2011 TEXAS SUPREME COURT CASES
DECIDED WITH OPINIONS
DECIDED WITH OPINIONS
July-December 2011 Texas Supreme Court Opinions including Dissents (in reverse chronologicial order) Also see ---> January - June 2011 Texas Supreme Court Opinions 2010 Texas Supreme Court Opinions 2009 Texas Supreme Court Opinions LAST UPDATED: 12/20/2011 Opinions Issued December 16, 2011 City of Dallas v. Parker, No. 07-0288 (Tex. Dec. 16, 2011)(Opinion by Phil Johnson) (public employment, immunity of governmental entities) This appeal involves issues of governmental immunity from suit. With the exception that this matter is a class action, which does not affect our analysis or conclusions, and one argument that we address separately, the material facts, procedural background, issues, and arguments presented are similar to those we considered in City of Dallas v. Albert, ___ S.W.3d ___ (Tex. 2011). Thus, our conclusions and holdings are the same as those in Albert. In addition to arguments made in Albert and addressed above, the Officers in this case assert that the City’s immunity from suit is waived because the suit implicitly involves the validity of pay resolutions adopted by the city council. See TEX. CIV. PRAC. & REM. CODE § 37.006(b) (“In any proceeding that involves the validity of a municipal ordinance . . . the municipality must be made a party . . . .”). However, the Officers’ pleadings do not support this contention. Their pleadings reference the ordinance as having become a term of their employment contracts and two resolutions as possible bases for calculating their damages. They do not question the validity of either the ordinance or a resolution. We reverse the judgment of the court of appeals and remand the case to the trial court for further proceedings. CITY OF DALLAS v. DAVID S. MARTIN AND GEORGE G. PARKER, ET AL.; from Rockwall County; 5th district (05-03-01310-CV, 214 SW3d 638, 12-21-06) 2 petitions The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Phil Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice David Medina, Justice Paul Green, Justice Eva Guzman, and Justice Lehrmann joined. Justice Willett delivered a dissenting opinion Link to Electronic Briefs in this case, including amicus brief by State of Texas: 07-0288 CITY OF DALLAS v. MARTIN Lowell v. City of Baytown, TX, No. 07-1011 (Tex. Dec. 16, 2011)(per curiam opinion)(firefighter litigation, governmental entities, no immunity to claim prospective injunctive relief brought against government official in official capacity) Petitioners are firefighters for the City of Baytown. They sued the City, claiming that it improperly calculated pay for certain assignments in violation of the Firefighter and Police Civil Services Act. The firefighters sought declaratory and injunctive relief, as well as “all pay and benefits lost as a result of Defendant’s failure to properly pay Plaintiffs during temporary assignment of higher-classified duties.” The firefighters also requested prejudgment interest on back pay, attorney’s fees, costs, and postjudgment interest. The City filed a jurisdictional plea asserting governmental immunity, which the trial court granted. The court of appeals also reversed the trial court’s judgment dismissing the firefighters’ claims for prospective declaratory and injunctive relief, holding that such claims did not implicate governmental immunity. Although the court of appeals correctly concluded that immunity does not preclude certain prospective claims, we recently held that such actions must be brought against the relevant government officials, rather than the governmental entity itself. See Heinrich, 284 S.W.3d at 373 (observing that “these suits cannot be brought against the state, which retains immunity, but must be brought against the state actors in their official capacity. This is true even though the suit is, for all practical purposes, against the state.”). Here, the firefighters named the City rather than city officials in their official capacity as Heinrich requires, but their pleading predated Heinrich. In addition to remanding to permit the firefighters to replead in light of chapter 271, our remand will also permit the firefighters to replead in light of Heinrich and seek appropriate relief, if any, against the relevant city officials. Accordingly, we grant the firefighters’ 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 consistent with this opinion. TEX. R. APP. P. 59.1, 60.2(d). KEITH LOWELL, ET AL. v. CITY OF BAYTOWN, TEXAS; from Harris County; 1st district (01-04-00548-CV, 264 SW3d 31, 08-09- 07) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion Link to Electronic Briefs in this case 07-1011 LOWELL v. CITY OF BAYTOWN, TEXAS Minton v. Gunn, No. 10-0141 (Tex. Dec. 16, 2011)(patent litigation) (Opinion by Paul Green) This case arises out of patent infringement litigation. We consider whether federal courts possess exclusive subject-matter jurisdiction over state-based legal malpractice claims that require the application of federal patent law. The federal patent issue presented here is necessary, disputed, and substantial within the context of the overlying state legal malpractice lawsuit. Additionally, the patent issue may be determined without creating a jurisdictional imbalance between state and federal courts. We conclude that exclusive federal jurisdiction exists in this case. Accordingly, without reaching the merits of the legal malpractice claim, we reverse the court of appeals’ judgment and dismiss this case. CONCLUSION Because we determine that the application of the experimental use exception to the on-sale bar is a necessary, disputed, and substantial element of Minton’s state-based legal malpractice claim, and because the federal courts are capable of addressing this issue without disrupting the jurisdictional balance existing between state and federal courts, we hold that Minton’s claim has triggered exclusive federal patent jurisdiction. Accordingly, we do not reach the merits of Minton’s claims, and we reverse the court of appeals’ judgment and dismiss the case. VERNON F. MINTON v. JERRY W. GUNN, INDIVIDUALLY, WILLIAMS SQUIRE & WREN, L.L.P., JAMES E. WREN, INDIVIDUALLY, SLUSSER & FROST, L.L.P., WILLIAM C. SLUSSER, INDIVIDUALLY, SLUSSER WILSON & PARTRIDGE, L.L.P., AND MICHAEL E. WILSON, INDIVIDUALLY; from Tarrant County; 2nd district (02-06-00443-CV, 301 SW3d 702, 10-08-09) The Court reverses the court of appeals' judgment and dismisses the case. Justice Paul Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Phil Johnson , and Justice Lehrmann joined. Justice Eva Guzman delivered a dissenting opinion, in which Justice David Medina and Justice Willett joined. (Justice Hecht not sitting) Link to Electronic Briefs in this case, incl. amicus brief: 10-0141 MINTON v. GUNN In Re SCI, No. 10-0155 (Tex. Dec. 16, 2011)(per curiam opinion)(arbitration, procedure to select arbitrator) This mandamus proceeding arises from an arbitration agreement governed by the Federal Arbitration Act (FAA). The parties entered into a contract for interment rights and services. The contract obligated the parties to arbitrate this dispute over the care and maintenance of the cemetery. The arbitration agreement provides that an arbitrator would either be selected by mutual agreement of the parties or appointed by the American Arbitration Association (AAA). The parties failed to agree to an arbitrator and the trial court appointed an arbitrator without allowing a reasonable opportunity to procure an appointment by AAA. We conclude that the trial court abused its discretion and conditionally grant the petition for writ of mandamus. We conclude that the contract is not ambiguous on this point. If the parties cannot agree on an arbitrator, the contract requires that they use AAA to appoint the arbitrator. IN RE SERVICE CORPORATION INTERNATIONAL AND SCI TEXAS FUNERAL SERVICES, INC. D/B/A MAGIC VALLEY MEMORIAL GARDENS; from Hidalgo County; 13th district (13-09-00681-CV, ___ SW3d ___, 02-17-10) stay order issued March 12, 2010, lifted Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the writ of mandamus. Per Curiam Opinion Links to Electronic Briefs in this case 10-0155 IN RE SERVICE CORP. INT'L In re Service Corp. Inc., No. 10-0158 (Tex. Dec. 16, 2011)(per curiam opinion) (appointment of arbitrator based on agreement on method, rather than selection by the trial court judge) (mandamus granted) IN RE SERVICE CORPORATION INTERNATIONAL AND SCI TEXAS FUNERAL SERVICES, INC., JOINTLY D/B/A MONT META MEMORIAL GARDENS; from Cameron County; 13th district (13-10-00026-CV, ___ SW3d ___, 02-23-10) Norma Sandoval and her sister, Nora Martinez, jointly filed suit against Service Corporation International (SCI) alleging fraud, deceptive trade practices, and other tort claims arising from their respective interment rights and services contracts for family burial plots at Mont Meta Memorial Park.1 The parties agree the dispute was required to be arbitrated pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1-16. SCI asserts that the trial court’s appointment of an arbitrator interfered with the contractual rights of the parties and was not authorized by the Federal Arbitration Act. Without reaching the parties’ arguments as to which party or parties have the burden of approaching the AAA to appoint an arbitrator, we agree with SCI that the trial court’s appointment was an abuse of discretion from which there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36 (Tex. 2004). In a related case also decided today, In re Service Corp. International & SCI Tex. Funeral Services, Inc. d/b/a Magic Valley Memorial Gardens, we analyzed an identical arbitration provision. __ S.W.3d __ (Tex. 2011). Following the rationale in Magic Valley Memorial Gardens, we conclude the trial court abused its discretion by appointing an arbitrator instead of following the agreed-upon method of selection outlined in the contract. As a matter of law, the two month delay in the selection of an arbitrator in this case, by itself, does not establish a lapse or failure of the parties to avail themselves of the contractual selection method. See 9 U.S.C. § 5; Magic Valley Memorial Gardens, __ S.W.3d __ (Tex. 2011). Accordingly, without hearing oral argument, we conditionally grant SCI’s petition for writ of mandamus and direct the trial court to vacate its prior order appointing David Calvillo as arbitrator. TEX. R.APP. P. 59.1, 52.8(c). We are confident the trial court will comply, and the writ will issue only if it fails to do so. OPINION DELIVERED: December 16, 2011 Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the writ of mandamus. Per Curiam Opinion Link to Electronic Briefs in this case 10-0158 IN RE SERVICE CORP. INT'L Etan Industries, Inc. v. Lehmann, No. 10-0318 (Tex. Dec. 16, 2011)(per curiam opinion) (limitations bar, propriety of declaratory relief, award of attorney's fees on declaratory judgment claim, mootness doctrine) Defendant Etan Industries, Inc. contends that the tort claims against it are barred by the two year statute of limitations. It also argues that the declaratory judgment against it was unwarranted. We agree and accordingly reverse and render judgment for Etan. We agree with Etan that the Lehmanns’ common-law tort claims were barred by limitations. Etan argues that the claims for declaratory judgment were moot because Etan had removed its lines from the Lehmanns’ properties prior to trial. We agree. We have recently noted that a request for declaratory judgment is moot if the claim presents “no live controversy.” Tex. A & M Univ.