Texas Supreme Court Opinions (Tex. 2009-2008) | Brister, Scott A., Justice | Resignation announced effective September 7, 2009 | Gov. Rick Perry to Name Replacement to bench vacated by Justice Scott Brister

2009 Texas Supreme Court Opinions by [Former] Justice Scott Brister,
Concurrences and Dissenting Opinions

August 17, 2009. Justice Brister announces resignation effective Sep. 7, 2009; will return
to private practice and give Governor a chance to nominate a Republican replacement
(see advisory (press release))

APPRAISAL PROVISION IN INSURANCE CONTRACT ENFORCED
State Farm Lloyds v. Johnson, No. 06-1071 (Tex. Jul. 3, 2009)(Brister) (INSURANCE LAW:
appraisal clause in insurance context, hail damages to home of insured home owner)
STATE FARM LLOYDS v. BECKY ANN JOHNSON; from Collin County; 5th district
(05-05-00640-CV, 204 SW3d 897, 10-27-06 Opinion of the Dallas Court of Appeals)
The Court affirms the court of appeals' judgment.
Justice Brister delivered the opinion of the Court.

JURISPRUDENTIAL CURIO: FIRST THE AGENCY SUES, THEN IT CLAIMS THE COURT DOES NOT
(YET?) HAVE JURISDICTION.
ERS of Texas v. Duenez, No. 07-0410 (Tex. Jul 3, 2009)(Brister) (agency exclusive jurisdiction
doctrine does not apply to subrogation claim brought by ERS against former plan participant)
EMPLOYEES RETIREMENT SYSTEM OF TEXAS v. XAVIER DUENEZ AND IRENE DUENEZ;
from Calhoun County; 13th district (13-05-00729 CV, ___ SW3d ___, 04-05-07 Opinion below)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court dismisses the petition for want of jurisdiction.
Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice
Medina, Justice Green, and Justice Willett joined.
Justice Hecht delivered a dissenting opinion. (arguing nonjusticiability)
Justice Wainwright delivered a dissenting opinion, (in which he would hold that the Texas Legislature gave
ERS exclusive jurisdiction over the subrogation dispute), in which Justice Johnson joined.

SUPREMES DENY MANDAMUS RELIEF IN DISPUTE OVER LEGAL CAPACITY ISSUE WITH RESPECT
TO ARBITRATION AGREEMENT AND ISSUE NO LESS THAN FOUR (4) SEPARATE OPINIONS.
In re Morgan Stanley & Co, Inc. No. 07-0665 (Tex. Jul. 3, 2009)(Medina) (arbitration vs. litigation:
legal capacity of party to arbitration agreement, who decides the issue? arbitrators or judge)
IN RE MORGAN STANLEY & CO. INC., SUCCESSOR TO MORGAN STANLEY DW, INC.; from Dallas
County; 5th district (05-07-00590-CV, ___ SW3d ___, 07-17-07 Opinion by the Dallas CoA)
The petition for writ of mandamus is denied.
Justice Medina delivered the opinion of the Court [pdf], in which Chief Justice Jefferson, Justice Wainwright,
Justice Green, Justice Johnson, and Justice Willett joined.
Justice Brister delivered a concurring opinion. [pdf]
Justice Willett delivered a concurring opinion. [pdf]
Justice Hecht delivered a dissenting opinion. [pdf]
(Justice O'Neill not sitting)

COURT FINDS VAGUENESS AND SPLITS O N EFFECTIVE DATE OF APPELLATE DECISION
Edwards Aquifer Authority v. Chemical Lime, Ltd., (Tex. 2009) No. 06-0911 (Tex. Jun. 26, 2009)(Hecht)
(administrative law, water law, at torney's fees under the UDJA aka DJA)
EDWARDS AQUIFER AUTHORITY, ET AL. v. CHEMICAL LIME, LTD.; from Comal County; 3rd district
(03 -04 -00379 -CV, 212 SW3d 683, 09-14-06)(op. on 2nd motion for rehearing in the court below)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Hecht delivered the opinion of the Court, [pdf 22 pgs], in which Chief Justice Jefferson, Justice O’
Neill, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, Justice Johnson and Justice Willett
joined. [pdf]Justice Brister delivered a concurring opinion. [pdf]
Justice Willett delivered a concurring opinion. [pdf]
View Electronic Briefs in Edwards Aquifer Authority v. Chemical Lime, Ltd. (Tex. 2009)

