2011 TEXAS SUPREME COURT CASES
DECIDED WITH OPINIONS
DECIDED WITH OPINIONS
January - June 2011 Texas Supreme Court Opinions including Dissents (in reverse chronologicial order) Also see ---> 2011 Texas Supreme Court Opinions | 2011 Per Curiam Opinions 2010 Texas Supreme Court Opinions 2009 Texas Supreme Court Opinions LAST UPDATED: 6/24/11 June 24, 2011 Marsh USA Inc. v. Cook, NO. 09-0558 (Tex. Jun. 24, 2011)(Wainwright) MARSH USA INC. AND MARSH & MCLENNAN COMPANIES, INC. v. REX COOK; from Dallas County; 5th district (05-08-00685- CV, 287 SW3d 378, 05-26-09) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Wainwright delivered the opinion of the Court, in which Justice Hecht, Justice Medina, Justice Johnson, and Justice Guzman joined. [pdf] Justice Willett delivered an opinion concurring in the judgment. [pdf] Justice Green delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Lehrmann joined. [pdf] View Electronic Briefs in 09-0558 MARSH USA INC. v. COOK LTTS Charter School, Inc. v. Palasota, No. 09-0850 (Tex. Jun 24, 2011)(per curiam) LTTS CHARTER SCHOOL, INC. D/B/A UNIVERSAL ACADEMY v. JIMMY PALASOTA D/B/A PALASOTA PROPERTY COMPANY; from Dallas County; 5th district (05-08-01039-CV, 293 SW3d 830, 07-28-09) 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 09-0850 LTTS CHARTER SCHOOL, INC. v. PALASOTA 1/2 Price Checks Cashed v. United Automobile Ins. Co.., No. 10-0434 (Tex. Jun. 24, 2011)(Guzman) (dishonor of check, Texas UCC) 1/2 PRICE CHECKS CASHED v. UNITED AUTOMOBILE INSURANCE COMPANY; from Dallas County; 5th district (05-08- 01685-CV, 310 SW3d 197, 04-14-10) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Guzman delivered the opinion of the Court. [pdf] View Electronic Briefs in 10-0434 1/2 PRICE CHECKS CASHED v. UNITED AUTOMOBILE INS. CO. (incl. amicus briefs) Ganim v. Alattar, No. 10-0592 (Tex. Jun 24, 2011)(per curiam) The issue in this case is whether an agreement to acquire real property for the benefit of a partnership was barred by the statute of frauds. The court of appeals held that it was. We disagree. We reverse the court of appeals’ judgment and remand to that court for further proceedings. JOHN GANIM v. J. FAROUK (FRANK) ALATTAR; from Fort Bend County; 14th district (14-08-00756-CV, ___ SW3d ___, 02-18- 10) 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] See E-Briefs in 10-0592 GANIM v. ALATTAR Kachikwu Illoh MD v. Carroll, No. 10-0748 (Tex. Jan 24, 2011) (per curiam) While this case has been pending on appeal, we decided Franka v. Velasquez, 332 S.W.3d 367 (Tex. 2011), which held, among other things, that a tort action “could have been brought under” the Tort Claims Act even if that tort action does not fall within the Act’s limited waiver of immunity. Id. at 375. In light of Franka, we grant Illoh’s petition for review, and without hearing oral argument, reverse the court of appeals’ judgment and remand the case to the court of appeals for further proceedings. TEX. R. APP. P. 59.1. KACHIKWU ILLOH, M.D. v. DAMITA CARROLL AND KAREN BUTLER, INDIVIDUALLY AND AS REPRESENTATIVES OF THE ESTATE OF JAMES CARROLL; from Harris County; 14th district (14-09-01001-CV, 321 SW3d 711, 08-05-10) 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 in 10-0748 KACHIKWU ILLOH, M.D. v. CARROLL June 17, 2011 Bic Pen Corp. v. Carter, No. 09-0039 (Tex. June 17, 2011)(Johnson)(product liability, child injured by cigarette lighter) Six-year-old Brittany Carter was burned when her five-year-old brother accidently set fire to her dress with a BIC lighter. The trial court entered judgment against BIC based on jury findings that the lighter was defectively designed and manufactured and that each of the defects caused Brittany’s injuries. The court of appeals affirmed based on the defective design finding and did not reach BIC’s other issues. BIC Pen Corp. v. Carter, 171 S.W.3d 657, 662 (Tex. App.—Corpus Christi 2005), rev’d 251 S.W.3d 500 (Tex. 2008). In a prior appeal we held that the design defect claim was preempted by federal law and remanded the case to the court of appeals. BIC Pen Corp. v. Carter, 251 S.W.3d 500, 511 (Tex. 2008). The court of appeals then affirmed the trial court’s judgment based on the manufacturing defect finding. ___ S.W.3d ___. We conclude that no evidence supports the finding that a manufacturing defect caused Brittany’s injuries. We reverse and render judgment for BIC. Conclusion. The facts of this case are unfortunate. Nevertheless, we must apply established legal principles in reviewing the parties’ positions. In applying those principles, we conclude there is legally insufficient evidence to support the finding that manufacturing defects in BIC’s Subject Lighter were a cause-in-fact of Brittany’s injuries. We reverse the court of appeals’ judgment and render judgment for BIC. BIC PEN CORPORATION v. JANACE M. CARTER, AS NEXT FRIEND OF BRITTANY CARTER; from Matagorda County; 13th district (13-03-00560-CV, ___ SW3d ___, 08-18-05) 2 petitions The Court reverses the court of appeals' judgment and renders judgment. Justice Johnson delivered the opinion of the Court. [pdf] (Justice Green not sitting) See E-briefs in 09-0039 BIC PEN CORP. v. CARTER LTTS Charter School, Inc. v. C2 Construction Inc., No. 09-0794 (Tex. Jun. 17, 2011)(Willett)(charter school a governmental unit for tort claims purposes)(interlocutory appeal of immunity ruling permitted). Since 1995, open-enrollment charter schools have been a part of the Texas public-school system. These nontraditional public schools, created and governed by Chapter 12 of the Education Code, receive government funding and comply with the state’s testing and accountability system, but they operate with greater flexibility than traditional public schools, in hopes of spurring innovation and improving student achievement. This interlocutory appeal poses a narrow issue: Is an open-enrollment charter school a “governmental unit” as defined in Section 101.001(3)(D) of the Tort Claims Act1 and thus able to take an interlocutory appeal from a trial court’s denial of its plea to the jurisdiction?2 We answer yes. An open-enrollment charter school qualifies under the Tort Claims Act as an “institution, agency, or organ of government” deriving its status and authority from legislative enactments.3 Accordingly, it may bring an interlocutory appeal. We reverse the court of appeals’ judgment dismissing the interlocutory appeal for lack of jurisdiction and remand to that court to reach the merits of the school’s immunity claim. Conclusion. Open-enrollment charter schools are governmental units for Tort Claims Act purposes because: (1) The Act defines “governmental unit” broadly to include “any other institution, agency, or organ of government” derived from state law;70 (2) the Education Code defines open-enrollment charter schools as “part of the public school system,”71 which are “created in accordance with the laws of this state,”72 subject to “state laws and rules governing public schools,”73 and, together with traditional public schools, “hav[ing] the primary responsibility for implementing the state’s system of public education;”74 and (3) the Legislature considers open-enrollment charter schools to be “governmental entit[ies]”75 under a host of other laws outside the Education Code. Accordingly, because Universal Academy is a “governmental unit” under the Tort Claims Act, the court of appeals had jurisdiction to hear Universal Academy’s interlocutory appeal under Section 51.014(a)(8).76 Our holding does not resolve the underlying issue of whether Universal Academy enjoys immunity from C2’s contract claim. We reverse the court of appeals’ judgment dismissing the appeal and remand to that court for further proceedings. LTTS CHARTER SCHOOL, INC. D/B/A UNIVERSAL ACADEMY v. C2 CONSTRUCTION, INC.; from Dallas County; 5th district (05-07-01469-CV, 288 SW3d 31, 02-02-09) The Court reverses the court of appeals' judgment and remands the case to that court. Justice Willett delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Green, Justice Johnson, and Justice Lehrmann joined. [pdf] Justice Guzman delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Medina joined. [pdf] A party’s ability to take an interlocutory appeal is a limited exception to the general rule that only final orders are appealable. As applicable here, the contours of that exception are found in sections 51.014(a)(8) and 101.001(3) of the Civil Practice and Remedies Code. Despite these limits, the Court embarks on a perilous expedition through the Education Code in an attempt to locate some indicia that the Legislature intended to allow privately run, open-enrollment charter schools to take this circumscribed form of appeal. In so doing, the Court ventures beyond the narrow procedural question presented in this case: whether a privately run, open-enrollment charter school is a “governmental unit” as defined by section 101.001(3) of the Civil Practice and Remedies Code. If it is, then an interlocutory appeal is proper from denial of a plea to the jurisdiction by the school, as authorized by section 51.014(a)(8). But, because it is not, I would affirm the court of appeals. Privately run, open- enrollment charter schools do not meet the Legislature’s definition as set out in section 101.001(3), and therefore no interlocutory appeal may be taken from an order granting or denying a plea to the jurisdiction by such a school. Conclusion. Because (1) the plain meaning of Civil Practice and Remedies Code section 101.001(3) does not cover a privately run, open-enrollment charter school like LTTS, and (2) the Court has effectively resolved the underlying substance of whether such schools enjoy immunity from suit, rather than the procedural issue properly before us, I respectfully dissent, and would affirm the court of appeals’ holding that it lacked jurisdiction over this interlocutory appeal. See E-briefs in 09-0794 LTTS CHARTER SCHOOL, INC. v. C2 CONSTRUCTION, INC. SCI v. Guerra, No. 09-0941 (Tex. Jun 17, 2011)(Johnson) In this appeal we address whether the evidence was sufficient to support jury findings that (1) both the corporation that owned and operated a cemetery and its parent corporation were liable for actions of the cemetery’s employees, and (2) the daughters and widow of a decedent suffered compensable mental anguish because the decedent’s body was disinterred and moved to another grave without permission. We also address whether evidence of other lawsuits against the cemetery owner was properly admitted. Marcos Guerra was buried at Mont Meta Memorial Park cemetery in a plot that had been sold to someone else. His family refused the cemetery’s request that it be allowed to move the body to another burial plot, but the cemetery did so anyway. When family members discovered that Mr. Guerra’s body had been moved, his daughters and widow sued both SCI Texas Funeral Services, Inc. d/b/a Mont Meta Memorial Park (SCI Texas), the corporation that owned and operated the cemetery, and its parent corporation, SCI International Corporation (SCI International). Pursuant to a jury verdict, the trial court rendered judgment against both corporations for actual and exemplary damages. The court of appeals modified the judgment as to exemplary damages and otherwise affirmed. We hold that there was legally insufficient evidence to support either the liability findings against SCI International or the mental anguish findings in favor of Mr. Guerra’s