-Kingsville v. Yarbrough, 347 S.W.3d 289, 290 (Tex. 2011). ETAN INDUSTRIES, INC. AND ETAN INDUSTRIES, INC., D/B/A CMA CABLEVISION AND/OR CMA COMMUNICATIONS v. RONALD LEHMANN AND DANA LEHMANN; from Lee County; 3rd district (03-07-00539-CV, 308 SW3d 489, 03-26-10) 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 renders judgment. Per Curiam Opinion Link to Electronic Briefs in this case incl amicus brief by Texas Cable Association: 10-0318 ETAN INDUSTRIES, INC. v. LEHMANN Shell Oil Co. v. Ross, No. 10-0429 (Tex. Dec. 16, 2011)(Opinion by Lehrmann) (oil, gas and natural resources law, limitations and discovery rule, fraudulent concealment, accrual of cause of action, starting date for running of limitations) This case involves a dispute concerning alleged underpayments of gas royalty. We must decide whether limitations barred a royalty owner’s claims against the operator of the field. We hold that the fraudulent concealment doctrine does not apply to extend limitations as a matter of law when the royalty underpayments could have been discovered from readily accessible and publicly available information before the limitations period expired. When, as in this case, the information was publicly available and readily accessible to the royalty owner during the applicable time period, a royalty owner who fails to take action does not use reasonable diligence as a matter of law. It has long been the law that the discovery rule does not apply to defer the accrual of royalty owners’ claims for underpayments when the injury could have been discovered through the exercise of due diligence. Accordingly, because the parties do not dispute that the pertinent information was readily accessible and publicly available, the royalty owner’s claims are time-barred as a matter of law. Conclusion We hold that evidence conclusively established that Shell’s alleged fraud could have been discovered by the Rosses through the exercise of reasonable diligence. Accordingly, we reverse the court of appeals’ judgment and render judgment for Shell. SHELL OIL COMPANY; SWEPI LP D/B/A SHELL WESTERN E&P, SUCCESSOR IN INTEREST TO SHELL WESTERN E&P, INC. v. RALPH ROSS; from Harris County; 1st district (01-08-00713-CV, ___ SW3d ___, 02-25-10) The Court reverses the court of appeals' judgment and renders judgment. Justice Lehrmann delivered the opinion of the Court. Link to Electronic Briefs in this case, including multiple amicus briefs: 10-0429 SHELL OIL CO. v. ROSS Americo Life, Inc. v. Myer, No. 10-0734 (Tex. Dec. 16, 2011)(per curiam) (selection of arbitrators on panel, neutrality of chosen arbitrator) This case concerns an arbitration provision that allows each party to appoint one arbitrator to a panel, subject to certain requirements. At issue is whether Americo Life, Inc. waived its objection to the removal of the arbitrator it selected. The underlying dispute concerned the financing mechanism for Americo’s purchase of several insurance companies from Robert Myer.1 Pursuant to the financing agreement, Americo and Myer submitted their dispute to arbitration under American Arbitration Association (AAA) rules. The arbitrators found in favor of Myer, and Americo filed a The court of appeals is correct that Americo did not expressly state that arbitrators were not required to be neutral. 315 S.W.3d at 75–76. However, Americo argued that the AAA requirements did not apply, that the only applicable requirements were that they be knowledgeable and independent businesspersons or professionals, and that Figari met these qualifications. Americo properly preserved this argument. Therefore, without hearing oral argument, TEX. R.APP. P. 59.1, we reverse the court of appeals’ judgment and remand the case to the court of appeals for further proceedings consistent with this opinion. AMERICO LIFE, INC., AMERICO FINANCIAL LIFE AND ANNUITY INSURANCE COMPANY, GREAT SOUTHERN LIFE INSURANCE COMPANY, THE OHIO STATE LIFE INSURANCE COMPANY, AND NATIONAL FARMERS' UNION LIFE INSURANCE COMPANY v. ROBERT L. MYER AND STRIDER MARKETING GROUP, INC.; from Dallas County; 5th district (05- 08-01053-CV, 315 SW3d 72, 10-22-09) 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 Link to Electronic Briefs in this case: 10-0734 AMERICO LIFE, INC. v. MYER In re Jeffrey Cook, No. 10-0855 (Tex. Dec. 16, 2011)(per curiam opinion) (reason for grant of new trial required, even if original trial court judge replaced)(mandamus granted). The relator asks us to decide whether a trial court abused its discretion when it issued an order granting a motion for new trial “based on all grounds in the motion.” While this case was pending, however, the judge who signed the order resigned, and we remanded the case pursuant to Texas Rule of Appellate Procedure 7.2(b). The successor trial judge then entered an order stating only that his predecessor’s ruling “should remain unchanged.” We recently held that a successor trial court’s order reaffirming the original trial court’s grant of a motion for new trial was “effectively an order refusing to enter judgment on the jury verdict and affects the rights of the parties no less than did the orders of the original judge,” and we concluded that the relator in that case was “entitled to know those reasons just as much as it would be entitled to know the reasons for the orders entered by the former trial judge.” In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 214 (Tex. 2009). Accordingly, we conditionally granted mandamus relief, directing the successor trial court to specify the reasons it refused to enter judgment on the jury verdict and ordered a new trial. Id. at 215. Because the successor trial court judge in this case did not state sufficient reasons for his ruling, contrary to our holding in In re Columbia, we conditionally grant relief. Without hearing oral argument, TEX. R. APP. P. 52.8(c), we conditionally grant Jeffrey’s petition for writ of mandamus and direct the successor trial court to specify the reasons why it refused to enter judgment on the jury verdict. See In re Columbia, 290 S.W.3d at 215 (requiring reasons to be “clearly identified and reasonably specific”). We are confident that the trial court will comply, and our writ will issue only if it does not. IN RE JEFFREY COOK; from Tarrant County; 2nd district (02-10-00068-CV, ___ SW3d ___, 06-08-10) Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the writ of mandamus. Per Curiam Opinion (Justice Lehrmann not sitting) Link to Electronic Briefs in this case: 10-0855 IN RE JEFFREY COOK Ryland Enterprise, Inc. v. Weatherspoon, No. 11-0189 (Tex. Dec. 16, 2011)(per curiam)(appellate procedure, timeliness of appeal, extension of deadline to file notice of appeal) In this case we must decide whether the court of appeals erred in dismissing Ryland Enterprise, Inc.’s appeal as untimely. Because an arguable interpretation of our procedural rules allowed Ryland’s premature, pre-judgment motion for judgment notwithstanding the verdict (JNOV motion) to extend the appellate timetable to ninety days, the court of appeals erred in dismissing the appeal. Accordingly, pursuant to Texas Rule of Appellate Procedure 59.1 without hearing oral argument, we reverse the court of appeals’ judgment and remand the case to that court. On the facts of this case, an arguable interpretation of appellate rules 26.1(a) and 27.2 and civil rules 329b and 306c allowed Ryland’s motion, though filed pre-judgment, to nevertheless extend the appellate timetable to ninety days. Ryland’s sixty-fifth- day notice of appeal was therefore timely, and the court of appeals erred in dismissing the appeal. Pursuant to Texas Rule of Appellate Procedure 59.1, we reverse the court of appeals’ judgment without hearing oral argument and remand to that court for consideration of Ryland’s appeal. RYLAND ENTERPRISE, INC. v. VICKIE WEATHERSPOON; from Harris County; 1st district (01-10-00715-CV, ___ SW3d ___, 01-27-11) 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 Link to Electronic Briefs in this case: 11-0189 RYLAND ENTERPRISE, INC. v. WEATHERSPOON MOTIONS FOR REHEARING DENIED WITH OPINION: Marsh USA, Inc. v. Cook, No. 09-0558 (Tex. Dec. 16, 2011)(Opinion by Wainwright) (noncompetes, consideration, enforceability) We deny Rex Cook’s motion for rehearing. We withdraw our opinion of June 24, 2011 and substitute the following in its place. In this case, we decide whether a covenant not to compete signed by a valued employee in consideration for stock options, designed to give the employee a greater stake in the company’s performance, is unenforceable as a matter of law because the stock options did not give rise to an interest in restraining competition. We hold that, under the terms of the Covenants Not to Compete Act (Act), the consideration for the noncompete agreement (stock options) is reasonably related to the company’s interest in protecting its goodwill, a business interest the Act recognizes as worthy of protection. The noncompete is thus not unenforceable on that basis. We reverse the court of appeals’ judgment and remand to the trial court for further proceedings. CONCLUSION: In this case, the covenant not to compete is “ancillary to or part of” an otherwise enforceable agreement because the business interest being protected (goodwill) is reasonably related to the consideration given (stock options). Section 15.50 requires that there be a nexus between the covenant not to compete and the interest being protected. TEX.BUS. &COM.CODE § 15.50(a). This requirement is satisfied by the relationship that exists here. We reverse the judgment of the court of appeals and remand to the trial court for further proceedings consistent with this opinion. 