Brister Breaks With Majority, Favoring Greater Procedural Protection for Defendants
In the Interest of EA, No. 08-0157 (Tex. Jun. 5, 2009)(Jefferson)
(method of service of amended petition, sufficiency of service by certified mail under rule 21a when
Defendant has been served with civil process, but has not filed an answer or made appearance)
IN THE INTEREST OF E.A. AND D.A., CHILDREN; from Wichita County; 2nd district (02-07-00215-CV, ___
SW3d ___, 12-06-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the
trial court.
Chief Justice Jefferson delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice
Medina, Justice Green, and Justice Johnson joined. [pdf]
Justice Scott A. Brister delivered a concurring opinion, in which Justice Wainwright and Justice
Willett joined. (default judgment not to be based on amended petition seeking more onerous relief against
nonanswering defendant if not served with new citation)

Court, in opinion by Justice Scott Brister, Deals Blow to Shareholder Suit - Requires
greater specificity in presuit demand letter than required under Texas pleading rules in
court
In Re Schmitz, No. 07-0581 (Tex. May 22, 2009)(Brister)
(criteria for mandamus relief, shareholder derivative suit, sufficiency of pre-suit demand letter)
IN RE HAROLD R. SCHMITZ, ET AL.; from Bexar County;
4th district (04-07-00359-CV, ___ SW3d ___, 07-11-07)
The Court conditionally grants the petition for writ of mandamus.
Justice Brister delivered the opinion of the Court.
(Chief Justice Jefferson not sitting)

Hagen v. Hagen, No. 07-1065 (Tex. May 1 2009)(Johnson)
(family law, divorce decree, postjudgment clarification order, retirement disability benefits division, res
judicata, relitigation)
RAOUL HAGEN v. DORIS J. HAGEN; from Bexar County;
4th district (04-06-00705-CV, ___ SW3d ___, 08-01-07)
The Court reverses the court of appeals' judgment and affirms the trial court's judgment.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, Justice Green, and Justice Willett joined.
Justice Brister delivered a dissenting opinion, in which Justice O'Neill and Justice Medina joined.

Tanner v. Nationwide Mutual F i re Ins. Co., No. 07-0760 (Tex. Apr. 21, 2009)(Willett)
(insurance coverage dispute, intentional injury exclusion)
GREG TANNER AND MARIBEL TANNER, INDIVIDUALLY AND AS NEXT FRIENDS OF K.T. AND R.T.,
MINOR CHILDREN v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY; from Caldwell County; 11th
district (11-05-00371-CV, 232 SW3d 330, 08-09-07)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Willett delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
O'Neill, Justice Wainwright, Justice Medina, Justice Green, and Justice Johnson joined.
Justice Brister delivered a dissenting opinion

In Re Gulf Exploration, No 07-0055 (Tex. Apr. 17, 2009)(arbitration mandamus, mandamus against
order compelling arbitration as opposed to order denying arbitration)
IN RE GULF EXPLORATION, LLC, ET AL.; from Midland County; 11th district
(11-06-00244-CV, 211 SW3d 828, 11-30-06)
The Court conditionally grants the petition for writ of mandamus.
Justice Brister delivered the opinion of the Court.

Gurkoff, D.O. v. Jersak, No. 08-0398 (Tex. Feb. 27, 2009)(Dissent by Brister)
(Dissent from denial of petition for review) (enforcement of sanctions in the form of defendant's
attorney's fees for failure to file expert report in med-mal suit)
08-0398 JERRY GURKOFF, D.O. v. ROSEMARY JERSAK; from Tarrant County;
2nd district (02-07-00101-CV, ___ SW3d ___, 04-10-08)
Justice Brister, joined by Justice Hecht, delivered an opinion dissenting from the denial

2008 Texas Supreme Court Opinions by Justice Scott Brister

OPINION PRODUCTION: In Fiscal Year 2008, which ended August 31, 2008,
Justice Brister wrote 11 majority opinions, 18 per curiam opinions, four
concurrences, and five dissents. With a total of 38 opinions Scott Brister led the
Supreme Court in productivity for FY 2008. Members of the 14 courts of appeals,
however, routinely issue a multiple of this number per year, both in civil and criminal
matters.

