM RESTORATION ACT GIVEN TEETH IN NIMBY DISPUTE Barr v. City of Sinton, No. 06-0074 (Tex. Jun. 19, 2009)(Hecht) (Texas Religious Freedom Restoration Act(TRFRA) enforced in local NIMBY dispute over halfway house for former prisoners run by pastor) (religion and the law case) PASTOR RICK BARR AND PHILEMON HOMES, INC. v. CITY OF SINTON; from San Patricio County; 13th district (13-03-00727-CV, ___ SW3d ___, 11-23-05) motion to take judicial notice granted The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Hecht delivered the opinion of the Court. ANOTHER NO-DUTY ABSOLUTION - THIS TIME FOR EMPLOYER WHO HAD WORKERS PUT IN 12 HOURS, ONE OF WHOM CAUSED DEADLY WRECK AFTER HE GOT OFF WORK. Nabors Drilling, USA, Inc. v. Escoto, No. 06-0890 (Tex. Jun. 19, 2009)(Green)(employer found to have no duty / liability for car wreck caused by fatigued employee after 12-hour shift) NABORS DRILLING, U.S.A., INC. v. FRANCISCA ESCOTO, ET AL.; from Willacy County; 13th district (13-02-00171-CV, 200 SW3d 716, 06-08-06) The Court reverses the court of appeals' judgment and reinstates the trial court's judgment. Justice Green delivered the opinion of the Court. POLICE OFFICER GETS SECOND CHANCE TO PICK GRIEVANCE PROCESS OF HIS CHOICE City of Desoto, Tx v. White, No. 07-1031(Tex. Jun. 19, 2009)(Green) (public employment, police officers, disciplinary process, election of grievance remedies, city's failure to give pre-appeal notice not jurisdictional) CITY OF DESOTO, TEXAS v. JUSTIN WHITE; from Dallas County; 5th district (05-06-01469-CV, 232 SW3d 379, 08-28-07) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Green delivered the opinion of the Court. THE POST-JUDGMENT MOTION IN A PREVIOUSLY DECIDED CAUSE WAS DENIED: RARE CASE IN WHICH SUPREME COURT UPHELD PUNITIVE DAMAGES FOR MED-MAL GARNERS THIRD OPINION - PARTIES HAD A DISPUTE ABOUT HOW TO READ THE MANDATE Columbia Medical Center of Law Colinas, Inc. v. Hogue, No. 04-0575 (Tex. Jun 17, 2009) (Wainwright) (dissenting from majority's denial of petitioner's motion for clarification of the mandate) COLUMBIA MEDICAL CENTER OF LAS COLINAS, INC. D/B/A LAS COLINAS MEDICAL CENTER v. ATHENA HOGUE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF ROBERT HOGUE, JR., DECEASED, CHRISTOPHER HOGUE, AND ROBERT HOGUE, III; from Dallas County; 5th district (05-03-00279-CV, 132 SW3d 671, 04-13-04) petitioner's motion to clarify mandate denied Justice Wainwright delivered an opinion, in which Justice Hecht and Justice Brister joined, dissenting to the denial. JUVENILE NOT ENTITLED TO FREE LAWYER FOR HABEAS PETITION ONCE HE TURNED AN ADULT (ALTHOUGH SERVING SENTENCE ("Detention") IMPOSED AS JUVENILE UNDER JUVENILE JUSTICE CODE) In re Hall, No. 07-0322 (Tex, Jun. 12, 2009) (Medina)(juvenile justice, habeas corpus, access to justice, free appointed counsel, statutory construction) IN RE JAMES ALLEN HALL; from Bexar County; 4th district (04-07-00050-CV, ___ SW3d ___, 02- 14-07) The petition for writ of mandamus is denied. Justice Medina delivered the opinion of the Court. SUPREMES GRANT FORUM SELECTION MANDAMUS In re International Profit Associates, Inc. No. 08-0531 (Tex. Jun. 12, 2009)(per curiam) (mandamus to enforce forum selection clause choice of law clause granted)(who has evidentiary burden in dispute over forum selection clause, where dispute should be litigated?) IN RE INTERNATIONAL PROFIT ASSOCIATES, INC., INTEGRATED BUSINESS ANALYSIS, INC., ACCOUNTANCY ASSOCIATES, LLC., INTERNATIONAL TAX ADVISORS, INC., AND HUEY MITCHELL, JR.; from Dallas County; 5th district (05-08-00809-CV, ___ SW3d ___, 06-30-08) stay order issued March 11, 2009, lifted Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion JURY INSTRUCTION ERROR FOUND RE: LOST CHANCE OF SURVIVAL DOCTRINE AND DOC AS INDEPENDENT CONTRACTOR Columbia Rio Grande Healthcare, LP v. Hawley, No. 06-0372 (Tex. Jun. 5, 2009)(Johnson)(HCLC, negligent failure to take action based on cancer diagnosis)(judgment on jury verdict in med-mal suit against hospital reversed)(jury instruction error as grounds for reversal and new trial, lost chance of survival instructions, physician as independent contractor rather than hospital's agent)(trial court found to have erred in refusing