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's opinion of June 24, 2011 is withdrawn and the opinion of this date is substituted. The concurring opinion by Justice Willet, the dissenting opinion by Justice Paul Green, and the judgment issued June 24, 2011, remain in place. Link to Electronic Briefs in this case including motion for rehearing and response: 09-0558 MARSH USA INC. v. COOK November 28, 2011 In re Allcat Claims Service, LP, No. 11-0589 (Tex. Nov. 28, 2011)(Opinion by Johnson)(constitutionality of franchise tax) In this original proceeding Allcat Claims Service, L.P., a limited partnership, and one of its limited partners seek an order directing the Comptroller to refund franchise taxes Allcat paid that were attributable to partnership income allocated, but not distributed, to its natural-person partners. Allcat claims it is entitled to a refund for two reasons. First, the tax facially violates Article VIII, Section 24 of the Texas Constitution because it is a tax on the net incomes of its natural-person partners that was not approved in a statewide referendum. Second, as applied by the Comptroller to Allcat and its partners, the franchise tax violates Article VIII, Section 1(a) of the Constitution, which requires taxation to be equal and uniform. We hold that: (1) the tax is not a tax imposed on the net incomes of the individual partners, thus it does not facially violate Article VIII, Section 24; and (2) we do not have jurisdiction to consider the equal and uniform challenge. IN RE ALLCAT CLAIMS SERVICE, L.P. AND JOHN WEAKLY The Court denies Allcat's requests for relief relating to its facial challenge because the Act does not violate Article VIII, Section 24 of the Constitution. The Court dismisses the as-applied challenge and attorney's fees claim for lack of jurisdiction. Justice Phil Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice David Medina, Justice Paul Green, and Justice Eva Guzman joined. Justice Willett delivered an opinion concurring in part and dissenting in part, in which Justice Lehrmann joined. Link to Electronic Briefs: 11-0589 IN RE ALLCAT CLAIMS SERVICE, L.P. November 18, 2011 Atmos Energy Corp. v. The Cities of Allen et al., No. 10-0375 (Tex. Nov. 18, 2011)(Wainwright) In 2003, the Texas Legislature amended the Gas Utility Regulatory Act (GURA) to allow gas utilities (Utilities) an opportunity to recover capital investments in Texas’ gas pipeline infrastructure made during the interim period between rate cases filed pursuant to Chapter 104, Subchapter C, of the Utilities Code. Act of May 16, 2003, 78th Leg., R.S., ch. 938, § 1, 2003 Tex. Gen. Laws 2801 (codified as TEX. UTIL. CODE § 104.301). This legislation is referred to as the “GRIP statute” or “GRIP amendment.” We conclude that the Railroad Commission has appellate jurisdiction under section 102.001(b) of the Texas Utilities Code over municipalities’ orders or ordinances concerning interim rate adjustments, but that jurisdiction is limited to review of the Utilities’ filings for compliance with the GRIP statute, section 104.301, and the GRIP rule, section 7.7101 of 16 Texas Administrative Code. This review involves examination of the statutory requirements for processing a utility’s application to amend its tariff or rate schedule under the GRIP statute and rule, and whether the GRIP filing satisfies those requirements. This construction effectuates the statutory language and furthers the purpose of the GRIP statute to create a streamlined procedure for recovery of capital as an incentive for gas utilities to invest in pipeline infrastructure. Therefore, we affirm the judgment of the court of appeals. ATMOS ENERGY CORPORATION, CENTERPOINT ENERGY RESOURCES CORPORATION, AND TEXAS GAS SERVICE COMPANY v. THE CITIES OF ALLEN, ET AL. AND RAILROAD COMMISSION OF TEXAS; from Travis County; 3rd district (03-06- 00691-CV, 309 SW3d 563, 02-05-10) 3 petitions The Court affirms the court of appeals' judgment. (14-page opinion in pdf) Justice Wainwright delivered the opinion of the Court. View Electronic Briefs in 10-0375 ATMOS ENERGY CORPORATION v. THE CITIES OF ALLEN OPINIONS RELEASED October 21, 2011 Rolling Plains Groundwater Conservation District v. City of Aspermont, TX, No. 08-0591 (Tex. Oct 21, 2011) (per curiam)(sovereign/governmental immunity as to declaratory judgment claim)(Heinrich progeny) ROLLING PLAINS GROUNDWATER CONSERVATION DISTRICT v. CITY OF ASPERMONT, TEXAS; from Stonewall County; 11th district (11-07-00009-CV, 258 SW3d 231, 05-08-08) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court affirms the court of appeals' judgment. Per Curiam Opinion View Electronic Briefs in 08-0591 ROLLING PLAINS GROUNDWATER CONSERVATION DISTRICT v. CITY OF ASPERMONT, TEXAS [including three amicus briefs] TxDOT v. Sefzik, No. 08-0943 (Tex. Oct 21, 2011) (per curiam) (sovereign immunity and declaratory relief)(remand for possible amendment to assert ultra vires claim against official, rather than state agency) TEXAS DEPARTMENT OF TRANSPORTATION v. ROGER SEFZIK; from Travis County; 13th district (13-06- 00550-CV, 267 SW3d 127, 06-19-08) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses in part the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion (Justice Johnson not sitting) View Electronic Briefs in 08-0943 TEXAS DEPT. OF TRANSP. v. SEFZIK Sharyland Water Supply Corp. v. City of Alton, No. 09-0223 (Tex. Oct 21, 2011) (Opinion by Jefferson)(attorney's fees, declaratory judgment action, economic loss rule) SHARYLAND WATER SUPPLY CORPORATION v. CITY OF ALTON, CARTER & BURGESS, INC., CRIS EQUIPMENT COMPANY, AND TURNER, COLLIE & BRADEN, INC.; from Hidalgo County; 13th district (13-06- 00038-CV, 277 SW3d 132, 02-05-09) The Court affirms in part, reverses and renders in part, and reverses and remands in part the court of appeals' judgment. Chief Justice Jefferson delivered the opinion of the Court View Electronic Briefs 09-0223 SHARYLAND WATER SUPPLY CORP. v. CITY OF ALTON (including multiple amicus briefs) Hemyari v. Stephens, No. 10-0389 (Tex. Oct 21, 2011)(per curiam) (bankruptcy stay and foreclosure) KOUROSH HEMYARI AND UNION VALLEY RANCH, L.P. v. GARY BEN STEPHENS, STEPHENS GROUP, L. P., AND STEPHENS GROUP II, L.P.; from Dallas County; 5th district (05-08-01492-CV, ___ SW3d ___, 04- 20-10) 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 renders judgment. Per Curiam Opinion View Electronic Briefs in 10-0389 HEMYARI v. STEPHENS Barnes v. Mathis, No. 10-0669 (Tex. Oct 21, 2011) (per curiam)(nuisance and trespass claims, appellate standards) H.E. BARNES v. LEE ROY MATHIS; from Anderson County; 12th district (12-08-00340-CV, 316 SW3d 795, 07-14-10) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses in part the court of appeals' judgment and remands the case to that court. Per Curiam Opinion View Electronic Briefs in 10-0669 BARNES v. MATHIS Marino v. King, No. 10-0854 (Tex. Oct 21, 2011) (per curiam)(summary judgment based on deemed admissions reversed) LYNDA MARINO v. CHARLES KING; from Brazos County; 10th district (10-09-00368-CV, ___ SW3d ___, 09- 01-10) 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 the trial court. Per Curiam Opinion View Electronic Briefs in 10-0854 MARINO v. KING September 30, 2011 - One Order Issued MOTION FOR REHEARING RE: PETITION FOR WRIT OF MANDAMUS DENIED (with corrected opinion substituted) In Re Puig, No. 10-0460 (Tex. Sep. 30, 2011) 10-0460 IN RE ALICE M. PUIG IN HER INDIVIDUAL CAPACITY AND IN HER CAPACITY AS THE INDEPENDENT ADMINISTRATRIX OF THE ESTATE OF ALICIA PRIETO PUIG, AND CHARLES B. PUIG; from Webb County; 4th district (04-10-00197-CV, ___ SW3d ___, 06-02-10) corrected opinion issued View Electronic briefing in 10-0460 IN RE ALICE M. PUIG August 26, 2011 Texas Supreme Court releases opinions in 19 cases City of Dallas v. Albert, No. 07-0284 (Tex. Aug. 26, 2011)(Opinion by Justice Phil Johnson) (multiple governmental immunity and waiver-of-immunity issues) This appeal involves a pay dispute between the City of Dallas and many of its police officers and firefighters. Pursuant to a referendum approved by the voters, the City adopted an ordinance addressing the pay of "each sworn police officer and fire fighter and rescue officer employed by the City of Dallas." Claiming the City did not properly pay them according to the ordinance, some firefighters and police officers (collectively, the Officers) sued the City. They sought both a declaratory judgment construing the ordinance and damages for breach of contract. The City counterclaimed, alleging that if the Officers had not been paid correctly, they had been overpaid instead of underpaid and the City was entitled to reimbursement for the overpayments. The City eventually sought dismissal of the Officers' claims on the basis of governmental immunity, then later dismissed its counterclaim. The trial court denied the City's immunity claim and this interlocutory appeal followed. During the pendency of the appeal, the Legislature amended the Local Government Code to provide for a limited, retroactive waiver of certain local governmental entities' immunity from suit. The main issues before us involve governmental immunity from suit. We will address the issues in the order that the court of appeals did: (1) what is the effect on the City's immunity of its filing, then non-suiting, the counterclaim; (2) what is the effect, if any, of the Legislature's retroactive waiver of immunity; (3) whether the City has immunity from the Officers' declaratory judgment action; and (4) whether the City lacks immunity from suit because the pay ordinance was adopted by referendum. We conclude that (1) by nonsuiting its counterclaim the City did not reinstate complete immunity from the Officers' pending claims; (2) the case must be remanded for the trial court to consider whether, by amending the Local Government Code, the Legislature waived the City's immunity; (3) the City has immunity from the declaratory judgment action; and (4) the ordinance having been adopted by referendum did not result in waiver or abrogation of the City's immunity. CITY OF DALLAS v. KENNETH E. ALBERT, ET AL.; from Collin County; 5th district (05-03-01297-CV, 05-03- 01298-CV, 214 SW3d 631, 12-21-06) 2 petitions motion to strike response to notice regarding counsel denied; motion to strike notice of appearance denied; motion to consider cause denied The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Phil Johnson delivered the opinion of the Court, in which Justice Wainwright, Justice Medina, Justice Green, Justice Guzman, and Justice Lehrmann joined, and in which Chief Justice Jefferson and Justice Hecht joined except to Part II-B. [pdf] Justice Hecht delivered an opinion concurring in part and dissenting in part, in which Chief Justice Jefferson joined. [pdf] Justice Willett delivered a dissenting opinion. [pdf] Link to e-briefs: CITY OF DALLAS v. ALBERT Texas Parks & Wildlife Department v. The Sawyer Trust, No. 07-0945 (Tex. Aug. 26, 2011) (Opinion by Justice Johnson)(sovereign immunity issue, takings claim, opportunity to replead and assert ultra vires claim) This appeal involves the issue of whether the trial court had jurisdiction over a claim against the Texas Parks and Wildlife Department to determine whether the Salt Fork of the Red River is navigable. The Sawyer Trust sued the Department for a declaratory judgment that the river is not navigable and that the Trust owns the riverbed where it crosses the Trust's property in Donley County. The Department filed a plea to the jurisdiction based on sovereign immunity. After the Department took the position that the river was navigable—and the State therefore owned the riverbed—the Trust added a constitutional takings claim. The trial court denied the Department's plea and the court of appeals affirmed. We hold that the Trust's claims for a declaratory judgment are barred by sovereign immunity and the Trust cannot assert a takings claim under these circumstances. We also hold, however, that the Trust is entitled to replead and attempt to assert an ultra vires claim against state officials if it chooses to do so. We reverse the court of appeals' judgment and remand the case to the trial court for further proceedings. TEXAS PARKS AND WILDLIFE DEPARTMENT v. THE SAWYER TRUST; from Donley County; 7th district (07- 06-00487-CV, ___ SW3d ___, 08-22-07) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Medina, Justice Green, Justice Willett, Justice Guzman, and Justice Lehrmann joined. [pdf] Chief Justice Jefferson delivered a concurring opinion, in which Justice Medina, Justice Willett, and Justice Guzman joined. [pdf] Justice Hecht delivered an opinion concurring in part and dissenting in part. Link to e-briefs: TEXAS PARKS AND WILDLIFE DEPARTMENT v. THE SAWYER TRUST Robinson v. Parker [Houston Mayor], No. 08-0658 (Tex. Aug. 26, 2011)(Opinion by Justice Paul Green)(ripeness doctrine)(jurisdictional dismissal) In this case, we are asked to decide (1) whether citizens who signed a petition proposing a local ballot initiative have standing to assert their declaratory judgment claims that the