U.S. Fidelity & Guaranty Co. v. Goudeau, No. 06-0987 (Tex. Dec. 19, 2008)(Brister)(insurance
coverage, insurer as party and intervenor, admission)
UNITED STATES FIDELITY AND GUARANTY COMPANY v. LOUIS GOUDEAU; from Harris County; 1st
district (01-04-01168-CV, 243 SW3d 1, 08-31-06)
The Court reverses in part the court of appeals' judgment and renders judgment.
Justice Brister delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice Wainwright,
Justice Medina, and Justice Willett joined.
Justice Green delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Johnson joined

Wagner & Brown, Ltd. v. Sheppard, No. 06-0845 (Tex. Nov. 21, 2008) Brister)(oil and gas lease)
WAGNER & BROWN, LTD. ET AL. v. JANE TURNER SHEPPARD, INDIVIDUALLY AND AS INDEPENDENT
EXECUTRIX OF THE ESTATE OF SYBIL TURNER, DECEASED; from Upshur County; 6th district
(06-05-00023-CV, 198 SW3d 369, 07-14-06)
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to the
trial court.
Justice Brister delivered the opinion of the Court.
(Justice Willett not sitting)

Choice of Law: Case remanded for application of Louisiana law
Sonat Exploration Co. v. Cudd Pressure Control, Inc. No. 06-0979 (Tex. Nov. 21, 2008) (Brister)
(choice of law when no express provision in the contract, indemnity, Rule 11 Agreements)
SONAT EXPLORATION COMPANY v. CUDD PRESSURE CONTROL, INC.; from Harrison County; 6th
district (06-03-00077-CV, 202 SW3d 901, 09-26-06) 2 petitions
The Court affirms the court of appeals' judgment.
Justice Brister delivered the opinion of the Court.

Justice Brister would address race-based jury strike and Batson challenge problems by
abolishing peremptory challenges altogether
Davis v. Fisk Electric Co., No. 06-0162 (Tex. Sep. 26, 2008)(Jefferson)
(jury selection, denial of Batson challenge to race-based juror strike was error, new trial ordered)
Justice Brister delivered a concurring opinion, in which Justice Medina joined as to Part III.

Reliance Steel & Aluminum Co. v. Sevcik, No. 06-0422 (Tex. Sep. 26, 2008)(Brister)
(evidence of defendant's wealth in accident PI case not admissible, jury verdict reversed)
RELIANCE STEEL & ALUMINUM CO. AND SAMUEL ALVARADO v. MICHAEL SEVCIK AND CATHY LOTH;
from Waller County; 13th district (13-03-00407-CV, ___ SW3d ___, 03-09-06)
respondents' motion to strike petitioners' brief on the merits dismissed as moot
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Brister delivered the opinion of the Court.

Columbia Medical Center of Los Colinas v. Hogue, No. 04-0575 (Tex. Aug. 29, 2008)(Wainwright)
(HCLC med-mal gross negligence damages, contributory negligence, trifurcation)
Justice Brister delivered a concurring opinion opposing trifurcation of trial, in which Justice Medina
joined. Justice Green delivered an opinion concurring in part and dissenting in part (opposing gross
negligence damages) in which Justice Hecht joined.

In re Baylor Medical Center at Garland, No. 06-0491 (Tex. Aug. 29, 2008)(Brister)
(HCLC, mandamus proceeding abated to afford new trial judge opportunity to reconsider issue of granting
/ ungranting new trial)
IN RE BAYLOR MEDICAL CENTER AT GARLAND; from Dallas County; 5th district
(05-05-01663-CV, ___ SW3d ___, 01-04-06)
abatement order issued
stay order issued
The Court abates this cause pursuant to Texas Rule of Appellate Procedure 7.2.
Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
O'Neill, Justice Wainwright, Justice Green, Justice Medina, and Justice Willett joined.
Justice Johnson delivered a dissenting opinion. (would address problem raised by the case through
rulemaking)

In re Poly-America, LP, No. 04-1049 (Tex. Aug. 29, 2008)(O'Neill)
(arbitration in employment context, retaliatory discharge, mandamus review of order compelling arbitration)
Justice Brister delivered a dissenting opinion.
(Justice Willett not sitting)

Kerlin v. Sauceda, No. 05-0653 (Tex. Oct. 10, 2008)(substituted Opinion by O'Neill)
(oil and gas law, statute of limitations not tolled)
Kerlin v. Sauceda, No. 05-0653 (Tex. Aug. 29, 2008)(Original, withdrawn Opinion by O'Neill)
(oil and gas royalties, claims barred by limitations)
Justice Brister delivered a concurring opinion, in which Justice Hecht, Justice Medina, and Justice
Willett joined.

