Texas Supreme Court Opinions (Tex. 2011 2010 2009 2008)

Texas Supreme Court Opinions
by Justice Phil Johnson,
Including Dissents and Concurrences

Bic Pen Corp. v. Carter, No. 09-0039 (Tex. June 17, 2011)(Johnson)(product liability)
Six-year-old Brittany Carter was burned when her five-year-old brother accidently set fire to her dress
with a BIC lighter. The trial court entered judgment against BIC based on jury findings that the lighter
was defectively designed and manufactured and that each of the defects caused Brittany’s injuries. The court of appeals affirmed
based on the defective design finding and did not reach BIC’s other issues. BIC Pen Corp. v. Carter, 171 S.W.3d 657, 662 (Tex.
App.—Corpus Christi 2005), rev’d 251 S.W.3d 500 (Tex. 2008). In a prior appeal we held that the design defect claim was
preempted by federal law and remanded the case to the court of appeals. BIC Pen Corp. v. Carter, 251 S.W.3d 500, 511 (Tex.
2008). The court of appeals then affirmed the trial court’s judgment based on the manufacturing defect finding. ___ S.W.3d ___.
We conclude that no evidence supports the finding that a manufacturing defect caused Brittany’s injuries. We reverse and render
judgment for BIC.
Conclusion. The facts of this case are unfortunate. Nevertheless, we must apply established legal principles in reviewing the
parties’ positions. In applying those principles, we conclude there is legally insufficient evidence to support the finding that
manufacturing defects in BIC’s Subject Lighter were a cause-in-fact of Brittany’s injuries. We reverse the court of appeals’
judgment and render judgment for BIC.
BIC PEN CORPORATION v. JANACE M. CARTER, AS NEXT FRIEND OF BRITTANY CARTER; from Matagorda County; 13th district
(13-03-00560-CV, ___ SW3d ___, 08-18-05) 2 petitions
The Court reverses the court of appeals' judgment and renders judgment.
Justice Johnson delivered the opinion of the Court. [pdf]
(Justice Green not sitting)
See E-briefs in 09-0039 BIC PEN CORP. v. CARTER