voter-approved initiative is valid and must be enforced; and (2) the validity of the voter-approved initiative. Because the citizens' claims are not ripe, however, we cannot reach those issues. CARROLL G. ROBINSON, BRUCE R. HOTZE, AND JEFFREY N. DAILY v. ANNISE D. PARKER, MAYOR; CITY OF HOUSTON; HOUSTON CITY COUNCIL, ET AL.; from Harris County; 14th district (14-06-00167-CV, 260 SW3d 463, 04-03-08) The Court vacates the judgments of the court of appeals and the trial court and dismisses the case for want of jurisdiction. Justice Green delivered the opinion of the Court. [pdf] (Justice Guzman not sitting) Link to e-briefs: ROBINSON v. BILL WHITE, MAYOR (one amicus brief) Texas Mutual Ins. Co. v. Ruttiger, No. 08-0751 (Tex. Aug. 26, 2011)(Opinion by Justice Phil Johnson) (Worker's Compensation Act) In 1989 the Legislature enacted major amendments to the Workers' Compensation Act (Act). Tex.Lab.Code §§ 401.001-506.002. The amendments included significant reforms, among which were changes in how to calculate income benefits for injured workers, the amount of income benefits workers could recover, the dispute resolution process, the addition of an ombudsman program to provide assistance for injured workers who had disputes with insurers, and increasing sanctions for violations of the Act. In this case, the issues presented involve, among other matters, (1) the interaction of the current Act with the Insurance Code and the Deceptive Trade Practices Act (DTPA), and (2) whether the 1989 restructuring of the Act and subsequent amendments obviate the need we found in Aranda v. Insurance Co. of North America, 748 S.W. 2d 210 (Tex. 1988) to engraft an extra-statutory cause of action for breach of the duty of good faith and fair dealing onto the workers' compensation system. We conclude that (1) claims against workers' compensation insurers for unfair settlement practices may not be made under the Insurance Code, but (2) claims under the Insurance Code may be made against those insurers for misrepresenting provisions of their policies, although in this case there was no evidence the insurer did so. Further, seven members of the Court would consider whether Aranda should be overruled even though the court of appeals did not reach the issues involving the cause of action for breach of the duty of good faith and fair dealing. Four Justices would hold that Aranda should be overruled while three would hold that it should not be. Two members of the Court would have the court of appeals first consider the issues involving breach of the duty of good faith and fair dealing before addressing them. In accordance with these views, a majority of the Court joins in the judgment reversing the judgment of the court of appeals and rendering judgment in part and remanding in part for further proceedings as to the issues involving breach of the duty of good faith and fair dealing. TEXAS MUTUAL INSURANCE COMPANY v. TIMOTHY J. RUTTIGER; from Galveston County; 1st district (01- 06-00897-CV, 265 SW3d 651, 07-31-08) The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to that court. Justice Johnson delivered the opinion of the Court with respect to Parts I, II, III, IV, and VI, in which Justice Hecht, Justice Wainwright, Justice Medina, Justice Willett and Justice Guzman joined, and an opinion with respect to Part V, in which Justice Hecht, Justice Wainwright, and Justice Medina joined. [pdf] Justice Willett delivered a concurring opinion, in which Justice Guzman joined. [pdf] Chief Justice Jefferson delivered a dissenting opinion, in which Justice Green and Justice Lehrmann joined. [pdf] Link to e-briefs incl. amicus briefs and responses s: TEXAS MUTUAL INS. CO. v. RUTTIGER Anglo-Dutch Petro Int. Inc. v. Greenberg Peden, P.C., No. 08-0833 (Tex. Aug. 26, 2011)(Opinion by Justice Nathan Hecht)(contract construction, legal services agreement not ambiguous and not a jury issue) The parties dispute whether an attorney fee agreement is ambiguous. The client contends that an agreement on law firm letterhead, signed by a lawyer on behalf of the firm, is with the firm, not with the lawyer personally. The lawyer counters that his use of personal pronouns in the agreement, as well as surrounding circumstances, create an ambiguity that must be resolved by a jury. We agree with the client and therefore reverse the judgment of the court of appeals. ANGLO-DUTCH PETROLEUM INTERNATIONAL, INC. AND ANGLO-DUTCH (TENGE) L.L.C. v. GREENBERG PEDEN, P.C. AND GERARD J. SWONKE; from Harris County; 14th district (14-07-00343-CV, 267 SW3d 454, 08-26-08) 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 Johnson, Justice Willett, and Justice Guzman joined. [pdf] Justice Wainwright delivered an opinion concurring in part and dissenting in part. [pdf] Justice Lehrmann delivered a dissenting opinion, in which Justice Medina and Justice Green joined. [pdf] Link to e-briefs including amicus briefs: ANGLO-DUTCH PETROLEUM INTERNATIONAL, INC. v. GREENBERG PEDEN, P.C. The Houston Exploration Co v. Wellington Underwriting Agencies, Ltd., No. 08-0890 (Tex. Aug. 26, 2011)(Opinion by Justice Nathan Hecht)(interpretation of insurance contract; significance of strike-through) The parties dispute whether an "all risk" property damage insurance policy provides indemnity for certain expenses incurred in connection with a covered loss. Coverage was negotiated in the London market, and as is customary there, the parties reached agreement by lining through provisions in a form policy. One such provision would have required reimbursement of the disputed expenses, and the question is whether the strike-through reflects the parties' intention that those expenses would not be reimbursed. We agree with the court of appeals that the answer is yes.[1] Deletions from a draft agreement do not always indicate the parties' intent, but they do when, as here, they are part of the customary negotiation process. THE HOUSTON EXPLORATION CO. AND OFFSHORE SPECIALTY FABRICATORS, INC. v. WELLINGTON UNDERWRITING AGENCIES, LTD., ET AL.; from Harris County; 14th district (14-07-00970-CV, 267 SW3d 277, 07-17-08) 2 petitions The Court affirms the court of appeals' judgment. Justice Hecht delivered the opinion of the Court, in which Justice Wainwright, Justice Medina, Justice Green, and Justice Guzman joined, and in Parts I and III of which Justice Johnson joined. [pdf] Justice Johnson delivered a concurring opinion. [pdf] Chief Justice Jefferson delivered a dissenting opinion, in which Justice Willett and Justice Lehrmann joined. [pdf] Link to e-briefs including amicus briefs: OFFSHORE SPECIALTY FABRICATORS, INC. v. WELLINGTON UNDERWRITING AGENCIES, LTD. Merck & Co., Inc. v. Garza, No. 09-0073 (Tex. Aug. 26, 2011)(Opinion by Justice Nathan Hecht) (Vioxx judgment thrown out, causation proof found wanting) Respondents contend that Vioxx, a prescription drug, caused their decedent's death. In Merrell Dow Pharmaceuticals, Inc. v. Havner,[1] we set requirements for determining whether epidemiological evidence is scientifically reliable to prove causation. The parties here dispute what those requirements are, whether they apply in this case, and whether they were satisfied. We hold that Havner's requirements apply and were not met, and that the evidence was therefore legally insufficient to prove causation. Accordingly, we reverse the judgment of the court of appeals[2] and render judgment that respondents take nothing. MERCK & CO., INC. v. FELICIA GARZA, ET AL.; from Starr County; 4th district (04-07-00234-CV, 277 SW3d 430, 12-10-08) The Court reverses the court of appeals' judgment and renders judgment. Justice Hecht delivered the opinion of the Court. [pdf] (Justice Willett and Justice Guzman not sitting) Link to e-briefs: MERCK & CO., INC. v. GARZA Lesley v. Veterans Land Board of Texas, No. 09-0306 (Tex. Aug. 26, 2011)(Opinion by Justice Hecht) The right to lease minerals — the executive right — is one "stick" in the bundle of five real property rights that comprise a mineral estate.[1] We held long ago that the executive owes other owners of the mineral interest a duty of "utmost fair dealing",[2] but we have seldom had occasion to elaborate. In this case, a land developer, who also owned part of the mineral estate and all of the executive right, imposed restrictive covenants on a subdivision, limiting oil and gas development in order to protect lot owners from intrusive exploratory, drilling, and production activities. The non-participating mineral interest owners complain that the developer, as the executive, breached its duty to them. The court of appeals held that the developer, never having undertaken to lease the minerals, had not exercised the executive right and therefore owed no duty to the other mineral interest owners.[3] We disagree, and accordingly, reverse and remand the case to the trial court. BETTY YVON LESLEY, ET AL. v. VETERANS LAND BOARD OF THE STATE OF TEXAS, ET AL.; from Erath County; 11th district (11-07-00034-CV, 281 SW3d 602, 01-22-09) The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court. Justice Hecht delivered the opinion of the Court, in which Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, Justice Willett, Justice Guzman, and Justice Lehrmann joined. [pdf] (Chief Justice Jefferson not sitting) Link to e-briefs: LESLEY v. VETERANS LAND BOARD OF THE STATE OF TEXAS (VLB) (amicus briefs) Ins. Co. of the State of Pennsylvania v. Muro, No. 09-0340 (Tex. Aug. 26, 2011) (Opinion by Justice David Medina)(workers compensation benefits taken away) The Texas Workers' Compensation Act authorizes the award of lifetime income benefits to employees who lose certain body parts or suffer certain injuries in work-related accidents. The specific body parts and injuries that qualify an employee for this type of benefit are enumerated in section 408.161 of the act. See Tex. Lab. Code § 408.161(a)(1)-(7). That enumeration includes, among others, "loss [or lost use] of both feet at or above the ankle." Id. § 408.161(a)(2), (b). The question here concerns the standard for awarding lifetime income benefits under section 408.161. The employee in this case injured her hips, an injury and body part not enumerated in section 408.161. The hip injuries, however, affected the use of her feet to the extent that she could no longer work. Although her feet were not injured, per se, the employee was awarded lifetime income benefits because her hip injuries prevented her from continuing to work. The issue then is whether the statute authorizes the award of lifetime benefits for injuries to body parts not enumerated in the statute, that is, whether the occurrence of one of the injuries identified in section 408.161 is a prerequisite to the award of lifetime benefits or whether other injuries that result in the employee's total and permanent incapacity, such as the hip injuries here, are enough. Affirming the employee's award of lifetime income benefits, the court of appeals concluded that section 408.161 does not limit the award of lifetime income benefits to the specific injuries and body parts enumerated in the statute. 285 S.W.3d 524, 529 (Tex. App.