In Re McAllen Medical Center, No. 05-0892 (Tex. Aug 29, 2008)(Corrected Opinion by Brister)
IN RE MCALLEN MEDICAL CENTER, INC., D/B/A MCALLEN MEDICAL CENTER AND UNIVERSAL HEALTH
SERVICES, INC.; from Hidalgo County; 13th district
(13-05-00441-CV, ___ SW3d ___, 10-05-05)
real parties in interest's motion for oral argument denied
corrected opinion issued

G.E. v. Moritz, No. 04-0871 (Tex. June 13, 2008)(Brister)
(premises liability, independent contractor, personal injury)
GENERAL ELECTRIC COMPANY v. ARTHUR LEE MORITZ; from Tarrant County; 2nd district (02-03-
00038-CV, ___ SW3d ___, 05-20-04)
2 petitions The Court reverses the court of appeals' judgment and renders judgment.
Justice Brister delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice
Medina, and Justice Willett joined.
Justice Green delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Johnson joined.
(Justice O'Neill not sitting)

Leland, DDS v. Brandal, No. 06-1028 (Tex. June 13, 2008)(O'Neill)
(HCLC 30-day-extension to file expert report)
Justice Scott Brister delivered a dissenting opinion.

In Re McAllen Medical Center, Inc., No. 05-0892 (Tex. May 16, 2008) (Majority Opinion by Scott Brister)
(mandamus relief available to compel dismissal of med. mal suits)
IN RE MCALLEN MEDICAL CENTER, INC., D/B/A MCALLEN MEDICAL CENTER AND UNIVERSAL HEALTH
SERVICES, INC.; from Hidalgo County; 13th district (13-05-00441-CV, ___ S.W.3d ___, 10-05-05)
real parties in interest's motion to abate dismissed as moot
relators' unopposed motion for partial dismissal granted
real parties in interest's motion to seal document granted
relators' motion to seal motion exhibits and restrict review to in camera inspection only granted
The Court conditionally grants the petition for writ of mandamus.
Justice Brister delivered the opinion of the Court, in which Justice Hecht, Justice Medina, Justice Green,
Justice Johnson and Justice Willett joined.
Justice Wainwright delivered a dissenting opinion, in which Chief Justice Jefferson and Justice O'Neill
joined.

Perry Homes v. Cull, No. 05-0882 (Tex. May 2, 2008)(Opinion by Scott A. Brister)
(arbitration award to homeowners in residential construction dispute vacated)
05-0882 PERRY HOMES, A JOINT VENTURE, HOME OWNERS MULTIPLE EQUITY, INC., AND
WARRANTY UNDERWRITERS INSURANCE COMPANY v. ROBERT E. CULL, AND S. JANE CULL; from
Tarrant County; 2nd district (02-04-00052-CV, 173 S.W.3d 565, 08-31-05)
The Court reverses the court of appeals' judgment, vacates the arbitration award, and remands the case
to the trial court.
Justice Brister delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice Wainwright,
and Justice Medina joined, and in which Chief Justice Jefferson, Justice Green, Justice Johnson, and
Justice Willett joined as to parts I-V.
Justice O'Neill delivered a concurring opinion.
Justice Johnson wrote an opinion concurring and dissenting in part, which was joined by Chief Justice Jefferson and
Justice Green
Justice Willett delivered an opinion concurring in part and dissenting in part.
Opinion below: Perry Homes v. Cull, 02-04-00052-CV, (Tex.App.- Fort Worth, Aug 31, 2005, pet . filed)(reversed, and
arbitration award for home owners vacated)

Igal v. Brightstar Information Tech Group. Inc., No. 04-0931(Tex. May 2, 2008)
(Texas Pay Day Act claim, res judicata, claim preclusion based on agency ruling, agency authority)
The Court's opinion of December 7, 2007 is withdrawn and the opinion of this date is substituted.
The dissenting opinion by Justice Brister and the judgment, issued December 7, 2007, remain in
place.