daughters. We further hold that the trial court erred by admitting evidence of other lawsuits, verdicts, and judgments against SCI Texas. We reverse and render in part and remand for a new trial in part. Conclusion. We reverse the judgment of the court of appeals. We render judgment that (1) Julie, Gracie, and Mary Ester take nothing from SCI International and SCI Texas and (2) Mrs. Guerra take nothing from SCI International. Mrs. Guerra’s claim against SCI Texas is remanded for a new trial. SERVICE CORPORATION INTERNATIONAL AND SCI TEXAS FUNERAL SERVICES, INC., D/B/A MONT META MEMORIAL PARK v. JUANITA G. GUERRA, JULIE ANN RAMIREZ, GRACIE LITTLE AND MARY ESTHER MARTINEZ; from Cameron County; 13th district (13-07-00707-CV, ___ SW3d ___, 10-08-09) The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to the trial court. Justice Johnson delivered the opinion of the Court. [pdf] See E-briefs in 09-0941 SERVICE CORP. INT'L v. GUERRA May 27, 2011 TGS-Nopec Gephysical Co v. Combs, No. 08-1056 (Tex. May 27, 2011)(Medina) This appeal arises from a franchise tax dispute involving the apportionment of receipts from the licensing of geophysical and seismic data to customers in Texas. The taxpayer complains that the Comptroller has mischaracterized these receipts as Texas business and thereby has erroneously increased its franchise tax burden. At issue is whether these receipts should be categorized as receipts from the use of a license or as receipts from the sale of an intangible asset. If the receipts are from the use of a license, then the Comptroller has correctly assessed the tax. If the receipts are from the sale of an intangible, then the Comptroller has erred in assessing additional taxes because receipts from the sales of intangibles are Texas receipts only if the legal domicile of the payor is Texas. The lower courts concluded that the Comptroller had appropriately characterized the revenue as receipts from the use of a license in Texas and therefore correctly assessed the additional taxes. 268 S.W.3d 637 (Tex. App.—Austin 2010). We disagree and reverse and remand to the trial court for further proceedings. TGS-NOPEC GEOPHYSICAL COMPANY D/B/A TGS-NOPEC CORPORATION v. SUSAN COMBS, SUCCESSOR-IN-INTEREST TO CAROLE KEETON STRAYHORN, COMPTROLLER OF PUBLIC ACCOUNTS, AND GREG ABBOTT, ATTORNEY GENERAL OF TEXAS; from Travis County; 3rd district (03-07-00640-CV, 268 SW3d 637, 08-15-08) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Medina delivered the opinion of the Court. [pdf] (Justice Hecht and Justice Guzman not sitting) See Electronic Briefs in Tex. Case No. 08-1056 TGS-NOPEC GEOPHYSICAL CO. v. COMBS In re Reece, No. 09-0520 (Tex. May 27, 2011)(Guzman) It is well-rooted in our jurisprudence that contempt is a broad and inherent power of a court. But, we have also recognized that despite the breadth and necessity of that power, it is a power that must be exercised with caution. Today, we decide as a matter of first impression whether a trial court may hold a litigant in contempt for perjury committed during a deposition. We are further presented with a question arising from the bifurcated nature of the Texas judiciary and our limited habeas jurisdiction: whether we should exercise our mandamus jurisdiction to provide a forum for a civil litigant who is deprived of liberty pursuant to a court’s contempt order, and the Court of Criminal Appeals has declined to exercise its habeas jurisdiction. In the underlying civil case, the relator was held in contempt and confined for perjuring himself during a deposition. The relator challenged his confinement by seeking a writ of habeas corpus in the Court of Criminal Appeals, but that court declined to exercise its jurisdiction citing, among other things, the civil nature of the case. The Court of Criminal Appeals directed the relator to pursue his remedies in this Court. Because we lack habeas jurisdiction in this case, the relator pursued relief by filing the instant petition for writ of mandamus to challenge his confinement. We conclude the trial court abused its discretion by holding the relator in contempt for perjury occurring during a deposition, because such perjury did not obstruct the operation of the court. Further, because the underlying suit is civil in nature, and the Court of Criminal Appeals declined to grant the relator leave to file a habeas petition in that court, we hold the relator has no adequate remedy by appeal and therefore mandamus is the appropriate remedy to correct the trial court’s abuse of discretion. We conditionally grant relief. IN RE COY REECE; from Dallas County; 5th district (05-09-00609-CV, ___ SW3d ___, 06-11-09) motion to dismiss for lack of jurisdiction denied motion to revoke bond denied The Court conditionally grants the writ of mandamus. Justice Guzman delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Medina, Justice Green, and Justice Lehrmann joined. [pdf] Justice Johnson delivered a dissenting opinion. [pdf] The Court of Criminal Appeals has general original habeas jurisdiction, Tex. Const. art. V, § 5; Ex parte Thompson, 273 S.W. 3d 177, 181 (Tex. Crim. App. 2008), while this Court’s habeas jurisdiction is limited. Our habeas jurisdiction exists in matters where a contemnor is confined because he or she violated “an order, judgment, or decree previously made, rendered, or entered by the court or judge in a civil case.” Tex. Gov’t Code § 22.002(e). Although our habeas jurisdiction is limited, our mandamus jurisdiction is broad. See Tex. Const. art. V, § 3(a); Tex. Gov’t Code § 22.002(a). And for the reasons the Court sets out, I agree that our broad mandamus jurisdiction encompasses the matters set out in Reece’s petition. Nevertheless, and as SB International, Inc. argues, Reece substantively petitions this Court for habeas relief. Under the circumstances I would refrain from granting mandamus relief for the reasons Justice Willett sets out in part IV of his dissent, which I join. Because I disagree that we should grant mandamus relief, I respectfully dissent. Justice Willett delivered a dissenting opinion, in which Justice Johnson joined as to Part IV. [pdf] Today’s case [sparks] a game of jurisdictional hot potato between us and our constitutional twin, the Court of Criminal Appeals. Truth be told—and this particular truth has been told repeatedly—the State’s entire Rube Goldberg-designed judicial “system” is beyond piecemeal repair; it should be scrapped and rebuilt top-to-bottom. That said, and however labyrinthine the jurisdictional maze often is, the answer in today’s case seems straightforward: This dispute belongs with our sister court. It arrived on our doorstep because of a simple yet pivotal misunderstanding: the Court of Criminal Appeals’ mistaken belief that we have unfettered habeas jurisdiction and are thus equally able to grant habeas relief.1 We do not,2 and the Court today is unified 9-0 on that point (though the Court does not explicitly mention our sister court’s misinterpretation). We part ways 7-2 on whether we should make lemons out of jurisdictional lemonade by wiring around our habeas limitation and relabeling the relief sought “mandamus.” The mandamus remedy turns on two findings: legality and practicality.3 On both scores, I would return this case to the court that conceded two years ago that it “does have the authority to act in this case.”4 Statute and precedent strongly suggest we cannot hear this case, but even if we can, practical considerations advise we should not. Neither refusing nor resisting, the Court today yanks tighter a Gordian knot that should be cut clean through. I respectfully dissent, and, for good measure, exhort the Legislature to propose a judiciary worthy of Texas. See Electronic Briefs in Tex. Case No. 09-0520 IN RE COY REECE Ojo v. Farmers Group Inc., No. 10-0245 (Tex. May 27, 2011)(Green) The United States Court of Appeals for the Ninth Circuit certified to this Court the following question: Does Texas law permit an insurance company to price insurance by using a credit-score factor that has a racially disparate impact that, were it not for the [McCarran-Ferguson Act],1 would violate the federal Fair Housing Act, 42 U.S.C. §§ 3601–19, absent a legally sufficient nondiscriminatory reason, or would using such a credit-score factor violate Texas Insurance Code sections 544.002(a), 559.051, 559.052, or some other provision of Texas law? Ojo v. Farmers Group, Inc., 600 F.3d 1201, 1204–05 (9th Cir. 2010) (en banc) (per curiam). Pursuant to Article 5, section 3-c of the Texas Constitution and Texas Rule of Appellate Procedure 58.1, we answer that Texas law prohibits the use of race- based credit scoring, but permits race-neutral credit scoring even if it has a racially disparate impact. PATRICK O. OJO, ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED v. FARMERS GROUP, INC., FIRE UNDERWRITERS ASSOCIATION, FIRE INSURANCE EXCHANGE, FARMERS UNDERWRITERS ASSOCIATION, AND FARMERS INSURANCE EXCHANGE The Court answers the question certified by the United States Court of Appeals for the Ninth Circuit. Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Medina, Justice Johnson, Justice Guzman, and Justice Lehrmann joined, and in which Justice Willett joined as to Parts I, II, III.A-B, IV, and V. [pdf] Chief Justice Jefferson delivered a concurring opinion. [pdf] So what does the Court’s survey of legislative history tell us today? The Court makes no attempt to construct the statute’s meaning by looking at its history. Instead, it gives us information that, while not essential to our interpretation of the Insurance Code, is far from irrelevant: “The legislative history of the credit scoring bill and the arguments of its opponents indicates that the Texas Legislature was aware of the possibility of a disparate impact on racial minorities, yet did not expressly provide for a disparate impact claim as it did in the Texas Labor Code.” ___ S.W.3d at ___. Thus, we are told that the statute says what it says because the Legislature intended that meaning.15 This fact has no bearing on our interpretation, and we would interpret clear language the same regardless of whether or not the Legislature had given thought to the specific issue before us. The inclusion of this history gives notice to those who feel wronged by the statute. The remedy they seek requires engagement in the political process, on the legislative battlefield. Moreover, it gives those same aggrieved citizens some indication of why the Legislature would have made the choice that it did, allowing them to hone their advocacy. For those who support the statute, this language’s relevance is much the same. This guidance will not harm democracy, our reputation, or the bar, and indeed it may help. Justice Willett delivered a concurring opinion. [pdf] The Court is right that today’s outcome is dictated by the Insurance Code as it is written. That being so, I wish the Court were more inhibited to do what we have prohibited—mine extratextual clues to illuminate an already-unambiguous statute. Text alone does not answer every question, but it answers many, including today’s, as the Court concedes. I accept a cautious (and non-villainous) role for extrinsic aids, including certain legislative history, where a nebulous statute is susceptible to varying interpretations,1 but our rule for unambiguous statutes is uncomplicated: “Where text is clear, text is determinative,”2 making