-Dallas 2009). We conclude, however, that section 408.161 limits the award of lifetime benefits to the injuries enumerated therein and that an employee does not lose the use of a body part, within the statute's meaning, without some evidence of an injury to that body part. Because there is no evidence that the employee suffered one of the enumerated injuries in this case, we reverse and render. INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA v. CARMEN MURO; from Dallas County; 5th district (05-07-00279-CV, 285 SW3d 524, 03-12-09) The Court reverses the court of appeals' judgment and renders judgment. Justice Medina delivered the opinion of the Court. [pdf] Link to e-briefs including amicus briefs: INS. CO. OF THE STATE OF PA v. MURO Combs v. Texas Entertainment Ass'n, Inc., No. 09-0481 (Tex. Aug. 26, 2011)(Opinion by Justice Nathan Hecht)($5 per customer pole tax on SOBs not unconstitutional) A Texas statute requires a business that offers live nude entertainment and allows the consumption of alcohol on its premises to remit to the Comptroller a $5 fee for each customer admitted. We are asked to decide whether the statute violates the right to freedom of speech guaranteed by the First Amendment to the United States Constitution. We hold it does not. We reverse the judgment of the court of appeals[1] and remand the case to the trial court for further proceedings. SUSAN COMBS, COMPTROLLER OF PUBLIC ACCOUNTS OF THE STATE OF TEXAS, AND GREG ABBOTT, ATTORNEY GENERAL OF THE STATE OF TEXAS v. TEXAS ENTERTAINMENT ASSOCIATION, INC. AND KARPOD, INC.; from Travis County; 3rd district (03-08-00213-CV, 287 SW3d 852, 06-05-09) The Court reverses the court of appeals' judgment and remands the case to the trial court. [pdf] Justice Hecht delivered the opinion of the Court. Link to e-briefs: COMBS v. TEXAS ENTERTAINMENT ASSOC., INC. (2 amicus briefs) Texas Rice Land Partners, Ltd. v. Denbury Green Pipeline-Texas, LLC, No. 09-0901 (Tex. Aug. 26, 2011)(Opinion by Justice Don R. Willett)(oil and gas and minerals law, no private condemnation power) The Texas Constitution safeguards private property by declaring that eminent domain can only be exercised for "public use."[1] Even when the Legislature grants certain private entities "the right and power of eminent domain,"[2] the overarching constitutional rule controls: no taking of property for private use.[3] Accordingly, the Natural Resources Code requires so-called "common carrier" pipeline companies to transport carbon dioxide "to or for the public for hire."[4] In other words, a C pipeline company cannot wield eminent domain to build a private pipeline. This property-rights dispute asks whether a landowner can challenge in court the eminent domain power of a Co pipeline owner that has been granted a common-carrier permit from the Railroad Commission. The court of appeals answered no, holding that (1) a pipeline owner can conclusively acquire the right to condemn private property by checking the right boxes on a one-page form filed with the Railroad Commission, and (2) a landowner cannot challenge in court whether the proposed pipeline will in fact be public rather than private. We disagree. Unadorned assertions of public use are constitutionally insufficient. Merely registering as a common carrier does not conclusively convey the extraordinary power of eminent domain or bar landowners from contesting in court whether a planned pipeline meets statutory common-carrier requirements. Nothing in Texas law leaves landowners so vulnerable to unconstitutional private takings. We reverse the court of appeals' judgment and remand to the district court for further proceedings consistent with this opinion. TEXAS RICE LAND PARTNERS, LTD. AND MIKE LATTA v. DENBURY GREEN PIPELINE-TEXAS, LLC; from Jefferson County; 9th district (09-09-00002-CV, 296 SW3d 877, 09-24-09) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Willett delivered the opinion of the Court. [pdf] Link to e-briefs: TEXAS RICE LAND PARTNERS, LTD. v. DENBURY GREEN PIPELINE-TEXAS LLC (including briefs by several amici) Texas A&M University - Kingsville v. Yarbrough, No. 09-0999 (Tex. Aug. 26, 2011) (Chief Justice Wallace Jefferson)(tenure dispute moot) An associate professor contends that her application for tenure was undermined by a department chair's summary of a performance evaluation in which the professor received an "exceptional" numerical rating. Although she was given the opportunity to rebut the summary, the professor asserts that the university prevented her from filing an official grievance. The professor was granted tenure before she filed the present suit requesting a declaration that the university's action violated Government Code section 617.005. We must decide whether her complaint about the university's grievance process survives her status as a tenured professor. Because we conclude that this case presents no live controversy, we reverse the court of appeals' judgment and render judgment dismissing the case. TEXAS A&M UNIVERSITY - KINGSVILLE v. MELODY YARBROUGH; from Kleberg County; 13th district (13- 07-00744-CV, 298 SW3d 366, 09-24-09) The Court reverses the court of appeals' judgment and renders judgment. Chief Justice Jefferson delivered the opinion of the Court, in which Justice Medina, Justice Green, Justice Guzman, and Justice Lehrmann joined. [pdf] Justice Willett delivered a dissenting opinion, in which Justice Hecht, Justice Wainwright, and Justice Johnson joined. [pdf] Link to e-briefs: TEXAS A&M UNIVERSITY - KINGSVILLE v. YARBROUGH FPL Farming Ltd. v. Environmental Processing Systems, L.C., No. 09-1010 (Tex. Aug. 26, 2011)(Opinion by Justice Dale Wainwright)(liability re: waste water injection well) (water law, environmental pollution) In this case we consider whether a regulatory permit to drill an injection well absolves the holder from civil tort liability for conduct authorized by the permit. Environmental Processing Systems, L.C. (EPS) obtained permits from the Texas Natural Resource Conservation Commission (now the Texas Commission on Environmental Quality) to construct and operate two deep wastewater injection wells on a tract next to land FPL Farming Ltd. (FPL) owns in Liberty County. FPL sued EPS for, among other things, tort damages for physical trespass based on alleged subsurface migration of water injected in the permitted well. Specifically, FPL alleged that the injected wastewater likely migrated onto its property and contaminated its water supply. After the jury failed to find a trespass, FPL appealed. Among other issues, FPL contended that it was entitled to a directed verdict on a consent defense, the allocation of the burden of proof in the jury charge was erroneous, and factually sufficient evidence supported its trespass claim. The court of appeals did not address the merits of the trespass claim or the jury charge but held FPL could not recover in tort for trespass damages because the wells were authorized by the permit EPs secured from the Texas Commission on Environmental Quality (TCEQ). The Injection Well Act provides that holders of wastewater injection well permits issued by the TCEQ are not immune from civil liability and our previous case law has not held that such permit holders are immune from tort liability. We therefore reverse the judgment of the court of appeals and remand for consideration of issues related to the trespass claim.[1] FPL FARMING LTD. v. ENVIRONMENTAL PROCESSING SYSTEMS, L.C.; from Liberty County; 9th district (09-08-00083-CV, 305 SW3d 739, 10-29-09) The Court reverses the court of appeals' judgment and remands the case to that court. Justice Wainwright delivered the opinion of the Court. [pdf] Link to e-briefs: FPL FARMING LTD. v. ENVIRONMENTAL PROCESSING SYSTEMS, L.C. G&H Towing Co. v. Magee, No. 10-0145 (Tex. Aug. 26, 2011)(per curiam opinion) (grant of more relief than requested, finality and partial summary judgment) Because an employer cannot be vicariously liable in tort when its agent or employee has not engaged in tortious conduct, we conclude that the court of appeals erred in remanding the vicarious liability claim while simultaneously holding that the employee had not committed a tort. We reverse the court of appeals' judgment and remand the cause to that court for consideration of the other grounds for summary judgment. When a trial court grants more relief than requested and, therefore, makes an otherwise partial summary judgment final, that judgment, although erroneous, is final and appealable. See Bandera Elec. Coop. v. Gilchrist, 946 S.W.2d 336, 337 (Tex. 1997) (per curiam). The court of appeals should treat such a summary judgment as any other final judgment, considering all matters raised and reversing only those portions of the judgment based on harmful error. Page v. Geller, 941 S.W.2d 101, 102 (Tex. 1997) (per curiam). Because the court of appeals did not follow this procedure, we grant the petition for review and, without hearing oral argument, reverse the court of appeals' judgment and remand the case to that court for further proceedings. See Tex. R. App. P. 59.1. G & H TOWING COMPANY, ET AL. v. CORY WAYNE MAGEE, ET AL.; from Harris County; 1st district (01-07- 00572-CV, 312 SW3d 807, 11-30-09) 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] Link to e-briefs: G & H TOWING CO. v. MAGEE In Re State of Texas, No. 10-0235 (Tex. Aug. 26, 2011)(Chief Jefferson)(severance order set aside as prejudicial by mandamus) After the State sought to condemn a tract of land, the owners subdivided the property into eight separate parcels. The trial court then severed the case into eight different proceedings. The State contends that the severance was improper, and it seeks a writ of mandamus requiring the trial court to vacate the order. Because the severance would require eight trials where only one is appropriate, and because it would preclude the State from presenting relevant valuation evidence, we conditionally grant the writ. Conclusion. The trial court's severance order prejudices the State's right to offer its valuation evidence and would cause needless duplication of legal services and expert testimony, wasting not only the parties' resources but those of the public at large. Accordingly, we conditionally grant the writ of mandamus and direct the trial court to vacate its severance order. We are confident the trial court will comply, and our writ will issue only if it does not. IN RE STATE OF TEXAS; from Travis County; 3rd district (03-10-00121-CV, ___ SW3d ___, 03-31-10) The Court conditionally grants the writ of mandamus. Chief Justice Jefferson delivered the opinion of the Court. [pdf] Link to e-briefs: (including multiple amicus briefs): IN RE STATE OF TEXAS Epps v. Fowler, No. 10-0283 (Tex. Aug. 26, 2011)(Opinion by Justice Debra Lehrmann) (who is prevailing party when plaintiff nonsuits?) Two years ago, we held that a plaintiff who obtained favorable jury findings but no damages was not entitled to attorney's fees under contractual language entitling a prevailing party to such fees. Intercont'l Group P'ship v. KB Home Lone Star L.P., 295 S.W.3d 650, 652 (Tex. 2009). Today, we consider whether a defendant is a prevailing party entitled to attorney's fees when the plaintiff nonsuits a claim without prejudice. We hold that such a defendant is not a prevailing party unless the court determines, on the defendant's motion, that the plaintiff took the nonsuit in order to avoid an unfavorable judgment. We also hold that, because a nonsuit with prejudice immediately alters the legal relationship between the parties by its res judicata effect, a defendant prevails when the plaintiff nonsuits with prejudice. Because the trial court has not had the opportunity to determine whether the plaintiff nonsuited in order to