In the Matter of H.V ., No. 06-0005 (Tex. Apr. 11, 2008)(Brister) (juvenile law, Miranda warning,
requirements for effective invocation of right to counsel, suppression of confession, exclusion of evidence)
IN THE MATTER OF H.V.; from Tarrant County; 2nd district (02-04-00029-CV, 179 S.W.3d 746, 11-17-05)
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the
trial court.
Justice Brister delivered the opinion of the Court, in which Justice O'Neill, Justice Medina, Justice Johnson,
and Justice Willett joined.
Chief Justice Jefferson delivered an opinion concurring in part and dissenting in part, in which Justice
Wainwright and Justice Green joined, and in which Justice Hecht joined as to Parts I, III, and V.

Lewis, MD v. Funderburk, No. 06-0518 (Tex. Apr. 11, 2008) (Brister) (HCLC, interlocutory appeal)
RORY LEWIS, M.D. v. DEWAYNE FUNDERBURK, AS NEXT FRIEND OF WHITNEY FUNDERBURK; from
Limestone County; 10th district (10-05-00197-CV, 191 S.W.3d 756, 04-05-06)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined.
Justice O'Neill delivered a concurring opinion.
Justice Willett delivered a concurring opinion.

Texas Mutual Ins. Co. v. Ledbetter, No. 06-0814 (Tex. Apr. 4, 2008)(Brister)
(workers comp, subrogation claim)
TEXAS MUTUAL INSURANCE COMPANY v. PAULA LEDBETTER, REPRESENTATIVE OF THE ESTATE OF
CHARLES WADE LEDBETTER, INDIVIDUALLY AND AS NEXT FRIEND OF DUSTIN WADE LEDBETTER, A
MINOR, AND TONJA LEDBETTER AND JAMIE LEDBETTER, INDIVIDUALLY; from Jones County; 11th
district (11-05-00098-CV, 192 S.W.3d 912, 06-01-06) 2 petitions
motion for emergency relief from declaratory judgment action dismissed as moot
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the
trial court.
Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
O'Neill, Justice Wainwright, Justice Medina, Justice Green, and Justice Willett joined, and in which Justice
Johnson joined as to Parts I through III and Part V.

Chu v. Hong, No. 06-0127 (Tex. Mar. 28, 2008)(Brister)(family law, divorce, property transfer to third
parties, fraud on community by spouse not actionable as independent tort, no double recovery)
WILLIAM CHU v. CHONG HUI HONG; from Tarrant County; 2nd district (02-04-00279 CV, 185 S.W.3d 507,
10-20-05)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Brister delivered the opinion of the Court.

Owe n s & Minor, Inc. v . Ansell Healthcare Products, Inc., No. 06-0322 (Tex. Mar 28, 2008)(Green) (cert.
question from 5th Cir.) (products liability, indemnification, litigation costs)
Justice Brister delivered a concurring opinion.
Justice O'Neill delivered a dissenting opinion, in which Justice Medina, Justice Johnson, and Justice Willett
joined.

In Re Jorden, M.D ., No. 06-0369 (Tex. Mar. 28, 2008)(Brister)
(HCLC, MedMal, permissibility of presuit discovery, Rule 202 deposition)
IN RE JACK JORDEN, M.D., ET AL.; from Smith County; 12th district (12-06-00040-CV, 191 S.W.3d 483,
04-27-06)
relators' joint motion for emergency temporary relief dismissed as moot
The Court conditionally grants the petition for writ of mandamus.
Justice Brister delivered the opinion of the Court.
Justice O'Neill delivered a concurring opinion

New Texas Auto Auction Services, LP. v. Gomez de Hernandez, No. 06-0550 (Tex. Mar. 28, 2008)
(Brister)(consumer law, no auctioneer liability for selling defective car, wrongful death)
NEW TEXAS AUTO AUCTION SERVICES, L.P. D/B/A BIG H AUTO AUCTION v. GRACIELA GOMEZ DE
HERNANDEZ, ET AL.; from Hidalgo County; 13th district (13- 03-00728-CV, 193 S.W.3d 220, 04-06-06)
The Court reverses the court of appeals' judgment and reinstates the trial court's judgment.
Justice Brister delivered the opinion of the Court.

Bowden v. Phillips Petroleum Co., No. 03-0824 (Tex. Feb. 15, 2008)(Justice Wainwright)
(class action de-certification, royalty owners, interlocutory appeal)
(Justice Brister not sitting)