any foray into extratextual aids not just inadvisable but, as we have repeatedly derided it, “inappropriate.”3 The Court nowhere states—or even suggests—the Insurance Code is ambiguous. But even assuming arguendo it is, “thus justifying cautious use of secondary construction aids,”4 the Court beckons some strange ones, including some we have consistently decried as patently unreliable (like failed bills in a subsequent Legislature). The Court’s detour may be well meaning, but it is not well supported, and I regret its “disparate impact” on our interpretive precedent. I would hold to our holdings—when the Legislature speaks plainly, the judiciary should as well. In other words, and applying a rule less prudish than prudent, if it is not necessary to look further, it is necessary not to look further. An unembellished interpretation of an unambiguous statute can be spare without being sparse. For these reasons, I agree with all but Part III.C of today’s opinion. The Court’s textual analysis is clear and incisive, and I join it unreservedly. The meaning of the Insurance Code is apparent from its language, read in context, especially as contrasted with the Labor and Government Codes, both of which explicitly allow disparate-impact liability. All in all, though, I wish the Court were more allegiant to our longstanding interpretive precedent. We should treat similar cases similarly, not disparately. Given the rise of state legisprudence, we owe interpretive clarity—and consistency—to the courts below us, the litigants before us, the citizens beside us, and the cases beyond us. (Justice Hecht not sitting) See Electronic Briefs in Tex. Case No. 10-0245 PATRICK O. OJO v. FARMERS GROUP, INC. CMH Homes, Inc. v. Perez, No. 10-0688 (Tex. May 27, 2011)(Wainwright) (arbitration, appellate review of appointment of arbitrator) Once more, this Court is presented with a question of the availability of judicial review of an interlocutory arbitration order. In this consumer dispute, CMH Homes, Inc. and Adam Perez agreed to submit their claims to arbitration but could not agree on an arbitrator. Because of this disagreement, the trial judge intervened and appointed an arbitrator to preside over their dispute. CMH Homes filed an interlocutory appeal challenging this appointment, requesting in the alternative that its appeal be treated as a mandamus petition. The court of appeals determined it was without jurisdiction and dismissed the suit. We agree with the court of appeals’ determination that Texas Civil Practice and Remedies Code section 51.016 does not allow an interlocutory appeal of an order appointing an arbitrator. However, under these circumstances, CMH Homes’s appeal may properly be considered as a petition for writ of mandamus. We remand for the court of appeals to consider this appeal as a petition for writ of mandamus. We hold that Texas Civil Practice and Remedies Code section 51.016 does not permit interlocutory appeal from an order appointing an arbitrator. However, this appeal may properly be considered as a petition for writ of mandamus, as CMH Homes requested. The court of appeals erred in dismissing CMH Homes’s appeal for lack of jurisdiction. Accordingly, we reverse and remand to the court of appeals for further proceedings consistent with this opinion. CMH HOMES, INC., ET AL. v. ADAM PEREZ; from Duval County; 4th district (04-10-00259-CV, 328 SW3d 592, 07-28-10) The Court reverses the court of appeals' judgment and remands the case to that court. Justice Wainwright delivered the opinion of the Court. [pdf] See Electronic Briefs in Tex. Case No. 10-0688 CMH HOMES, INC. v. PEREZ May 13, 2011 Nafta Traders Inc. v. Quinn, No. 08-0613 (Tex. May 13, 2011)(Hecht) “The answer to most questions regarding arbitration ‘flow inexorably from the fact that arbitration is simply a matter of contract between the parties.’”1 Nevertheless, the United States Supreme Court has held in Hall Street Associates, L.L.C. v. Mattel, Inc., that the grounds for vacating or modifying an arbitration award under the Federal Arbitration Act (FAA)2 “are exclusive” and cannot be “supplemented by contract”.3 The principal questions in this case are whether the Texas General Arbitration Act (TAA)4 likewise precludes an agreement for judicial review of an arbitration award for reversible error, and if not, whether the FAA preempts enforcement of such an agreement. We answer both questions in the negative and consequently reverse the judgment of the court of appeals5 and remand the case to that court for further proceedings. In the trial court, Nafta invoked the provision of its agreement with Quinn limiting the arbitrator’s authority “to render a decision which contains a reversible error of state or federal law, or . . . to apply a cause of action or remedy not expressly provided for under existing state or federal law”, and raised its arguments under this provision for vacating the award. Since the trial court’ s order confirming the award gives no basis for its decision, we must presume that the court rejected Nafta’s arguments in substance. Nafta raised the same arguments in the court of appeals, but the court did not reach them, concluding instead that even if meritorious, they were not grounds for vacatur. Because we disagree, the judgment of the court of appeals must be reversed and the case remanded to that court for consideration of the merits of Nafta’s challenges to the arbitration award. It is so ordered. NAFTA TRADERS, INC. v. MARGARET A. QUINN; from Dallas County; 5th district (05-07-00340-CV, 257 SW3d 795, 06-17-08) The Court reverses the court of appeals' judgment and remands the case to that court. Justice Hecht delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, Justice Willett, Justice Guzman, and Justice Lehrmann joined. [pdf] Chief Justice Jefferson delivered a concurring opinion, in which Justice Wainwright and Justice Lehrmann joined. [pdf] See Electronic Briefs in Tex. Case No. 08-0613 NAFTA TRADERS, INC. v. QUINN Harris Methodist Fort Worth v. Ollie, No. 09-0025 (Tex. May 13, 2011)(per curiam) (what is a med-mal claim; scope of statutory definition, characterization of claim) At issue in this appeal is whether a patient’s claim against a hospital for injuries suffered when she slipped and fell on a wet bathroom floor during her post-operative confinement constitutes a health care liability claim (HCLC). We hold that it does. The essence of Ollie’s claim centers on the failure of Harris Methodist to act with a proper degree of care to furnish a dry floor, warn her of the hazards of a wet bathroom floor, or some similar failure to act. See Garland, 156 S.W.3d at 543-44 (explaining that the Court is not bound by the manner in which the plaintiff’s pleadings characterize the claim in determining whether the claim is an HCLC). Ollie’s pleadings show that her action is a safety claim directly related to services meeting her fundamental needs. The claim falls within the statutory definition of an HCLC and she was required to serve an expert report. See Tex. Civ. Prac. & Rem. Code § 74.001(a)(13). Because Ollie was required to, but did not, serve an expert report, the trial court should have dismissed her claim. The court of appeals erred in holding otherwise. Harris Methodist requested its attorney’s fees and costs in the trial court pursuant to Texas Civil Practice and Remedies Code section 74.351(b)(1). Accordingly, we reverse the court of appeals’ judgment and remand the case to the trial court with instructions to dismiss Ollie’s claims against Harris Methodist and consider the hospital’s request for attorney’s fees and costs. HARRIS METHODIST FORT WORTH v. JO FAWN OLLIE; from Tarrant County; 2nd district (02-07-00122-CV, 270 SW3d 720, 10-30-08) 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 [pdf] Electronic Briefs N/A BP v. Marshall, No. 09-0399 (Tex. May 13, 2011)(Lehrmann)(adverse possession of lease interest; discovery rule, fraudulent concealment, statute of limitations) This case involves two related oil and gas mineral lease disputes that were jointly tried. One of the disputes is between petitioners BP America Production Co., Atlantic Richfield Co., and Vastar Resources, Inc. (collectively “BP”), the lessee and operator, and respondents the Marshall family, Stanley, Robert, Catherine, and Margaret Marshall, the lessors. The other is a dispute between BP’s successors-in-interest, petitioners Wagner Oil Co. f/k/a Duer Wagner & Co., Jacque Oil & Gas Limited, Duer Wagner, Jr., Duer Wagner III, Bryan C. Wagner, James D. Finley, Dennis D. Corkran, David J. Andrews, H.E. Patterson, Brent Talbot, Scott Briggs, and Gysle R. Shellum (collectively “Wagner”), and another lessor, respondents Vaquillas Ranch Co., Ltd., Vaquillas Unproven Minerals, Ltd., and Vaquillas Proven Minerals, Ltd. (“Vaquillas”)1. We are asked to determine whether limitations barred the Marshalls’ fraud claim against BP, and whether Vaquillas lost title by adverse possession after Wagner succeeded to BP’s interests, took over the operations, and produced and paid Vaquillas royalties for nearly twenty years. Based in part upon jury findings that BP had made fraudulent representations about its good-faith efforts to develop a well on the Marshall lease that the Marshalls could not have discovered before limitations expired, the trial court rendered judgment for the Marshalls. It also rendered judgment for Wagner that Wagner had acquired the Marshall and Vaquillas leases by adverse possession. The court of appeals affirmed the judgment against BP in most respects, and reversed the trial court’s judgment for Wagner. 288 S.W.3d 430, 438. We reverse the court of appeals’ judgment and render judgment for Wagner and BP. We hold that because the Marshalls’ injury was not inherently undiscoverable and BP’s fraudulent representations about its good faith efforts to develop the well could have been discovered with reasonable diligence before limitations expired, neither the discovery rule nor fraudulent concealment extended limitations. Accordingly, the Marshalls’ fraud claims against BP were time-barred. We further hold that by paying a clearly labeled royalty to Vaquillas, Wagner sufficiently asserted its intent to oust Vaquillas to acquire the lease by adverse possession. We reverse the court of appeals’ judgment as to both BP and Wagner. We hold that the evidence conclusively established that BP’s fraud could have been discovered by the Marshalls through the exercise of reasonable diligence. We further hold that the court of appeals erred in reversing the trial court’s judgment awarding title to Vaquillas’s leasehold interest to Wagner. Accordingly, we reverse and render for BP and Wagner. BP AMERICA PRODUCTION COMPANY, ATLANTIC RICHFIELD COMPANY AND VASTAR RESOURCES, INC. v. STANLEY G. MARSHALL, JR., ROBERT RAY MARSHALL, CATHERINE IRENE MARSHALL F/K/A CATHERINE I.M. HASHMI, AND MARGARET ANN MARSHALL F/K/A MARGARET A.M. JEFFUS, BY AND THROUGH DAVID JEFFUS, AS INDEPENDENT EXECUTOR OF THE ESTATE OF MARGARET MARSHALL; from Zapata County; 4th district (04-06-00478-CV, 288 SW3d 430, 12-10-08) 2 petitions The Court reverses the court of appeals' judgment and renders judgment. Justice Lehrmann delivered the opinion of the Court. [pdf] (Justice Green not sitting) See Electronic Briefs in 09-0399 BP AMERICA PRODUCTION CO. v. MARSHALL (amicus briefs too) Genesis Tax Loan Services v. Kothmann, No. 09-0828 (Tex. May 