avoid an unfavorable judgment, we reverse the court of appeals' judgment and remand the defendant's claim for attorney's fees under the contract to the trial court. Finally, we hold that the court of appeals erred by not remanding the case to allow the trial court to dispose of the Eppses' pending claim for sanctions under chapter 10 of the Civil Practice and Remedies Code, and accordingly remand for the trial court to dispose of that alternative claim if it determines that fees are not available under the contract. CHRISTOPHER N. EPPS AND LAURA L. EPPS v. BRUCE FOWLER, JR. AND STEPHANIE L. FOWLER; from Williamson County; 3rd district (03-08-00055-CV, ___ SW3d ___, 02-10-10) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Lehrmann delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Green, Justice Willett, and Justice Guzman joined. [pdf] Justice Hecht delivered a dissenting opinion, in which Justice Medina and Justice Johnson joined. [pdf] Link to e-briefs: EPPS v. FOWLER St. David's Healthcare Partnership, L.P. v. Esparza, No. 10-0524 (Tex. Aug. 26, 2011)(per curiam opinion) (slip and fall as med-mal claim) In this case, we decide whether a patient's claim against a hospital for injuries suffered when he slipped and fell on a lubricating gel that fell to the floor of his hospital room during or immediately after a bladder scan is a health care liability claim. We hold that it is. Accordingly, we reverse the court of appeals' judgment and remand the case to the trial court with instructions to dismiss Esparza's claims and for further proceedings consistent with this opinion. We hold that the alleged negligence in permitting the gel to fall and remain on the floor of Esparza's room, causing his fall, is inseparable from the procedures for the disposition of gloves in a hospital. Esparza's claims are properly classified as health care liability claims because they arose from a departure from accepted standards "that should have been performed or furnished" by St. David's during Esparza's "medical care, treatment, or confinement." Tex. Civ. Prac. & Rem. Code § 74.001(a)(10),(13). The trial court should have dismissed Esparza's claim for failure to comply with the expert report requirements of the TMLA, and the court of appeals erred in holding otherwise. We grant the petition for review and, without hearing oral argument, reverse the court of appeals' judgment and remand the case to the trial court with instructions to dismiss Esparza's claims and for further proceedings consistent with this opinion. See Tex. R. App. P. 59.1, 60.2(d). ST. DAVID'S HEALTHCARE PARTNERSHIP, L.P., LLP D/B/A ST. DAVID'S HOSPITAL AND ST. DAVID'S COMMUNITY HEALTH FOUNDATION v. GENARO ESPARZA, JR.; from Travis County; 3rd district (03-09- 00734-CV, 315 SW3d 601, 05-13-10) 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 the trial court. Per Curiam Opinion [pdf] Link to e-briefs: ST. DAVID'S HEALTHCARE PARTNERSHIP, L.P. v. ESPARZA Barth v. Bank of America, N.A., No. 10-0659 (Tex. Aug. 26, 2011)(per curiam opinion) (misnomer) Jerry L. Barth sued "Bank of America Corporation". Bank of America, N.A. answered, asserting that it had been, in its words, "incorrectly named". At trial, the witnesses referred simply to "Bank of America", with one exception: Bank of America, N.A.'s corporate representative testified, in response to a question by Bank of America, N.A.'s counsel regarding the "actual entity [involved in the dispute] that we're here over today", that it was "Bank of America National Association". Bank of America Corporation was not mentioned in the evidence. During the jury charge conference after the close of the evidence, the trial court granted Barth a trial amendment to correct the misnomer, but the liability questions submitted to the jury and answered in Barth's favor all referred to Bank of America Corporation. The trial court rendered judgment against Bank of America, N.A. on the verdict. The court of appeals reversed and rendered, holding that the verdict does not support the judgment. ___ S.W.3d ___ (Tex. App.-Corpus Christi 2010). We disagree. JERRY L. BARTH v. BANK OF AMERICA, N.A.; from Hidalgo County; 13th district (13-08-00612 CV, ___ SW3d ___, 05-06-10) 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] Link to e-briefs: BARTH v. BANK OF AMERICA, N.A. Austin State Hospital v. Graham, No. 10-0674 (Tex. Aug. 26, 2011)(per curiam opinion) (governmental employee's interlocutory appeal) The issue presented is whether an employee of a governmental unit may take an interlocutory appeal from an order denying his motion to dismiss based on section 101.106(e) of the Texas Civil Practice and Remedies Code. We hold that he can and reverse the judgment of the court of appeals. 319 S.W.3d 905 (Tex. App.-Dallas 2010). AUSTIN STATE HOSPITAL, DR. VIKAR NUZHATH AND DR. ERIK LINDFORS v. JOEL GRAHAM; from Dallas County; 5th district (05-09-01312-CV, 319 SW3d 905, 08-04-10) 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] Link to e-briefs: AUSTIN STATE HOSP. v. GRAHAM July 29, 2011 Severance v. Patterson, No. 09-0387 (Tex. Jul. 29, 2011)(per curiam)(abatement of Open Beaches Act case) Pursuant to article V, section 3-c of the Texas Constitution and Texas Rule of Appellate Procedure 58.1, this Court agreed to answer questions of state law certified from the United States Court of Appeals for the Fifth Circuit. We issued the opinion on November 5, 2010. We later granted rehearing. While rehearing was pending, Appellant Carol Severance sold the property at issue to the City of Galveston in a Federal Emergency Management Agency buyout program for homes damaged by Hurricane Ike. Appellees contend that Severance's sale of the real property renders moot both the underlying lawsuit and our consideration of the certified questions on rehearing, and warrants vacating the original opinion. Severance disputes these contentions. The parties have notified the United States Court of Appeals for the Fifth Circuit of the sale. The determination whether the federal lawsuit is moot must be made by the Fifth Circuit. We abate our consideration on rehearing of the certified questions pending this mootness determination. CAROL SEVERANCE v. JERRY PATTERSON, COMMISSIONER OF THE TEXAS GENERAL LAND OFFICE; GREG ABBOTT, ATTORNEY GENERAL FOR THE STATE OF TEXAS; AND KURT SISTRUNK, DISTRICT ATTORNEY FOR THE COUNTY OF GALVESTON, TEXAS The Court abates consideration on rehearing of the certified questions pending the mootness determination of the United States Court of Appeals for the Fifth Circuit. Per Curiam Opinion [pdf] (Chief Justice Jefferson not sitting) View Electronic Briefs (including numerous amicus briefs) SEVERANCE v. JERRY PATTERSON, COMMISSIONER OF THE TEXAS GENERAL LAND OFFICE July 1, 2011 Opinions Omaha Healthcare Center, LLC v. Johnson, No. 08-0231 (Tex. Jul. 1, 2011)(Opinion by Justice Phil Johnson)(HCLC, med-mal suit, characterization of claim, expert report requirement, spider bite as medical malpractice) In this case we consider whether claims against a nursing home regarding a patient’s death alleged to have been caused by a brown recluse spider bite are health care liability claims (HCLCs) that required an expert report to be served. The trial court and court of appeals held that they were not. We disagree. Conclusion. Johnson’s claim is an HCLC and should have been dismissed. Because Omaha requested its attorney’s fees and costs in the trial court pursuant to Civil Practice and Remedies Code section 74.351 (b)(1), the case must be remanded. We grant Omaha’s petition for review. Without hearing oral argument we reverse the court of appeals’ judgment and remand the case to the trial court with instructions to dismiss Johnson’s claims and consider Omaha’s request for attorney’s fees and costs. CASE DETAILS: OMAHA HEALTHCARE CENTER, LLC v. WILMA JOHNSON, ON BEHALF OF THE ESTATE OF CLASSIE MAE REED, DECEASED; from Morris County; 6th district (06-07-00089-CV, 246 SW3d 278, 02-08-08) 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. Justice Phil Johnson delivered the opinion of the Court, in which Chief Justice Wallace B. Jefferson, Justice Nathan L. Hecht, Justice Dale Wainwright, Justice Paul W. Green, Justice Don R. Willett, and Justice Eva M. Guzman joined. [pdf] Justice Debra Lehrmann delivered a dissenting opinion, in which Justice David Medina joined. [pdf] Here is the link to e-briefs in case no. 08-0231 OMAHA HEALTHCARE CENTER, LLC v. JOHNSON City of Dallas v. VSC, LLC, No. 08-0265 (Tex. Jul. 1, 2011)(Opinion by Chief Justice Wallace B. Jefferson) (takings claim against governmental entity precluded given existence of a statutory remedy which party did not pursue in this case) We expect our government to retrieve stolen property and return it to the rightful owner. What happens, though, when a person claims an interest in property the government has seized? In this case, the City of Dallas seized vehicles, which it alleged were stolen, from a company that was entitled to petition for their return. See Tex. Code Crim. Proc. art. 47.01a(a). Instead of pursuing its statutory remedy, the company sued, alleging that its interest in those vehicles had been taken without just compensation. We hold that the availability of the statutory remedy precludes a takings claim. We reverse the court of appeals’ judgment and render judgment dismissing this suit. Conclusion. VSC received all of the process to which it was entitled. A party cannot claim a lack of just compensation based on its own failure to invoke a law designed to adjudicate such a claim. We reverse the court of appeals’ judgment and render judgment dismissing the case. Tex. R. App. P. 60.2(c). CASE DETAILS: CITY OF DALLAS v. VSC, LLC; from Dallas County; 5th district (05-05-01227-CV, 242 SW3d 584, 01-04-08) The Court reverses the court of appeals' judgment and renders judgment. Chief Justice Wallace B. Jefferson delivered the opinion of the Court, in which Justice Nathan L. Hecht, Justice David Medina, Justice Paul W. Green, Justice Don R. Willett, and Justice Debra Lehrmann joined. [pdf] Justice Dale Wainwright delivered a dissenting opinion, in which Justice Phil Johnson and Justice Eva M. Guzman joined. [pdf] Here is the link to e-briefs in case no. 08-0265 CITY OF DALLAS v. VSC, LLC AEP Tex. Central Co. v. PUC, No. 08-0634 (Tex. Jul. 1, 2011)(Opinion by Justice Don R. Willett)(PUC utilities law) This appeal challenges a final order of the Public Utility Commission in a true-up proceeding under Chapter 39 of the Utilities Code, a part of the Public Utility Regulatory Act (PURA). The district court affirmed the order in part and reversed it in part. The court of appeals affirmed the judgment of the district court in part and reversed it in part. In two recent decisions, we have reviewed PUC orders in true-up proceedings, giving a general description of Chapter 39 and the true-up procedure In today’s case, AEP Texas Central Co. (AEP), a transmission and distribution utility, and CPL Retail Energy, L.P., its affiliated retail electric provider, initiated a proceeding under Section 39.262 to finalize stranded costs and other true-up amounts. The State of Texas, several municipalities, and several other parties who are consumers of electricity or represent consumer interests (collectively the Consumers), intervened in the proceeding. In its final order (Order), the PUC determined stranded costs, which generally are “based on the difference