SC I v. Guerra, No. 09-0941 (Tex. Jun 17, 2011)(Johnson)(corps improperly moved by cemetery
employees)
In this appeal we address whether the evidence was sufficient to support jury findings that (1) both the corporation that owned and
operated a cemetery and its parent corporation were liable for actions of the cemetery’s employees, and (2) the daughters and
widow of a decedent suffered compensable mental anguish because the decedent’s body was disinterred and moved to another
grave without permission. We also address whether evidence of other lawsuits against the cemetery owner was properly
admitted. Marcos Guerra was buried at Mont Meta Memorial Park cemetery in a plot that had been sold to someone else. His
family refused the cemetery’s request that it be allowed to move the body to another burial plot, but the cemetery did so anyway.
When family members discovered that Mr. Guerra’s body had been moved, his daughters and widow sued both SCI Texas
Funeral Services, Inc. d/b/a Mont Meta Memorial Park (SCI Texas), the corporation that owned and operated the cemetery, and its
parent corporation, SCI International Corporation (SCI International). Pursuant to a jury verdict, the trial court rendered judgment
against both corporations for actual and exemplary damages. The court of appeals modified the judgment as to exemplary
damages and otherwise affirmed.
We hold that there was legally insufficient evidence to support either the liability findings against SCI International or the mental
anguish findings in favor of Mr. Guerra’s daughters. We further hold that the trial court erred by admitting evidence of other
lawsuits, verdicts, and judgments against SCI Texas. We reverse and render in part and remand for a new trial in part.
Conclusion. We reverse the judgment of the court of appeals. We render judgment that (1) Julie, Gracie, and Mary Ester take
nothing from SCI International and SCI Texas and (2) Mrs. Guerra take nothing from SCI International. Mrs. Guerra’s claim
against SCI Texas is remanded for a new trial.
SERVICE CORPORATION INTERNATIONAL AND SCI TEXAS FUNERAL SERVICES, INC., D/B/A MONT META
MEMORIAL PARK v. JUANITA G. GUERRA, JULIE ANN RAMIREZ, GRACIE LITTLE AND MARY ESTHER
MARTINEZ; from Cameron County; 13th district (13-07-00707-CV, ___ SW3d ___, 10-08-09)
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to the trial
court.
Justice Johnson delivered the opinion of the Court. [pdf]
See E-briefs in 09-0941 SERVICE CORP. INT'L v. GUERRA
In re Reece, No. 09-0520 (Tex. May 27, 2011)(Guzman)
It is well-rooted in our jurisprudence that contempt is a broad and
inherent power of a court. But, we have also recognized that despite
the breadth and necessity of that power, it is a power that must be exercised with caution. Today, we decide as a matter of first
impression whether a trial court may hold a litigant in contempt for perjury committed during a deposition. We are further
presented with a question arising from the bifurcated nature of the Texas judiciary and our limited habeas jurisdiction: whether we
should exercise our mandamus jurisdiction to provide a forum for a civil litigant who is deprived of liberty pursuant to a court’s
contempt order, and the Court of Criminal Appeals has declined to exercise its habeas jurisdiction.
In the underlying civil case, the relator was held in contempt and confined for perjuring himself during a deposition. The relator
challenged his confinement by seeking a writ of habeas corpus in the Court of Criminal Appeals, but that court declined to
exercise its jurisdiction citing, among other things, the civil nature of the case. The Court of Criminal Appeals directed the relator to
pursue his remedies in this Court. Because we lack habeas jurisdiction in this case, the relator pursued relief by filing the instant
petition for writ of mandamus to challenge his confinement.
We conclude the trial court abused its discretion by holding the relator in contempt for perjury occurring during a deposition,
because such perjury did not obstruct the operation of the court. Further, because the underlying suit is civil in nature, and the
Court of Criminal Appeals declined to grant the relator leave to file a habeas petition in that court, we hold the relator has no
adequate remedy by appeal and therefore mandamus is the appropriate remedy to correct the trial court’s abuse of discretion. We
conditionally grant relief.
IN RE COY REECE; from Dallas County; 5th district (05-09-00609-CV, ___ SW3d ___, 06-11-09)
motion to dismiss for lack of jurisdiction denied
motion to revoke bond denied
The Court conditionally grants the writ of mandamus.
Justice Guzman delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice
Medina, Justice Green, and Justice Lehrmann joined. [pdf]
Justice Johnson delivered a dissenting opinion. [pdf]
The Court of Criminal Appeals has general original habeas jurisdiction, Tex. Const. art. V, § 5; Ex parte Thompson, 273 S.W.3d
177, 181 (Tex. Crim. App. 2008), while this Court’s habeas jurisdiction is limited. Our habeas jurisdiction exists in matters where
a contemnor is confined because he or she violated “an order, judgment, or decree previously made, rendered, or entered by the
court or judge in a civil case.” Tex. Gov’t Code § 22.002(e).
Although our habeas jurisdiction is limited, our mandamus jurisdiction is broad. See Tex. Const. art. V, § 3(a); Tex. Gov’t Code §
22.002(a). And for the reasons the Court sets out, I agree that our broad mandamus jurisdiction encompasses the matters set
out in Reece’s petition. Nevertheless, and as SB International, Inc. argues, Reece substantively petitions this Court for habeas
relief. Under the circumstances I would refrain from granting mandamus relief for the reasons Justice Willett sets out in part IV of
his dissent, which I join. Because I disagree that we should grant mandamus relief, I respectfully dissent.
Justice Willett delivered a dissenting opinion, in which Justice Johnson joined as to Part IV. [pdf]
See Electronic Briefs in 09-0520 IN RE COY REECE