13, 2011)(Hecht) Section 32.06 of the Texas Tax Code provides that a tax lien on real property, which takes priority over many other liens, may be transferred, under specified conditions, to a person who pays the taxes with the owner’s permission.1 The principal issue before us is whether those conditions were met in this case. The court of appeals held that the statute does not permit a verified photocopy of the lien transfer to be recorded when the original has been lost.2 We disagree and hold that the statutory conditions were met. We reverse the judgment of the court of appeals and remand to the trial court. We conclude that the judgment of the court of appeals must be reversed. We remand the case to the trial court. GENESIS TAX LOAN SERVICES, INC. AND M. SUZANNE FROSSARD, TRUSTEE v. KODY AND JANET KOTHMANN AND KODY KOTHMANN, TRUSTEE; from Lubbock County; 7th district (07-08-00070-CV, ___ SW3d ___, 02-27-09) 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] See Electronic Briefs in 09-0828 GENESIS TAX LOAN SERVICES, INC. v. KOTHMANN May 6, 2011 In Re Universal Underwriters of Texas Inc. Co., No. 10-0238 (Tex. May 6, 2011)(Jefferson) Appraisal clauses, a common component of insurance contracts, spell out how parties will resolve disputes concerning a property’s value or the amount of a covered loss. When the parties disagree, but neither seeks appraisal until one has filed suit, has the party demanding appraisal waived its right to insist on the contractual procedure? Because we conclude that, absent conduct indicating waiver and a showing of prejudice, it has not, we conditionally grant relief. We have held that mandamus relief is appropriate to enforce an appraisal clause because denying the appraisal would vitiate the insurer’s right to defend its breach of contract claim. In re Allstate Cnty. Mut. Ins. Co., 85 S.W.3d 193, 196 (Tex. 2002). There, as here, “the parties . . . agreed in the contracts’ appraisal clause to the method by which to determine whether a breach has occurred,” and, if the appraisal determined that the full value was what the insurer offered, there would be no breach of contract. Id. The same is true here. We conditionally grant the writ of mandamus and direct the trial court to grant Universal’s motion to compel appraisal.5 See id. (holding that refusal to order appraisal would “den[y] the development of proof going to the heart of a party’s case and cannot be remedied by appeal”). We are confident the trial court will comply, and our writ will issue only if it does not. IN RE UNIVERSAL UNDERWRITERS OF TEXAS INSURANCE COMPANY; from Tarrant County; 2nd district (02-10-00013-CV, ___ SW3d ___, 03-23-10) stay order issued April 23, 2010 lifted The Court conditionally grants the writ of mandamus. Chief Justice Jefferson delivered the opinion of the Court. [pdf] (Justice Lehrmann not sitting) See Electronic Briefs in 10-0238 IN RE UNIVERSAL UNDERWRITERS OF TEX. INS. CO. (multiple amicus briefs) April 29, 2011 Travis County Appraisal Dist. v. Norman, No. 09-0100 (Tex. Apr. 29, 2011)(Medina) The Texas Anti-Retaliation Law, found in Chapter 451 of the Texas Labor Code, prohibits a person from discharging or discriminating against an employee, who in good faith files a workers’ compensation claim. See Tex. Lab. Code § 451.001 (1). This law applies to private employers. We have also held it to apply to the state’s political subdivisions through Chapter 504 of the Labor Code. See City of LaPorte v. Barfield, 898 S.W.2d 288, 298–99 (Tex. 1995) (holding that Chapter 504 waives the governmental immunity of political subdivisions for retaliatory discharge claims under Chapter 451). In this interlocutory appeal, a political subdivision of the state argues that Chapter 504 has been amended since our decision in Barfield and no longer waives a political subdivision’s immunity for retaliatory discharge claims under Chapter 451. We agree and conclude that our analysis of an earlier version of the Anti-Retaliation Law in Barfield is therefore not controlling. Because the court of appeals permitted the plaintiff’s claim to proceed, as Barfield would have, we must under the current law reverse the court of appeals’ judgment and dismiss the case. The waiver of governmental immunity must be clear and unambiguous, Tex. Gov’t Code § 311.034, and the current version of the Political Subdivisions Law is too internally inconsistent to satisfy that standard. We conclude then that the Political Subdivisions Law no longer waives immunity for retaliatory discharge claims under Chapter 451. Because a retaliatory discharge claim may not be brought against the government without its consent and the Political Subdivisions Law no longer provides such consent by waiving the government’s immunity, the underlying claim in this case must be dismissed. The court of appeals’ judgment is accordingly reversed, and the case is dismissed. TRAVIS CENTRAL APPRAISAL DISTRICT v. DIANE LEE NORMAN; from Travis County; 3rd district (03-06-00768-CV, 274 SW3d 902, 12-19-08) The Court reverses the court of appeals' judgment and dismisses the case. Justice Medina delivered the opinion of the Court. [pdf] See Electronic Briefs in 09-0100 TRAVIS CENT. APPRAISAL DIST. v. NORMAN Loftin v. Lee, No. 09-0313 (Tex. Apr. 29, 2011)(Hecht) The Texas Equine Activity Limitation of Liability Act limits liability for inherent risks of equine activity. This case raises two issues regarding the proper construction of the Act. One is whether risks are inherent in equine activity only if they relate to animal behavior or are otherwise unavoidable. As we read the Act, an inherent risk is one that, in its general character, is associated with activities involving equine animals. The other issue is whether the Act limits liability for failing to fully assess a person’s ability to participate in equine activity if that failure did not cause injury. We hold it does. We reverse the court of appeals’ judgment and render judgment for petitioner. As a matter of law, Loftin’s liability was limited by the Act, and the trial court properly granted summary judgment for Loftin. Therefore, the judgment of the court of appeals is reversed and judgment rendered that the Lees take nothing. TERRI LOFTIN v. JANICE LEE AND BOB LEE; from Angelina County; 12th district (12-07-00143-CV, 277 SW3d 519, 01-30- 09) The Court reverses the court of appeals' judgment and renders judgment. Justice Hecht delivered the opinion of the Court. [pdf] See Electronic Briefs in 09-0313 LOFTIN v. LEE Roccaforte v. Jefferson County, No. 09-0326 (Tex. Apr. 29, 2011)(Jefferson) The Local Government Code requires a person suing a county to give the county judge and the county or district attorney notice of the claim. Tex. Loc. Gov’t Code § 89.0041. The plaintiff provided that notice here, but did so by personal service of process, rather than registered or certified mail as the statute contemplates. We conclude that when the requisite county officials receive timely notice enabling them to answer and defend the claim, the case should not be dismissed. Because the court of appeals concluded otherwise, we reverse its judgment and remand the case to the trial court for further proceedings. LARRY ROCCAFORTE v. JEFFERSON COUNTY; from Jefferson County; 9th district (09-08-00420-CV, 281 SW3d 230, 03-05- 09) 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 Wainwright, Justice Medina, Justice Green, Justice Johnson, Justice Guzman, and Justice Lehrmann joined, and in which Justice Willett joined as to parts I through III. [pdf] Justice Willett delivered a concurring opinion. [pdf] See Electronic Briefs in 09-0326 ROCCAFORTE v. JEFFERSON COUNTY THE MOTIONS FOR REHEARING OF THE FOLLOWING CAUSES ARE DENIED: Turtle Healtcare Group, L.L.C. v. Linan, No. 09-0613 (Tex. Apr. 29, 2011)(per curiam)(rehearing denied) We issued an opinion in this case on February 25, 2011. We deny the motion for rehearing filed by respondents, the Linans, withdraw our prior opinion and issue this opinion in its place. At issue in this appeal is whether claims based on the failure of a ventilator can be brought both as claims subject to the Texas Medical Liability Act (TMLA) and claims not subject to the TMLA. We hold that under the record presented, they cannot; all the claims are subject to the TMLA and must be dismissed because no expert report was served. TURTLE HEALTHCARE GROUP, L.L.C. D/B/A FRED'S PHARMACY v. YOLANDA HIGUERA LINAN, INDIVIDUALLY AND AS THE NATURAL PARENT OF MARIA YOLANDA LINAN AND GERARDO LINAN, INDIVIDUALLY, AND AS REPRESENTATIVES OF THE ESTATE OF MARIA YOLANDA LINAN, DECEASED; from Hidalgo County; 13th district (13-08-00533-CV, ___ SW3d ___, 06-11-09) The Court withdraws its opinion issued February 25, 2011 and issues a substituted opinion. [pdf] See Electronic Briefs in 09-0613 TURTLE HEALTHCARE GROUP, L.L.C. D/B/A FRED'S PHARMACY v. LINAN ORDERS ON PETITIONS FOR REVIEW THE FOLLOWING PETITIONS FOR REVIEW ARE DENIED: Nueces County, Tx v. Ballesteros, No. 09-0561 (Tex. Apr. 29, 2011)(Willett dissent from denial of PFR) For reasons explained in my concurrence today in Roccaforte v. Jefferson County,1 I respectfully dissent from the Court’s denial of Nueces County’s petition for review. My view in Roccaforte is that Jefferson County effectively waived Roccaforte’s noncompliance with the mandatory post-suit notice requirements of Local Government Code Section 89.0041 by failing to raise it “as soon as possible.” As we have stated, “The failure of a non-jurisdictional requirement mandated by statute may result in the loss of a claim, but that failure must be timely asserted and compliance can be waived.” In Roccaforte, Jefferson County litigated for two-plus years before asserting defective notice, raising it only after limitations had expired. In this case, however, Nueces County immediately objected to Ballesteros’s noncompliance in both its plea to the jurisdiction and its motion to dismiss. Accordingly, I believe Nueces County was entitled to mandatory dismissal under Section 89.0041(c). NUECES COUNTY, TEXAS v. JOE GUADALUPE BALLESTEROS; from Nueces County; 13th district (13-06-00405-CV, 286 SW3d 566, 05-14-09) as redrafted Justice Willett dissents to the denial of the petition for review. [pdf] See Electronic Briefs in 09-0561 NUECES COUNTY, TEXAS v. BALLESTEROS April 15, 2011 Italian Cowboy Partners, Ltd., No. 08-0989 (Tex. Apr. 15, 2011)(by Green) We recognized decades ago that agreeing to a merger clause does not waive the right to sue for fraud should a party later discover that the representations it relied upon before signing the contract were fraudulent. See Dallas Farm Mach. Co. v. Reaves, 307 S.W.2d 233, 239 (Tex. 1957) (quoting Bates v. Southgate, 31 N.E.2d 551, 558 (Mass. 1941)). The principal issue in this case is whether disclaimer-of-representations language within a lease contract amounts to a standard merger clause, or also disclaims reliance on representations, thus negating an element of the petitioner’s claim for fraudulent inducement of that contract. We conclude that the contract language in this case does not disclaim reliance or bar a claim based on fraudulent inducement. Accordingly, we reverse the take-nothing judgment of the court of appeals and remand the case to that court for further proceedings consistent with this opinion. We render judgment in favor of the lessee on its claim for rescission premised on breach of the implied warranty of suitability. ITALIAN COWBOY PARTNERS, LTD., FRANCESCO SECCHI AND JANE SECCHI v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA AND FOUR PARTNERS, LLC D/B/A PRIZM PARTNERS AND D/B/A UNITED COMMERCIAL PROPERTY SERVICES; from Dallas County; 11th district (11-05-00264-CV, 270 SW3d 192, 07-24-08) The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to that court. Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Medina, Justice Johnson, and Justice Lehrmann joined. [pdf] Justice Hecht delivered a dissenting opinion, in which Justice Willett and Justice Guzman joined. [pdf] View Electronic Briefs 08-0989 ITALIAN COWBOY PARTNERS, LTD. v. THE PRUDENTIAL INS. CO. OF AMERICA Iliff v. Iliff, No. 09-0753 (Tex. Apr. 15, 2011)(Wainwright) (child support based on earning potential rather than actual income; voluntary unemployment or underemployment, intent element) Under the Texas Family Code, may a trial court calculate child support based on earning potential, rather than actual earnings, when the obligor is intentionally unemployed or underemployed, but there is no proof that the obligor’s unemployment or underemployment is for the purpose of avoiding child support? Because the language of Texas Family Code section 154.066 does not require such proof, we hold that intent to avoid child support need not be proven for the trial court to apply the child support guidelines to earning potential instead of actual earnings. However, a trial court may properly consider an obligor’s intent to avoid child support as a factor, along with other relevant facts, in an intentional unemployment or underemployment analysis. We affirm the judgment of the trial court and the court of appeals. JAMES DERWOOD ILIFF v. JERILYN TRIJE ILIFF; from Hays County; 3rd district (03-08-00382-CV, ___ SW3d ___, 07-21-09) The Court affirms the court of appeals' judgment. Justice Wainwright delivered the opinion of the Court. [pdf] View Electronic Briefs 09-0753 ILIFF v. ILIFF Allen Keller Co., No. 09-0955 (Tex. Apr. 15, 2011)(Lehrman) (premises liability, defective road condition, contractor no duty to warn or fix premises defect created in course of strict compliance with contract specifications for county construction project). In this case we are called upon to decide whether a general contractor owed a duty to a motorist who was killed as a result of an allegedly dangerous condition created by the contractor’s work. Because Allen Keller Company was working under a contract that required strict compliance and had no discretion to vary from its terms, we conclude that it had no duty to rectify the condition. In addition, because the premises were not under Allen Keller Company’s control at the time of the accident and the condition was known by the property owner, we conclude that Allen Keller Company owed no duty to warn either the public or the property owner. We reverse the judgment of the court of appeals and render judgment in favor of Keller. ALLEN KELLER COMPANY v. BARBARA JEAN FOREMAN, ET AL.; from Gillespie County; 4th district (04-08-00490-CV, ___ SW3d ___, 08-31-09) The Court reverses the court of appeals' judgment and renders judgment. Justice Lehrmann delivered the opinion of the Court. [pdf] View Electronic Briefs 09-0955 ALLEN KELLER CO. V. FOREMAN Tawes v. Barnes, No. 10-0581 (Tex. Apr. 15, 2011)(Green)(oil and gas law) In this case, which arose from an oil and gas lessor’s claim for unpaid royalties, we consider the construction and application of a Working Interest Unit Agreement (WIUA) and a Joint Operating Agreement (JOA). The issues come to us on certified questions from the United States Court of Appeals for the Fifth Circuit. The Fifth Circuit asks first whether the lessor here, either as a third-party beneficiary or through privity of estate, can enforce the WIUA and JOA to recover unpaid royalties from an investor who consented to the drilling of two wells on a pooled gas unit, but did not operate the wells. See In re Moose Oil & Gas Co., 613 F.3d 521, 531 (5th Cir. 2010). Pursuant to Article 5, Section 3-c of the Texas Constitution and Texas Rule of Appellate Procedure 58.1, we answer this question in the negative, and therefore do not reach the Fifth Circuit’s remaining certified questions. O. LEE TAWES, III v. DORIS BARNES, INDIVIDUALLY AND AS INDEPENDENT EXECUTRIX OF THE ESTATE OF LEON MCNAIR BARNES, DECEASED The Court answers the question certified by the United States Court of Appeals for the Fifth Circuit. Justice Green delivered the opinion of the Court. [pdf] View Electronic Briefs 10-0581 TAWES v. BARNES April 1, 2011 Basic Capital Management, Inc. v. Dynex Commercial, Inc., No. 08-0244 (Tex. Apr. 1, 2011)(Hecht) This is an action for breach of a commitment to provide financing for future real estate investments. The borrowers were to be entities that would be formed to hold each investment separately as opportunities arose. We hold that the corporate owners of those entities were third-party beneficiaries of the commitment, and that consequential damages for the lender’s breach of the commitment were foreseeable. We reverse the judgment of the court of appeals and remand the case to that court for further consideration. BASIC CAPITAL MANAGEMENT, INC., AMERICAN REALTY TRUST, INC., TRANSCONTINENTAL REALTY INVESTORS, INC., CONTINENTAL POYDRAS CORP., CONTINENTAL COMMON, INC., AND CONTINENTAL BARONNE, INC. v. DYNEX COMMERCIAL, INC. AND DYNEX CAPITAL, INC.; from Dallas County; 5th district (05-04-01358-CV, 254 SW3d 508, 02-22-08) motion for leave to amend petition for review dismissed as moot The Court reverses the court of appeals' judgment and remands the case to that court. Justice Hecht delivered the opinion of the Court. [14-page opinion in pdf] View Electronic Briefs In No. 08-0244 BASIC CAPITAL MANAGEMENT, INC. v. DYNEX COMMERCIAL, INC. Carreras, MD v. Marroquin, No. 09-0857 (Tex. Apr. 1, 2011) (Wainwright)(HCLC, presuit notice, no tolling) In this dispute, parents brought wrongful death claims against a physician who allegedly caused their adult child’s death. The parents attempted to toll the statute of limitations by sending pre-suit notice of their health care liability claims to the physician shortly before the statute of limitations ran, but failed to accompany it with an authorization form for the release of their daughter’s medical information as required by Chapter 74 of the Texas Civil Practice and Remedies Code. After the parents filed suit, the doctor moved for summary judgment, arguing that the notice alone did not toll the statute of limitations, and the suit therefore was untimely. The trial court denied the motion and entered an agreed order permitting appeal. See Tex. Civ. Prac. & Rem. Code § 51.014(d). The court of appeals affirmed the denial. 297 S.W.3d 420, 424 (Tex. App.—Corpus Christi- Edinburg 2009, pet. granted). Because we hold that Chapter 74 requires that an authorization form accompany the provision of notice for the statute of limitations to be tolled, we reverse and render. Accordingly, considering the text, history, and purpose of the statutes at issue, we conclude that for the statute of limitations to be tolled in a health care liability claim pursuant to Chapter 74, a plaintiff must provide both the statutorily required notice and the statutorily required authorization form. The Marroquins did not provide the statutorily required authorization form until after the statute of limitations expired, their claims were untimely, and the court of appeals erred in holding that Chapter 74 does not bar tolling of limitations when a plaintiff provides the required pre-suit notice without also providing the required medical authorization form. Accordingly, we reverse the judgment of the court of appeals and render judgment that the Marroquins take nothing. JOSE CARRERAS, M.D., P.A. v. CARLOS FRANCISCO MARROQUIN, ET AL.; from Hidalgo County; 13th district (13-09-00156- CV, 297 SW3d 420, 08-25-09) The Court reverses the court of appeals' judgment and renders judgment. Justice Wainwright delivered the opinion of the Court. [10-page opinion in pdf] View Electronic Briefs in Case No. 09-0857 JOSE CARRERAS, M.D., P.A. v. MARROQUIN Ellis v. Schlimmer, No. 10-0243 (Tex. Apr. 1, 2011) (per curiam)(FAA vs TAA, preemption issue) In this case, the court of appeals dismissed an interlocutory appeal of the trial court’s order denying the defendants’ motion to compel arbitration for want of jurisdiction because the movants failed to establish that the Federal Arbitration Act did not apply. ___ S.W.3d ___, ___. We reverse and remand to the court of appeals to consider the appeal’s merits. * * * In this case, while Ellis and Pacesetter did not specifically invoke the TAA in their motion to compel arbitration, their counsel specifically referred to it in the hearing on the motion. The burden was on the Schlimmers to show that some Texas state law or statutory requirement would prevent enforcement of the arbitration agreement under the TAA so that the FAA would preempt the Texas act. They did not raise any such defenses, nor did they question the agreement’s existence. Instead, they argued merely that the agreement did not cover the dispute, and that Ellis and Pacesetter had waived the right to arbitration or were estopped from enforcing it. The court of appeals’ decision erroneously placed the burden to establish the absence of any defenses to arbitration on Ellis and Pacesetter. Under these circumstances, its decision is contrary to the strong policy favoring arbitration. Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 56 (Tex. 2008). Accordingly, under Rule 59.1 of the Texas Rules of Appellate Procedure, without hearing oral argument, we reverse the court of appeals’ judgment and remand to that court to allow it to consider the appeal’s merits. VERONICA ELLIS AND PACESETTER BUILDERS, INC. D/B/A COLDWELL BANKER PACESETTER STEEL REALTORS v. DR. RON AND TANA SCHLIMMER; from Nueces County; 13th district (13-09-00426-CV, ___ SW3d ___, 01-28-10) 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 [4-page opinion in pdf] View Electronic Briefs in Case No. 10-0243 ELLIS v. DR. RON AND TANA SCHLIMMER MOTIONS FOR REHEARING DENIED WITH OPINION IN Exxon Corp. v. Emerald Oil & Gas Co. , No. 05-1076 (Tex. Apr. 1, 2011) (Wainwright) After issuing our opinion, we granted the parties’ motions for rehearing on November 20, 2009 and obtained further briefing from the parties. On December 17, 2010, we issued an opinion on rehearing and modified our judgment. Thereafter, the parties filed second motions for rehearing. Today, we deny the parties’ motions, but withdraw our opinion of December 17, 2010 and substitute the following opinion. Our judgment remains unchanged from the one issued December 17, 2010. We hold the royalty owners’ statutory and common law waste claims, and Emerald’s negligent misrepresentation and tortious interference claims are time-barred and reverse and render judgment for Exxon with respect to those claims. We also hold that the evidence conclusively establishes that Exxon satisfied its duty to develop the Field and reverse and render judgment for Exxon with respect to the breach of Lease claim. We affirm the court of appeals’ judgment, for different reasons, reversing the trial court’s directed verdict in favor of Exxon on Emerald’s fraud claim. Finally, we remand the case to the court of appeals (1) to consider the royalty owners’ claims for fraud, negligence, negligent misrepresentation, negligence per se, tortious interference with economic opportunity, and breach of regulatory duty to plug wells properly, and (2) to remand Emerald’s fraud claim to the trial court for further proceedings. EXXON CORPORATION AND EXXON TEXAS, INC. v. EMERALD OIL & GAS COMPANY, L.C. AND LAURIE T. MIESCH, ET AL.; from Refugio County; 13th district (13-00-00104-CV, 180 SW3d 299, 11-29-05) 2 motions for rehearing The Court's opinion of December 17, 2010 is withdrawn and the opinion of this date is substituted. The judgment, issued December 17, 2010, remains in place. The Court reverses and renders judgment, in part, and affirms, in part, the court of appeals' judgment, and remands the case to the court of appeals. Justice Wainwright delivered the opinion of the Court. [pdf] (Justice Guzman and Justice Lehrmann not sitting) View Electronic Briefs in Case No. 05-1076 EXXON CORP. v. EMERALD OIL & GAS CO. March 18, 2011 State of Texas v. PUC, No. 08-0421 (Tex. Mar. 18, 2011)(Willett)(PUC case) This complex case poses several vexing questions regarding Texas utility-deregulation laws and the Public Utility Commission’s application of those laws. In short, numerous parties — the State of Texas, utility companies, municipal groups, consumer groups, and others — challenge the Commission’s interpretations of various cost-recovery provisions in Chapter 39 of the Utilities Code. As detailed below, we affirm the court of appeals’ judgment in part, reverse it in part, and remand to the PUC for further proceedings consistent with this opinion. THE STATE OF TEXAS, ET AL. v. PUBLIC UTILITY COMMISSION OF TEXAS, ET AL.; from Travis County; 3rd district (03-05- 00557-CV, 252 SW3d 1, 04-17-08) 3 petitions The Court affirms in part and reverses in part the court of appeals' judgment, and remands the case to the Public Utility Commission. Justice Willett delivered the opinion of the Court. [pdf] View Electronic Briefs in No. 08-0421 THE STATE OF TEXAS v. PUBLIC UTILITY COMM'N OF TEXAS City of Houston v. Williams, No. 09-0770 (Tex. Mar 18, 2011) (Guzman)(governmental immunity) Section 271.152 of the Local Government Code, under certain circumstances, waives governmental immunity for suits alleging breach of a written contract. For a second time on interlocutory appeal, we review the City of Houston’s plea to the jurisdiction in a suit by 540 former Houston Firefighters.1 The Firefighters allege wrongful underpayment of lump sums due upon termination of their employment, but the City claims the Firefighters’ suit is barred by governmental immunity. At issue is whether the City’s immunity from suit is waived by section 271.152. The Firefighters point to three distinct writings they assert constitute qualifying written contracts under that section: (1) certain City of Houston Ordinances, (2) Chapter 143 of the Local Government Code, and (3) two Meet and Confer Agreements (MCAs) and a Collective Bargaining Agreement (CBA) (collectively, the Agreements) negotiated by the Houston Professional Fire Fighters Association (the Union) on behalf of the Firefighters with the City. We hold the Ordinances and Agreements constitute written contracts within the scope of section 271.152. But we conclude that Chapter 143, standing alone, does not establish a contract between the City and the Firefighters, and as such does not fall within the scope of section 271.152’s waiver of immunity. Accordingly, we affirm the court of appeals’ judgment in part, reverse in part, and remand the case to the trial court for further proceedings consistent with this opinion. THE CITY OF HOUSTON v. STEVE WILLIAMS, ET AL.; from Harris County; 14th district (14-08-00059-CV, 290 SW3d 260, 03- 31-09) 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 Guzman delivered the opinion of the Court. [pdf] View Electronic Briefs 09-0770 THE CITY OF HOUSTON v. WILLIAMS March 11, 2011 RR Comm'n v. Texas Citizens for a Safe Future and Clean Water, No. 08-0497 (Tex. Mar. 11, 2011) (Guzman)(water law) The Texas Water Code requires the Railroad Commission of Texas to weigh the “public interest” in the permitting of proposed oil and gas waste injection wells. In a ruling, the Commission declined to consider traffic-safety factors in its public interest inquiry. We determine whether the Commission’s interpretation of “public interest” is entitled to judicial deference. Because we conclude the Commission’s construction of the phrase was reasonable and in accord with the plain language of the statute, we hold the court of appeals erred in not deferring to the Commission’s interpretation. We therefore reverse the court of appeals’ judgment and render judgment for the petitioners in accordance with the trial court’s original judgment. The court of appeals failed to grant deference to the Commission’s interpretation of “public interest” in section 27.051(b)(1) of the Water Code and instead held the Commission abused its discretion in its construction of the statute. Because we conclude the Commission’s interpretation of the phrase “public interest” is reasonable and in accord with the plain meaning of the statute, we hold the court of appeals erred in refusing to defer to the Commission’s construction of the term. Accordingly, we reverse the court of appeals’ judgment and render judgment for the Commission and Pioneer in accordance with the trial court’s original judgment. RAILROAD COMMISSION OF TEXAS AND PIONEER EXPLORATION, LTD. v. TEXAS CITIZENS FOR A SAFE FUTURE AND CLEAN WATER AND JAMES G. POPP; from Travis County; 3rd district (03-07-00025-CV, 254 SW3d 492, 12-06-07) The Court reverses the court of appeals' judgment and renders judgment. Justice Guzman delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Medina, Justice Green, and Justice Johnson joined. [pdf] Chief Justice Jefferson delivered an opinion concurring in the judgment, in which Justice Willett and Justice Lehrmann joined. [pdf] View Electronic Briefs 08-0497 RAILROAD COMM'N OF TX v. TX CITIZENS FOR A SAFE FUTURE AND CLEAN WATER In re Rubiola, No. 09-0309 (Tex. Mar. 11, 2011)(Medina)(arbitration and non-signatories) In this original mandamus proceeding, Relators seek to compel arbitration under an arbitration agreement they did not sign. The real parties in interest, who are signatories to the arbitration agreement, object to arbitration and contend that Relators cannot compel arbitration because Relators are not parties to the arbitration agreement. The trial court apparently agreed because it denied Relators’ motion to compel arbitration. The underlying arbitration agreement, however, designated certain non-signatories as parties to the agreement. We conclude that signatories to an arbitration agreement may identify other parties in their agreement who may enforce arbitration as though they signed the agreement themselves. We further conclude that the underlying arbitration agreement in this case identified the Rubiolas as parties to the agreement and that they accordingly had the right to compel arbitration. Finally, we conclude that the trial court’s order denying arbitration is an abuse of discretion for which we conditionally grant Relators’ request for mandamus relief. Tex. R. App. P. 52.8(c). The writ will issue only if the trial court fails to enforce the arbitration agreement. IN RE JOSEPH CHARLES RUBIOLA, ET AL.; from Bexar County; 4th district (04-09-00115-CV, ___ SW3d ___, 03-04-09) stay order issued May 15, 2009, lifted The Court conditionally grants the writ of mandamus. Justice Medina delivered the opinion of the Court. [pdf] View Electronic Briefs 09-0309 IN RE JOSEPH CHARLES RUBIOLA Reid Road MUD No. 2. v. Speedy Stop Food Stores, Ltd., No. 09-0396 (Tex. Mar. 11, 2011)(Johnson) (eminent domain, determining value of condemned property) In this case we address two evidentiary questions. The first is whether an employee of the corporate general partner of a limited partnership qualifies to testify about the fair market value of partnership property under either the Property Owner Rule or Texas Rule of Evidence 701. The second is whether the condemning authority in a condemnation proceeding adopted the damages opinion of an appraiser by presenting the appraiser’s testimony and written appraisal in the special commissioners’ hearing. Under the record before us, we answer the first question “No,” the second question “Yes,” and affirm the judgment of the court of appeals. The trial court did not abuse its discretion by excluding the damages opinion LaBeff expressed in his affidavit. However, the court erred by excluding Ambrose’s testimony and appraisal as to Speedy Stop’s damages. We affirm the court of appeals’ judgment reversing the judgment of the trial court and remanding the case for further proceedings. REID ROAD MUNICIPAL UTILITY DISTRICT NO. 2 v. SPEEDY STOP FOOD STORES, LTD.; from Harris County; 14th district (14-07-00225-CV, 282 SW3d 652, 02-03-09) The Court affirms the court of appeals' judgment. Justice Johnson delivered the opinion of the Court. [pdf] Justice Willett delivered a concurring opinion, in which Justice Lehrmann joined. [pdf] (Justice Guzman not sitting) View Electronic Briefs 09-0396 REID ROAD MUNICIPAL UTILITY DIST. NO. 2 v. SPEEDY STOP FOOD STORES, LTD. Mitchell v. The Methodist Hospital, No. 10-0117 (Tex. Mar. 11, 2011) (per curiam) While this case has been pending on appeal, we have decided Samlowski v. Wooten, ___ S.W.3d ___ (Tex. 2011), explaining this Court’s views on requests to cure deficient expert reports under section 74.351(c). In light of Samlowski, we grant the Mitchells’ petition for review, and without hearing oral argument, reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings. Tex. R. App. P. 59.1. CHIQUITA MITCHELL, ET AL. v. THE METHODIST HOSPITAL, ET AL.; from Harris County; 1st district (01-08-00898-CV, ___ SW3d ___, 12-31-09) 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] View Electronic Briefs 10-0117 MITCHELL v. THE METHODIST HOSPITAL In re Commitment of Hill, No. 10-0280 (Tex. Mar. 11, 2011)(per curiam)(jury selection, peremptory challenge) A party selecting jurors for trial must be given latitude to intelligently use its peremptory challenges to seat a jury that, to the greatest extent possible, is free from bias. Here, because the trial court refused to allow two permissible lines of questioning, we reverse the court of appeals’ judgment upholding the trial court’s ruling and remand this case for a new trial. The trial court abused its discretion in rejecting these two lines of permissible questioning. Accordingly, without hearing oral argument, we grant the petition for review, reverse the court of appeals’ judgment, and remand the case to the trial court for a new trial. Tex. R. App. P. 59.1, 60.2(d). IN RE COMMITMENT OF SETH HILL; from Montgomery County; 9th district (09-08-00482-CV, 308 SW3d 465, 03-25-10) as redrafted 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] View Electronic Briefs in 10-0280 IN RE SETH HILL March 4, 2011 In Re Billy James Smith No.10-0048 (Tex. Mar. 4, 2011)(Medina)(mandamus granted)(compensation for wrongful imprisonment) Under the Texas Wrongful Imprisonment Act, which is now known as the Tim Cole1 Act, a wrongfully-imprisoned person may seek compensation from the state for the period of wrongful imprisonment. Tex. Civ. Prac. & Rem. Code § 103.001(a). Application is made to the Texas Comptroller of Public