between the book value of generation assets and the market value of these assets.” The PUC also made a separate determination of the capacity auction true-up under Section 39.262(d)(2). The issues before us now concern market value, net book value (NBV), and the capacity auction true-up. Conclusion. We grant the petition for review, and without hearing oral argument, affirm in part and reverse in part the court of appeals’ judgment, and remand this case to the PUC for further proceedings consistent with this opinion. CASE DETAILS: AEP TEXAS CENTRAL COMPANY v. PUBLIC UTILITY COMMISSION OF TEXAS, ET AL.; from Travis County; 3rd district (03-07-00196-CV, 258 SW3d 272, 06-27-08) 4 petitions 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 Public Utility Commission. Justice Don R. Willett delivered the opinion of the Court. [pdf] Here is the link to e-briefs in case no. 08-0634 AEP TEX. CENT. CO. v. PUB. UTIL. COMM'N OF TEX. [including three amicus briefs] City of Dallas v. Stewart, Heather, No. 09-0257 (Tex. Jul. 1, 2011)(Opinion by Chief Wallace B. Jefferson)(administrative resolution of dispute over nuisance abatement by city not preclusive, judicial review available, takings claim) Urban blight threatens neighborhoods. Either as a risk to public health or as a base for illicit activity, dilapidated structures harm property values far more than their numbers suggest. Cities must be able to abate these nuisances to avoid disease and deter crime. But when the government sets up a mechanism to deal with this very real problem, it must nonetheless comply with constitutional mandates that protect a citizen’s right to her property. Today we hold that a system that permits constitutional issues of this importance to be decided by an administrative board, whose decisions are essentially conclusive, does not correctly balance the need to abate nuisances against the rights accorded to property owners under our constitution. Independent court review is a constitutional necessity. We affirm the court of appeals’ judgment, but on different grounds. Conclusion. That the URSB’s nuisance determination cannot be accorded preclusive effect in a takings suit is compelled by the constitution and Steele, by Lurie and its antecedents, by the nature of the question and the nature of the right. The protection of property rights, central to the functioning of our society, should not—indeed, cannot—be charged to the same people who seek to take those rights away. Because we believe that unelected municipal agencies cannot be effective bulwarks against constitutional violations, we hold that the URSB’s nuisance determination, and the trial court’s affirmance of that determination under a substantial evidence standard, were not entitled to preclusive effect in Stewart’s takings case, and the trial court correctly considered the issue de novo. We affirm the court of appeals judgment. Tex. R. App. P. 60.2(a). CASE DETAILS: CITY OF DALLAS v. HEATHER STEWART; from Dallas County; 5th district (05-07-01244-CV, ___ SW3d ___, 12-11-08) The Court affirms the court of appeals' judgment. Chief Justice Wallace B. Jefferson delivered the opinion of the Court, in which Justice Nathan L. Hecht, Justice David Medina, Justice Don R. Willett, and Justice Debra Lehrmann joined. [pdf] Justice Phil Johnson delivered a dissenting opinion, in which Justice Dale Wainwright, Justice Paul W. Green, and Justice Eva M. Guzman joined. [pdf] Justice Eva M. Guzman delivered a dissenting opinion, in which Justice Dale Wainwright, Justice Paul W. Green, and Justice Phil Johnson joined. [pdf] Here is the link to e-briefs in case no. 09-0257 CITY OF DALLAS v. STEWART [including 3 amicus briefs] Haygood v. Garza de Escabedo, No. 09-0377 (Tex. Jul. 1, 2011)(Opinion by Justice Nathan L. Hecht) (what are reasonable health-care expenses, what is incurred and recoverable?) (limitation of damages, medical treatment expenses) Damages for wrongful personal injury include the reasonable expenses for necessary medical care, but it has become increasingly difficult to determine what expenses are reasonable. Health care providers set charges they maintain are reasonable while agreeing to reimbursement at much lower rates determined by insurers to be reasonable, resulting in great disparities between amounts billed and payments accepted. Section 41.0105 of the Texas Civil Practice and Remedies Code, enacted in 2003 as part of a wide-ranging package of tort-reform measures, provides that “recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.” We agree with the court of appeals that this statute limits recovery, and consequently the evidence at trial, to expenses that the provider has a legal right to be paid. Conclusion: [W]e hold that only evidence of recoverable medical expenses is admissible at trial. We disapprove the cases that have reached conflicting decisions. Of course, the collateral source rule continues to apply to such expenses, and the jury should not be told that they will be covered in whole or in part by insurance. Nor should the jury be told that a health care provider adjusted its charges because of insurance. CASE DETAILS: AARON GLENN HAYGOOD v. MARGARITA GARZA DE ESCABEDO; from Angelina County; 12th district (12-07-00130-CV, 283 SW3d 3, 02-18-09) The Court affirms the court of appeals' judgment. Justice Nathan L. Hecht delivered the opinion of the Court, in which Chief Justice Wallace B. Jefferson, Justice Dale Wainwright, Justice Paul W. Green, Justice Phil Johnson, Justice Don R. Willett, and Justice Eva M. Guzman joined. [pdf] Justice Debra Lehrmann delivered a dissenting opinion, in which Justice David Medina joined. [pdf] Here is the link to e-briefs in case no. 09-0377 HAYGOOD v. GARZA DE ESCABEDO [including half a dozen amicus briefs] Andrade v. NAACP of Austin, No. 09-0420 (Tex. Jul. 1, 2011)(Opinion by Chief Wallace B. Jefferson)(challenge to electronic voting without paper record) Technology is changing the way we vote. It has not eliminated controversy about the way votes are recorded and verified. We must decide whether voters have standing to pursue complaints about an electronic voting machine that does not produce a contemporaneous paper record of each vote. Because we conclude that most of the voters’ allegations involve generalized grievances about the lawfulness of government acts, and because their remaining claims fail on their merits, we reverse the court of appeals’ judgment and render judgment dismissing the case. Conclusion. The voters raise legitimate concerns about system integrity and vulnerability. But these are policy disputes more appropriately resolved in the give-and-take of politics. Perhaps the Secretary will decide, as California has, to de-certify certain DREs. Perhaps the Legislature will require a contemporaneous paper record of votes cast, or perhaps Texas will curtail or abandon DRE use altogether. But we cannot say the Secretary’s decision to certify this device violated the voters’ equal protection rights or that the voters can pursue generalized grievances about the lawfulness of her acts. “Vindicating the public interest (including the public interest in Government observance of the Constitution and laws) is the function of [the Legislature] and the Chief Executive.” Lujan, 504 U.S. at 576. We reverse the court of appeals’ judgment and render judgment dismissing the case. Tex. R. App. P. 60.2(c). CASE DETAILS: ESPERANZA ANDRADE, IN HER OFFICIAL CAPACITY AS SECRETARY OF STATE FOR THE STATE OF TEXAS v. NAACP OF AUSTIN, NELSON LINDER, SONIA SANTANA AND DAVID VAN OS; from Travis County; 3rd district (03-08-00076-CV, 287 SW3d 240, 04-10-09) The Court reverses the court of appeals' judgment and renders judgment. Chief Justice Wallace B. Jefferson delivered the opinion of the Court. [pdf] Here is the link to e-briefs in case no. 09-0420 ESPERANZA ANDRADE v. NAACP OF AUSTIN Tyler Scoresby, MD v. Santillan, No. 09-0497(Tex. Jul. 1, 2011)(Opinion by Justice Don R. Willett)(HCLC med-mal suits, expert report deadline extension, curing of defective reports, when is immediate appellate review available?) The Medical Liability Act entitles a defendant to dismissal of a health care liability claim if, within 120 days of the date suit was filed, he is not served with an expert report showing that the claim against him has merit. The trial court’s refusal to dismiss is immediately appealable. The Act sets specific requirements for an adequate report and mandates that “an objective good faith effort [be made] to comply” with them, but it also authorizes the trial court to give a plaintiff who meets the 120-day deadline an additional thirty days in which to cure a “deficiency” in the elements of the report. The trial court should err on the side of granting the additional time and must grant it if the deficiencies are curable. The defendant cannot seek review of this ruling or appeal the court’s concomitant refusal to dismiss the claim before the thirty-day period has expired. Conclusion. We conclude that a thirty-day extension to cure deficiencies in an expert report may be granted if the report is served by the statutory deadline, if it contains the opinion of an individual with expertise that the claim has merit, and if the defendant’s conduct is implicated. We recognize that this is a minimal standard, but we think it is necessary if multiple interlocutory appeals are to be avoided, and appropriate to give a claimant the opportunity provided by the Act’s thirty-day extension to show that a claim has merit. All deficiencies, whether in the expert’s opinions or qualifications, are subject to being cured before an appeal may be taken from the trial court’s refusal to dismiss the case. CASE DETAILS: TYLER SCORESBY, M.D. v. CATARINO SANTILLAN, INDIVIDUALLY AND AS NEXT FRIEND OF SAMUEL SANTILLAN, A MINOR; from Tarrant County; 2nd district (02-08-00357-CV, 287 SW3d 319, 04-30-09) 2 petitions The Court affirms the court of appeals' judgment. Justice Nathan L. Hecht delivered the opinion of the Court, in which Chief Justice Wallace B. Jefferson, Justice David Medina, Justice Paul W. Green, Justice Don R. Willett, Justice Eva M. Guzman, and Justice Debra Lehrmann joined. [pdf] Justice Don R. Willett delivered a concurring opinion. [pdf] Justice Phil Johnson delivered a dissenting opinion, in which Justice Dale Wainwright joined. [pdf] Here is the link to e-briefs in case no. 09-0497 TYLER SCORESBY, M.D. v. SANTILLAN TxDPS v. Cox Texas Newspapers, LP., No. 09-0530 (Tex. Jul. 1, 2011)(Opinion by Justice Dale Wainwright) (limitation of access to records, safety considerations) Our common law protects from public disclosure highly intimate or embarrassing facts. We must decide whether it also protects information that substantially threatens physical harm. We conclude that it does. Both sides raise important questions, not just about safety but also about the public’s right to know how the government spends taxpayer money. Those issues could not have been fully litigated under the standard that prevailed before today's decision. Accordingly, we reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings. Conclusion: We reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings consistent with this opinion. Tex. R. App. P. 60.2 (d). CASE DETAILS: TEXAS DEPARTMENT OF PUBLIC SAFETY v. COX TEXAS NEWSPAPERS, L.P., AND HEARST NEWSPAPERS, L.L.C.; from Travis County; 3rd district (03-08-00516-CV, 287 SW3d 390, 05-29-09) The