jury instructions; retrial ordered on remand) COLUMBIA RIO GRANDE HEALTHCARE, L.P. D/B/A RIO GRANDE REGIONAL HOSPITAL v. ALICE H. HAWLEY AND JAMES A. HAWLEY; from Hidalgo County; 13th district (13-03-00427-CV, 188 SW3d 838, 03-23-06) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Brister, Justice Green, and Justice Willett joined, and in all but Part II-D 2 of which Justice O'Neill and Justice Medina joined. DISCOVERY MANDAMUS GRANTED TO VACATE PROTECTIVE ORDER IN MED-MAL SUIT In re Lester Collins, MD, No. 07-0737 (Tex. Jun. 5, 2009)(O'Neill) (court grants discovery mandamus brought by doctor; protective order lifted covering ex parte contacts with witnesses)(medical health care information privacy, patient's release as condition of bringing med-mal suit, no HIPAA preemption) IN RE LESTER COLLINS, M.D.; from Smith County; 12th district (12-06-00078-CV, 224 SW3d 798, 05-14-07) The Court conditionally grants the petition for writ of mandamus. Justice O'Neill delivered the opinion of the Court. NO DUE PROCESS VIOLATION FOUND IN GARNISHMENT OF INMATE TRUST ACCOUNT TO PAY COURT COSTS Harrell v. State of Texas, No. 07-0806 (Tex. Jun. 5, 2009) (Willett) (whether order to prison officials to withdraw money from inmate trust account to pay court costs in underlying criminal case is a civil or a criminal matter, what due process prisoner is entitled to). WALTER E. HARRELL v. THE STATE OF TEXAS; from Terry County; 7th district (07-06-00469-CR&07-06-00470-CR, ___ SW3d ___, 08-13-07) The Court reverses the court of appeals' judgment dismissing the case for want of jurisdiction and renders judgment affirming the trial court's order. Justice Willett delivered the opinion of the Court. SUIT TO REMOVE TRUSTEE NOT GOVERNED BY ANY STATUTE OF LIMITATIONS Ditta v. Conte, No. 07-1026 (Tex. Jun. 5, 2009) (Willett) (in action for removal of trustee, statute of limitations does not apply; trustee may be removed for cause at any time, based on complaint of acts or omissions that would otherwise be time-barred, but suit for breach of fiduciary duty seeking money damages is subject to four-year SoL) LOUIS M. DITTA, GUARDIAN OF THE ESTATE OF DORIS L. CONTE, AN INCAPACITATED PERSON v. SUSAN C. CONTE AND JOSEPH P. CONTE, JR.; from Harris County; 1st district (01-05- 00603-CV, ___ SW3d ___, 08-31-07) motion to strike petitioner's appendix to brief on the merits dismissed as moot The Court reverses the court of appeals' judgment and remands the case to that court. Justice Willett delivered the opinion of the Court. SUPREME COURT DISAGREES WITH COURT OF APPEALS - NO PRODUCT LIABILITY Timpte Industries, Inc. v. Gish, No. 08-0043 (Jun. 5, 2009) (Medina) (product liability, supreme court finds no defect in design of trailer from which worker fell and suffered major injuries) TIMPTE INDUSTRIES, INC. AND TIMPTE INC. v. ROBERT GISH AND PINNACOL ASSURANCE; from Hale County; 7th district (07-06-00215-CV, ___ SW3d ___, 11-30-07) The Court reverses the court of appeals' judgment and renders judgment. Justice Medina delivered the opinion of the Court. SUFFICIENCY OF SERVICE OF AMENDED PETITION SEEKING MORE ONEROUS RELIEF BY CERTIFIED MAIL ON DEFENDANT WHO WAS PREVIOUSLY SERVED WITH CITATION, BUT DID NOT ANSWER. In the Interest of EA, No. 08-0157 (Tex. Jun. 5, 2009)(Jefferson) (method of service of amended petition, sufficiency of service by certified mail under rule 21a when Defendant has been served with civil process, but has not filed an answer or made appearance) (SAPCR modification proceeding brought within one year of final order in underlying child custody suit). IN THE INTEREST OF E.A. AND D.A., CHILDREN; from Wichita County; 2nd district (02-07-00215- CV, ___ SW3d ___, 12-06-07) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Chief Justice Jefferson delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice Medina, Justice Green, and Justice Johnson joined. Justice Scott A. Brister delivered a concurring opinion, in which Justice Wainwright and Justice Willett joined. (default judgment not to be based on amended petition seeking more onerous relief against non-answering defendant if not served with new citation)
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