Accounts, who is authorized to determine eligibility and the amount owed to the claimant. Id. § 103.051(b). The amount owed is determined by multiplying a fixed amount, currently set at $80,000 per year, by the period of wrongful imprisonment. Id. § 103.052(a)(1). In calculating the wrongful-imprisonment period, the Act excludes any period for which the claimant was serving a concurrent sentence. Id. § 103.001(b). Relator, who was on parole at the time of his wrongful conviction, complains that he is entitled to additional compensation because the Comptroller erroneously applied the concurrent-sentence restriction to reduce his award. Relator submits that he would not have been imprisoned but for the wrongful conviction and that the resulting revocation of his parole should not be used to reduce his award. The Comptroller concluded that the concurrent-sentence restriction applied and reduced the claimant’s compensation accordingly. We do not agree that the concurrent-sentence restriction applies under these circumstances and conditionally grant the relator’s petition for mandamus relief. IN RE BILLY JAMES SMITH The Court conditionally grants the writ of mandamus. Justice Medina delivered the opinion of the Court. [pdf] View Electronic Briefs in 10-0048 IN RE BILLY JAMES SMITH February 25, 2011 Opinions Samlowski MD v. Wooten, Carol, No. 08-0667 (Tex. Feb. 25, 2011)(Medina) (HCLC deadline extension for expert report) Texas Civil Practice and Remedies Code section 74.351 requires that a trial court dismiss a health care liability claim unless the claimant serves an expert report within 120 days after filing suit. Tex. Civ. Prac. & Rem. Code § 74.351(b). This dismissal requirement is subject to the trial court’s discretion to grant one thirty-day extension for the claimant to cure a timely served but deficient report. Id. § 74.351(c). The trial court in this health care liability case determined that claimant’s timely served report was deficient and dismissed her suit without granting her request for an extension of time to cure the report. The court of appeals agreed the report was deficient but concluded the trial court abused its discretion by denying the requested extension. 282 S.W.3d 82, 91. We granted the petition to consider under what circumstances a trial court might abuse its discretion when denying such an extension. Like most cases involving trial court discretion, a single rule will not fit every situation, but generally a trial court should grant an extension when the deficient report can be cured within the thirty-day period the statute permits. The court of appeals concluded, among other things, that the case should be remanded to the trial court for further proceedings, and a majority of the Court agrees with that judgment. There is no majority reasoning for why we remand, however. Three members of the Court essentially agree with the court of appeals’ analysis, three members disagree with that analysis and would reverse and render, and three members disagree with the court of appeals’ analysis but would nevertheless remand in the interests of justice. I am in this last group. EBERHARD SAMLOWSKI, M.D. v. CAROL WOOTEN; from Johnson County; 10th district (10-07-00305-CV, 282 SW3d 82, 05- 21-08) The Court modifies the court of appeals' judgment and affirms that judgment as modified. Justice Medina announced the judgment of the Court and delivered an opinion, in which Chief Justice Jefferson and Justice Hecht joined. [12-page opinion in pdf] Justice Guzman filed an opinion concurring in the judgment, in which Justice Lehrmann joined and in which Justice Wainwright joined Parts I & II.B. [8-page opinion in pdf] Justice Wainwright delivered an opinion dissenting in part and concurring in the judgment. [6-page opinion in pdf] Justice Johnson delivered a dissenting opinion, in which Justice Green and Justice Willett joined. [12-page opinion in pdf] View Electronic Briefs in Case No. 08-0667 EBERHARD SAMLOWSKI, M.D. v. WOOTEN Stockton v. Offenbach, MD, No. 09-0446 (Tex. Feb. 25, 2011)(Medina)(HCLC, no extension of expert report filing deadline based on inability to promptly serve Defendant in person) Texas Civil Practice and Remedies Code section 74.351 requires that an expert report be served on each physician or health care provider against whom a health care liability claim is asserted. Tex. Civ. Prac. & Rem. Code § 74.351(a). The statute further directs the trial court to dismiss the health care liability claim if this report is not served within 120 days of the suit’s filing. Id. § 74.351(a), (b). In this appeal, the claimant argues that she was not able to serve the expert report within 120 days because the defendant physician could not be found. She further contends that she diligently searched for the physician and that a due diligence exception should apply to extend the statutory deadline or, alternatively, that the statute is unconstitutional as applied to her because it was impossible for her to comply with its deadline. The court of appeals concluded that the statute did not provide for an exception to its deadline under these circumstances and was not unconstitutional as applied to her. 285 S.W.3d 517. We agree and affirm. DEBBIE STOCKTON, AS PARENT AND NEXT FRIEND OF WILLIAM STOCKTON, A MINOR v. HOWARD A. OFFENBACH, M.D.; from Dallas County; 5th district (05-08-01185-CV, 285 SW3d 517, 03-11-09) The Court affirms the court of appeals' judgment. Justice Medina delivered the opinion of the Court. [15-page opinion in pdf] View Electronic Briefs in 09-0446 STOCKTON v. HOWARD A. OFFENBACH, M.D. Turtle Healthcare Group, LLC v. Linan, No. 09-0613 (Tex. Feb. 25, 2011)(per curiam) (HCLC, characterization of claim) At issue in this appeal is whether claims based on the failure of a ventilator can be brought both as claims subject to the Texas Medical Liability Act (TMLA) and claims not subject to the TMLA. We hold that under the record presented, they cannot; all the claims are subject to the TMLA and must be dismissed because no expert report was served. TURTLE HEALTHCARE GROUP, L.L.C. D/B/A FRED'S PHARMACY v. YOLANDA HIGUERA LINAN, INDIVIDUALLY AND AS THE NATURAL PARENT OF MARIA YOLANDA LINAN AND GERARDO LINAN, INDIVIDUALLY, AND AS REPRESENTATIVES OF THE ESTATE OF MARIA YOLANDA LINAN, DECEASED; from Hidalgo County; 13th district (13-08-00533-CV, ___ SW3d ___, 06-11-09) 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 the trial court. Per Curiam Opinion [6-page opinion in pdf] View Electronic Briefs in Case No. 09-0613 TURTLE HEALTHCARE GROUP, L.L.C. D/B/A FRED'S PHARMACY v. LINAN Burlington Northern and Santa Railway Co. v. National Union Fire Ins. Co., No. 10-0064 (Tex. Feb. 25, 2011) (per curiam)(insurance law, duty to defend, duty to indemnify) In this insurance coverage dispute The Burlington Northern and Santa Fe Railway Company (BNSF) sought a declaratory judgment that National Union Fire Insurance Company owed duties to defend and indemnify BNSF in a personal injury suit resulting from a collision between one of its trains and an automobile. The trial court granted National Union’s motion for summary judgment. The court of appeals affirmed. ___ S.W.3d ___. Because the court of appeals did not consider evidence extrinsic to the pleadings and insurance policy in determining whether National Union owed a duty to indemnify, we reverse the judgment of the court of appeals and remand the case to that court for further proceedings. THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY F/K/A THE ATCHISON, TOPEKA AND SANTA FE RAILWAY COMPANY v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, PA; from El Paso County; 8th district (08-06-00022-CV, ___ SW3d ___, 12-09-09) 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 [6-page opinion in pdf] View Electronic Briefs in Case No. 10-0064 THE BURLINGTON NORTHERN AND SANTA FE RAILWAY CO. v. NAT. UNION FIRE INS. CO. OF PITTSBURGH, PA January 28, 2011 In Interest of CHC, No. 09-0480 (Tex. Jan 28, 2011)(per curiam)(procedure for obtaining free record based on indigency) When a pro se party seeks to appeal a trial court’s decision and properly files a sufficient and unchallenged affidavit establishing indigency and requesting a free record on appeal, the Texas Rules of Appellate Procedure mandate that the party be provided the record. Because the affidavit in this case was not timely challenged, we reverse the court of appeals’ dismissal of this appeal and remand the case to the court of appeals for further proceedings. Because Hawkins established her indigence demonstrating her inability to pay costs on appeal, Hawkins was entitled to proceed with the appeal without costs. The court of appeals erred in dismissing her appeal for Hawkins’ failure to pay the docketing fee and provide a record. Therefore, without hearing oral argument, Tex. R. App. P. 59.1, we reverse the court of appeals’ judgment and remand to the court of appeals with instructions to accept Hawkins’ appeal without payment of the filing fee, order the preparation of Hawkins’ record at no cost, and consider the appeal on its merits. IN THE INTEREST OF C.H.C., A CHILD; from Dallas County; 5th district (05-09-00121-CV, ___SW3d ___, 07-28-09) 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 [9-page opinion in pdf] View Electronic Briefs 09-0480 IN THE INTEREST OF C.H.C., A CHILD Opinions released January 21, 2011 Nealon, MD v. Williams, No. 06-0752 (Tex. Jan 21, 2011)(per curiam) While this case has been pending on appeal, we have decided Franka v. Velasquez, ___ S.W.3d ___ (Tex. 2011), holding that, for purposes of section 101.106(f), a tort action is brought “under” the Texas Tort Claims Act, even if the government has not waived its immunity for such actions. ___ S.W.3d at ___. In light of Franka, we grant Nealon’s and Walser’s petition for review, and without hearing oral argument, reverse the court of appeals’ judgment and remand the case to the court of appeals for further proceedings. Tex. R. App. P. 59.1. WILLIAM H. NEALON, M.D. AND ERIC M. WALSER, M.D. v. HARRY WILLIAMS; from Galveston County; 1st district (01-05- 00553-CV, 199 SW3d 462, 07-13-06) 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 [2-page opinion in pdf] View Electronic Briefs in 06-0752 WILLIAM H. NEALON, M.D. v. WILLIAMS Franka MD v. Velasquez, No. 07-0131 (Tex. Jan 21, 2011)(Hecht)(TTCA, HCLC, government employee vs governmental entity) Section 101.106(f) of the Texas Tort Claims Act provides that a suit against a government employee acting within the general scope of his employment must be dismissed “if it could have been brought under this chapter [that is, under the Act] against the governmental unit”.1 The court of appeals construed the quoted clause to mean that, to be entitled to dismissal, the employee must establish that governmental immunity from suit has been waived by the Act.2 But as we stated in Mission Consolidated Independent School District v. Garcia: “we have never interpreted ‘under this chapter’ to only encompass tort claims for which the Tort Claims Act waives immunity.”3 Rather, “all [common-law] tort theories alleged against a governmental unit . . . are assumed to be ‘under [the Tort Claims Act]’ for purposes of section 101.106.”4 Accordingly, we reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings. [...] we hold that for section 101.106(f), suit “could have been brought” under the Act against the government regardless