Court reverses the court of appeals' judgment and remands the case to the trial court. Chief Justice Wallace B. Jefferson delivered the opinion of the Court, in which Justice Nathan L. Hecht, Justice Paul W. Green, Justice Eva M. Guzman, and Justice Debra Lehrmann joined. [pdf] Justice Dale Wainwright delivered a concurring opinion, in which Justice Phil Johnson joined. [pdf] (Justice David Medina and Justice Don R. Willett not sitting) Here is the link to e-briefs in case no. 09-0530 TEX. DEPT. OF PUBLIC SAFETY v. COX TEXAS NEWSPAPERS, L.P. [including one amicus brief by Freedom of Information Foundation of Texas Jackson v. State Office of Administrative Hearings, No. 10-0002 (Tex. Jul. 1, 2011)(Opinion by Justice Phil Johnson)(open records act request under PIA) In order to withhold public information requested pursuant to the Texas Public Information Act (TPIA) a governmental entity must demonstrate that the requested information is not within the scope of the TPIA or that it falls within one of TPIA’s specific exceptions to the disclosures requested. See Tex. Gov’t Code §§ 552.101-.148; City of Garland v. Dallas Morning News, 22 S.W.3d 351, 355-56 (Tex. 2000). In this case, the State Office of Administrative Hearings (SOAH) refused to disclose certain decisions and orders in license suspension cases related to delinquent child support. The trial court and court of appeals agreed with SOAH that the information is expressly excepted from disclosure by the Texas Government Code provisions. We hold that the decisions and orders must be disclosed after redaction of information expressly excepted from disclosure and not already in a public record or otherwise in the public domain. We reverse and remand to the trial court for further proceedings. Conclusion. The decisions and orders Jackson requested must be disclosed. See Tex. Gov’t Code § 552.002. The Legislature has clearly expressed its intent that exceptions to disclosure be construed narrowly. See Tex. Gov’t Code § 552.001; In re Georgetown, 53 S.W.3d at 340 (“‘When the Legislature has intended to make information confidential, it has not hesitated to so provide in express terms.’” (quoting Birnbaum v. Alliance of Am. Insurers, 994 S.W.2d 766, 776 (Tex. App.—Austin 1999, pet. denied)); see also Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981) (“[E]very word of a statute must be presumed to have been used for a purpose. Likewise, we believe every word excluded from a statute must also be presumed to have been excluded for a purpose.”) (citations omitted). We decline to read the language of the statute broader than it is written and we conclude that the purpose and intent of the TPIA can be fulfilled by disclosing the requested documents with redactions. See City of Fort Worth v. Cornyn, 86 S.W.3d 320, 326 (Tex. App.—Austin 2002, no pet.) (“To find otherwise would also be inconsistent with the Legislature’s directive to liberally construe the Act in favor of disclosure.”). We therefore hold that SOAH must disclose the requested decisions and orders after redaction of any information obtained during provision of Chapter 231 services, such as information concerning a custodial parent, noncustodial parent, child, and an alleged or presumed father, that was not already in the public domain. CASE DETAILS: SAMUEL T. JACKSON v. STATE OFFICE OF ADMINISTRATIVE HEARINGS AND SHELIA BAILEY TAYLOR IN HER OFFICIAL CAPACITY AS CHIEF ADMINISTRATIVE LAW JUDGE, STATE OFFICE OF ADMINISTRATIVE HEARINGS; from Travis County; 3rd district (03-07-00293-CV, ___ SW3d ___, 07-30-09) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Phil Johnson delivered the opinion of the Court. [pdf] Here is the link to e-briefs in case no. 10-0002 JACKSON v. STATE OFFICE OF ADMINISTRATIVE HEARINGS Lancer Ins. Co. v. Garcia Holiday Tours, No. 10-0096 (Tex. Jul. 1, 2011)(Opinion by Justice David Medina) (insurance coverage, indemnity, liability for communication of disease by bus driver to passenger)(no insurance coverage of liability for damages caused by infection of passenger by ill driver under carrier's policy) The question in this appeal is whether the transmission of a communicable disease from the driver of a motor vehicle to a passenger is a covered loss under a business auto policy, which affords coverage for accidental bodily injuries resulting from the vehicle’s use. The issue is one of first impression in this state and perhaps the country. The parties advise that they have found no similar reported cases. The trial court concluded that the policy covered this type of occurrence and rendered summary judgment that the insurance carrier owed a duty to indemnify the insured. The court of appeals agreed that the policy might provide coverage for such a claim but reversed the summary judgment and remanded the case to the trial court to resolve a factual dispute about whether the passengers had contracted the disease while in the vehicle. 308 S.W.3d 35, 47 (Tex. App.—San Antonio 2009). Because we conclude that communicable diseases are not an insured risk under this particular policy, we reverse the judgment below and render judgment for the insurance carrier. Conclusion: We conclude that the transmission of a communicable disease from a bus driver to his passengers was not a risk assumed by the insurance carrier under this business auto policy because the passengers’ injuries did not result from the vehicle’s use but rather from the bus company’s use of an unhealthy driver. The bus, itself, in its capacity as a mode of transportation, did not produce, and was not a substantial factor in producing, the passengers’ injuries. The court of appeals’ judgment is accordingly reversed and judgment rendered that the passengers, bus company, and driver take nothing on their indemnity claim against the insurance carrier. CASE DETAILS: LANCER INSURANCE COMPANY v. GARCIA HOLIDAY TOURS, ET AL.; from Jim Wells County; 4th district (04-08-00839-CV, 308 SW3d 35, 12-23-09) The Court reverses the court of appeals' judgment and renders judgment. Justice David Medina delivered the opinion of the Court. [pdf] Here is the link to e-briefs in case no. 10-0096 LANCER INS. CO. v. GARCIA HOLIDAY TOURS [including an amicus brief by Property Casualty Insurers Association of America] In Re Guaranty Ins. Services, Inc., No. 10-0364 (Tex. Jul. 1, 2011)(per curiam opinion) (mandamus granted to undo disqualification of firm) (practice of law, conflicts of interest involving paralegal working for both sides in suit, disqualification) What happens when a law firm’s efforts to screen a conflict fail, permitting a nonlawyer who worked on one side of a case at one firm to work on the other side of the same case at the opposing firm? Here, the trial court disqualified the second firm, reasoning there was a conclusive presumption that the nonlawyer had shared confidential information, despite evidence he had not. A divided court of appeals denied mandamus relief. 310 S.W.3d 630, 634. Given our prior decisions on the subject—particularly our recent decision in In re Columbia Valley Healthcare System, L.P., 320 S.W.3d 819 (Tex. 2010) (orig. proceeding), issued four months after the court of appeals’ decision below—we conclude disqualification was not warranted. Further, because the improper disqualification was a clear abuse of discretion for which there is no adequate remedy by appeal, mandamus relief is warranted. See In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding) (describing when mandamus relief may issue); NCNB Tex. Nat’l Bank v. Coker, 765 S.W.2d 398, 400 (Tex. 1989) (orig. proceeding) (granting mandamus in context of improper disqualification). We conditionally grant mandamus relief and direct the trial court to vacate its disqualification order. For these reasons, and without hearing oral argument, see Tex. R. App. P. 52.8(c), we conditionally grant mandamus relief and direct the trial court to vacate its order granting the motion to disqualify. We are confident the trial court will comply, and the writ will issue only if it does not. CASE DETAILS: IN RE GUARANTY INSURANCE SERVICES, INC.; from Travis County; 3rd district (03-09-00640-CV, 310 SW3d 630, 04-16-10) Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the writ of mandamus. Per Curiam Opinion [pdf] Here is the link to e-briefs in case no. 10-0364 IN RE GUARANTY INSURANCE SERVICES, INC. PETITION FOR WRIT OF MANDAMUS DENIED WITH OPINION: In Re Alice Puig, No. 10-0460 (Tex. Jul. 1, 2011)(per curiam opinion) (mandamus denied)(dominant and vs. exclusive jurisdiction) In this case, we are asked to grant mandamus relief to correct a district court’s denial of a plea to the jurisdiction. The plea challenged the district court’s jurisdiction to determine the ownership of a ranch allegedly owned, in part, by an estate undergoing administration in a county court at law. Under our precedent, the issue here is one of dominant, not exclusive, jurisdiction. The proper method for contesting a court’s lack of dominant jurisdiction is the filing of a plea in abatement, not a plea to the jurisdiction as the relators filed here. See Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247–48 (Tex. 1988). Because the district court did not abuse its discretion in denying the relators’ plea to the jurisdiction, we deny the petition for writ of mandamus. Conclusion: Because the issue is one of dominant, rather than exclusive, jurisdiction the relators should have filed a plea in abatement. The district court’s deni al of the relators’ plea to the jurisdiction, therefore, did not constitute an abuse of discretion depriving the relators of an adequate appellate remedy. See Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985). We note that the improper denial of a plea in abatement may, on occasion, warrant mandamus relief. See, e.g., Curtis, 511 S.W.2d at 266–68. Pleas in abatement are incidental rulings, the denial of which ordinarily does not support mandamus relief. See Abor, 695 S.W.2d at 567. But when a court issues an “order which actively interferes with the exercise of jurisdiction” by a court possessing dominant jurisdiction, mandamus relief is appropriate. Id.; see Perry v. Del Rio, 66 S.W.3d 239, 258 (Tex. 2001) (granting mandamus relief to direct a district court to move a trial setting so that another court that already exercised jurisdiction over different cases involving nearly identical issues, parties, and witnesses could first consider those cases); Curtis, 511 S.W.2d at 266–68 (granting mandamus relief directing a judge to sustain a plea in abatement in a child custody suit where one court attempted to exercise jurisdiction with respect to the children, despite the fact that dominant jurisdiction had previously been established in another court). Because the Webb County district court did not commit a clear abuse of discretion in denying the relators’ plea to the jurisdiction, any further inquiry into the relators’ appellate remedy is unnecessary. Accordingly, the relators’ petition for writ of mandamus is denied. CASE DETAILS: IN RE ALICE M. PUIG IN HER INDIVIDUAL CAPACITY AND IN HER CAPACITY AS THE INDEPENDENT ADMINISTRATRIX OF THE ESTATE OF ALICIA PRIETO PUIG, AND CHARLES B. PUIG; from Webb County; 4th district (04-10-00197-CV, ___ SW3d ___, 06-02-10) stay order issued July 30, 2010, lifted Per Curiam Opinion [pdf] Here is the link to e-briefs in case no. [ not available as of 7/1 - bad link on court's website] |