of whether the Act waives immunity from suit. We reverse the judgment of the court of appeals and remand to the trial court for further proceedings. JOHN CHRISTOPHER FRANKA, M.D. AND NAGAKRISHNA REDDY, M.D. v. STACEY VELASQUEZ AND SARAGOSA ALANIZ, INDIVIDUALLY AND AS NEXT FRIENDS OF THEIR MINOR CHILD, SARAGOSA MARIO ALANIZ; from Bexar County; 4th district (04-06-00190-CV, 216 SW3d 409, 09-06-06) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Hecht delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Green, Justice Johnson, and Justice Willett joined. [28 page opinion in pdf] Justice Medina delivered a dissenting opinion, in which Justice Lehrmann joined. [21-page opinion in pdf] (Justice Guzman not sitting) View Electronic Briefs 07-0131 FRANKA, M.D. and NAGAKRISHNA REDDY, M.D. v. VELASQUEZ Clark, RN v. Sell, No. 07-0647 (Tex. Jan. 21, 2011)(per curiam) While this case has been pending on appeal, we have decided Franka v. Velasquez, ___ S.W.3d ___ (Tex. 2011), holding among other things that, for purposes of section 101.106(f), a tort action is brought “under” the Texas Tort Claims Act, even if the government has not waived its immunity for such actions. ___ S.W.3d at ___. In light of Franka, we grant Clark, Rodriguez and Ortiz’s petition for review, and without hearing oral argument, reverse the court of appeals’ judgment and remand the case to the court of appeals for further proceedings. Tex. R. App. P. 59.1. EVELYN CLARK, R.N., ROSEANNE RODRIGUEZ, MHS, AND ELIZABETH ORTIZ, MAS v. CYNTHIA SELL, ON BEHALF OF MITCHELL RAY SELL; from Lubbock County; 7th district (07-07-00049-CV, 228 SW3d 873, 06-27-07) 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 [2 page opinion in pdf] View Electronic Briefs in 07-0647 EVELYN CLARK, R.N. v. SELL Escalante MD v. Rowan, No. 08-0248 (Tex Jan. 21, 2011)(per curiam) While this case has been pending on appeal, we have decided Franka v. Velasquez, ___ S.W.3d ___ (Tex. 2011), holding among other things that, for purposes of section 101.106(f), a tort action is brought “under” the Texas Tort Claims Act, even if the government has not waived its immunity for such actions. ___ S.W.3d at ___. In light of Franka, we grant the doctors’ petition for review, and without hearing oral argument, reverse the court of appeals’ judgment and remand the case to the court of appeals for further proceedings. Tex. R. App. P. 59.1. CARMELITA P. ESCALANTE, M.D., E. EDMUND KIM, M.D., EDGARDO RIVERA, M.D., AND FRANKLIN C. WONG, M.D. v. DONITA ROWAN AND JAMES NIESE; from Harris County; 14th district (14-05-00828-CV&14-06-00197-CV, 251 SW3d 720, 01- 22-08) 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 that court. Per Curiam Opinion [2 page opinion in pdf] View Electronic Briefs in No. 08-0248 CARMELITA P. ESCALANTE, M.D. v. ROWAN UTHSC at San Antonio v. Bailey, No. 08-0419 (Tex. Jan. 21, 2011)(Hecht) University of Texas Health Science Center v. Bailey, Tex: Supreme Court 2011 Section 101.106(f) of the Texas Tort Claims Act allows a plaintiff who has sued a government employee in what is considered to be his official capacity to avoid dismissal of the action by substituting the governmental employer as a defendant. The question in this case is whether action against the substituted defendant is barred after limitations has run. The court of appeals answered no.2 We agree, though for somewhat different reasons. Under section 101.106(f), the Baileys’ suit against Sanders was, in all respects other than name, a suit against the Center. In requiring a government employer to be substituted on the employee’s motion, the statute is silent on whether the employer may complain of prejudice from the delay in being named a party. In this case, the Center has made no such complaint. When the Center was substituted as the defendant in Sanders’ place, there was no change in the real party in interest. Consequently, the Center cannot prevail on its defense of limitations. For these reasons, the court of appeals’ judgment is Affirmed. THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT SAN ANTONIO v. KIA BAILEY AND LARRY BAILEY; from Bexar County; 4th district (04-07-00323-CV, 261 SW3d 147, 04-16-08) The Court affirms the court of appeals' judgment. Justice Hecht delivered the opinion of the Court. [10-page opinion in pdf] View Electronic Briefs in 08-0419 UNIV. OF TX HEALTH SCIENCE CENTER AT SAN ANTONIO v. BAILEY Molinet v. Kimbrell, MD, No. 09-0544 (Tex. Jan. 21, 2011)(Johnson)(HCLC limitations, SoL, responsible 3rd parties) In this case we consider a statutory conflict regarding whether limitations bars Jeremy Molinet’s health care liability claims against two doctors he sued after they had been designated as responsible third parties pursuant to Texas Civil Practice and Remedies Code section 33.004. See Tex. Civ. Prac. & Rem. Code § 33.004.1 Molinet joined the doctors as defendants within sixty days after they were designated as responsible third parties but more than two years after they last treated him. Section 33.004(e) provides that if a defendant designates a responsible third party the claimant may, within sixty days, join the designated party “even though such joinder would otherwise be barred by limitations.” Id. However, section 74.251(a) provides a two-year limitations period for health care liability claims that applies “[n]otwithstanding any other law,” and section 74.002(a) provides that chapter 74 controls in the event its provisions conflict with other law. See id. §§ 74.251(a), 74.002(a). We hold that section 74.251(a) prevails and Molinet’s claims against the doctors are barred by its two-year limitations period. [...] The court of appeals correctly concluded that section 74.251(a) bars Molinet’s suit against Drs. Horan and Kimbrell. Accordingly, we affirm the court of appeals’ judgment. JEREMY MOLINET v. PATRICK KIMBRELL, M.D. AND JOHN HORAN, M.D.; from Bexar County; 4th district (04-08-00379-CV, 288 SW3d 464, 12-31-08) The Court affirms the court of appeals' judgment. Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Green, Justice Willett, and Justice Guzman joined. [16-page opinion in pdf] Justice Lehrmann delivered a dissenting opinion, in which Justice Medina joined. [9 page opinion in pdf] View Electronic Briefs in 09-0544 MOLINET v. PATRICK KIMBRELL, M.D Terry Leonard, PA v. Glenn, No. 09-0665 (Tex. Jan. 21, 2011)(per curiam) While this case has been pending on appeal, we have decided Franka v. Velasquez, ___ S.W.3d ___ (Tex. 2011), holding among other things that, for purposes of Tex. Civ. Prac. & Rem. Code § 101.106(f), a tort action is brought “under” the Texas Tort Claims Act, even if the government has not waived its immunity for such actions. ___ S.W.3d at ___. In light of Franka, we grant Leonard’s and Hain’s petition for review and without hearing oral argument, reverse the court of appeals’ judgment and remand the case to the court of appeals for further proceedings. Tex. R. App. P. 59.1. TERRY LEONARD, P.A. AND APRIL DAWN HAIN, M.D. v. ANDRE GLENN; from Bexar County; 4th district (04-08-00200-CV, 293 SW3d 669, 05-20-09) 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 [2 page opinion in pdf] View Electronic Briefs in 09-0665 TERRY LEONARD, P.A. v. GLENN Rosemond v. Al-Lahiq, MD, No. 09-0830 (Tex. Jan. 21, 2011)(per curiam) In the underlying suit, a physician filed three motions to dismiss, each alleging the plaintiff’s failure to comply with the expert report requirements of section 74.351 of the Texas Civil Practice and Remedies Code. Two of the motions were premised on timeliness objections and one on adequacy. The trial court dismissed the plaintiff’s claims by signing an order attached to the motion attacking the report’s adequacy. The court of appeals affirmed, implying a finding that the report was not timely served as required by section 74.351(a). We conclude the court of appeals erred when it implied such a finding because (1) that finding was not necessary to support the judgment, and (2) the trial court implicitly overruled the motions asserting untimely service. We accordingly reverse the court of appeals’ judgment and remand the case to that court to review the remaining basis for dismissal: the report’s adequacy under section 74.351(l), (r)(6). ULYSSES L. ROSEMOND v. MAHA KHALIFA AL-LAHIQ, M.D.; from Harris County; 14th district (14-08-00550-CV, ___ SW3d ___, 08-04-09) 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 [7-page opinion in pdf] View Electronic Briefs in 09-0830 ROSEMOND v. MAHA KHADIFA ALI-LAHIQ, M.D. Romero, MD v. Lieberman, No. 10-0134 (Tex. Jan 21, 2011)(per curiam) While this case has been pending on appeal, we have decided Franka v. Velasquez, ___ S.W.3d ___ (Tex. 2011), holding that, for purposes of section 101.106(f), a tort action is brought “under” the Texas Tort Claims Act, even if the government has not waived its immunity for such actions. ___ S.W.3d at ___. In light of Franka, we grant the doctors’ petition for review, and without hearing oral argument, reverse the court of appeals’ judgment and remand the case to the court of appeals for further proceedings. Tex. R. App. P. 59.1. CESAR ROMERO, M.D., ANTHONY CLAXTON, M.D., AND DAVID KORMAN, M.D. v. JACOB LIEBERMAN ON BEHALF OF THE ESTATE OF LARRY LIEBERMAN, DECEASED; from Kaufman County; 5th district (05-08-01636-CV, ___ SW3d ___, 11-03-09) 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 [2-page opinion in pdf] View Electronic Briefs in Case No. 10-0134 CESAR ROMERO, M.D. v. LIEBERMAN Reedy, RN v. Pompa, No. 10-0306 (Tex. Jan. 21, 2011)(per curiam) While this case has been pending on appeal, we have decided Franka v. Velasquez, ___ S.W.3d ___ (Tex. 2011), holding among other things that, for purposes of section 101.106(f), a tort action is brought “under” the Texas Tort Claims Act, even if the government has not waived its immunity for such actions. ___ S.W.3d at ___. In light of Franka, we grant Reedy’s petition for review, and without hearing oral argument, reverse the court of appeals’ judgment and remand the case to the court of appeals for further proceedings. Tex. R. App. P. 59.1. WILMA REEDY, R.N. v. ELIZABETH POMPA AND NICHOLAS POMPA, III, AS PARENTS AND NEXT FRIENDS OF ANNICA POMPA, A MINOR; from De Witt County; 13th district (13-08-00590-CV, 310 SW3d 112, 03-18-10) 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 [2-page opinion in pdf] View Electronic Briefs in No. 10-0306 WILMA REEDY, R.N. v. POMPA January 14, 2011 Pearson v. Fillingim, No. 10-0013 (Tex. Jan 14, 2011)(per curiam)(divorce property division dispute) In this dispute over the division of property in a divorce decree, we must decide whether the trial court impermissibly reclassified an asset originally divided in a 1981 divorce decree. For the reasons expressed below, we hold that it did. The trial court lacked jurisdiction to alter the original divorce decree, and the court of appeals erred in affirming the trial court’s declaration that the deeds were Dan’s separate property. Accordingly, and without hearing oral argument, Tex. R. App. P. 59.1, we reverse the court of appeals’ judgment and render judgment dismissing Dan’s claims for want of jurisdiction. RITA LACKEY FILLINGIM PEARSON v. WILLIS DAN FILLINGIM; from Hemphill County; 7th district (07-08-00144-CV, ___ SW3d ___, 03-24-09) 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 [6-page opinion in pdf] View Electronic Briefs in 10-0013 PEARSON v. FILLINGIM |