Reid Road MUD No. 2. v. Speedy Stop Food Stores, Ltd.,
No. 09-0396 (Tex. Mar. 11, 2011)(Johnson)
In this case we address two evidentiary questions. The first is whether an employee of the corporate general partner of a limited
partnership qualifies to testify about the fair market value of partnership property under either the Property Owner Rule or Texas
Rule of Evidence 701. The second is whether the condemning authority in a condemnation proceeding adopted the damages
opinion of an appraiser by presenting the appraiser’s testimony and written appraisal in the special commissioners’ hearing.
Under the record before us, we answer the first question “No,” the second question “Yes,” and affirm the judgment of the court of
appeals.
The trial court did not abuse its discretion by excluding the damages opinion LaBeff expressed in his affidavit. However, the court
erred by excluding Ambrose’s testimony and appraisal as to Speedy Stop’s damages.
We affirm the court of appeals’ judgment reversing the judgment of the trial court and remanding the case for further proceedings.
REID ROAD MUNICIPAL UTILITY DISTRICT NO. 2 v. SPEEDY STOP FOOD STORES, LTD.; from Harris County;
14th district (14-07-00225-CV, 282 SW3d 652, 02-03-09)
The Court affirms the court of appeals' judgment.
Justice Johnson delivered the opinion of the Court. [pdf]
Justice Willett delivered a concurring opinion, in which Justice Lehrmann joined. [pdf]
(Justice Guzman not sitting)
View Electronic Briefs 09-0396
Justice Willett delivered a concurring opinion, in which Justice Lehrmann joined. [pdf]
(Justice Guzman not sitting)
View Electronic Briefs 09-0396
REID ROAD MUNICIPAL UTILITY DIST. NO. 2 v. SPEEDY STOP FOOD STORES, LTD.

Samlowski MD v. Wooten, Carol, No. 08-0667 (Tex. Feb. 25, 2011)(Medina)
Texas Civil Practice and Remedies Code section 74.351 requires that a trial court dismiss a health care liability claim unless the
claimant serves an expert report within 120 days after filing suit. Tex. Civ. Prac. & Rem. Code § 74.351(b). This dismissal
requirement is subject to the trial court’s discretion to grant one thirty-day extension for the claimant to cure a timely served but
deficient report. Id. § 74.351(c). The trial court in this health care liability case determined that claimant’s timely served report was
deficient and dismissed her suit without granting her request for an extension of time to cure the report. The court of appeals
agreed the report was deficient but concluded the trial court abused its discretion by denying the requested extension. 282 S.W.3d
82, 91.
We granted the petition to consider under what circumstances a trial court might abuse its discretion when denying such an
extension. Like most cases involving trial court discretion, a single rule will not fit every situation, but generally a trial court should
grant an extension when the deficient report can be cured within the thirty-day period the statute permits. The court of appeals
concluded, among other things, that the case should be remanded to the trial court for further proceedings, and a majority of the
Court agrees with that judgment. There is no majority reasoning for why we remand, however. Three members of the Court
essentially agree with the court of appeals’ analysis, three members disagree with that analysis and would reverse and render,
and three members disagree with the court of appeals’ analysis but would nevertheless remand in the interests of justice. I am in
this last group.
Because the record does not establish that the deficient expert report would have been cured if the extension had been granted in
this case, I cannot say that the trial court abused its discretion in denying the extension. Although I disagree with the court of
appeals’ analysis of the statute and its application of the abuse of discretion standard, I conclude that the interests of justice
require a remand to the trial court in this case. Accordingly, I would affirm the court of appeals’ judgment remanding this cause as
modified by this opinion.
EBERHARD SAMLOWSKI, M.D. v. CAROL WOOTEN; from Johnson County; 10th district (10-07-00305-CV, 282
SW3d 82, 05-21-08)
The Court modifies the court of appeals' judgment and affirms that judgment as modified.
Justice Medina announced the judgment of the Court and delivered an opinion, in which Chief Justice Jefferson
and Justice Hecht joined. [12-page opinion in pdf]
Justice Guzman filed an opinion concurring in the judgment, in which Justice Lehrmann joined and in which
Justice Wainwright joined Parts I & II.B. [8-page opinion in pdf]
Justice Wainwright delivered an opinion dissenting in part and concurring in the judgment. [6-page opinion in
pdf]
Justice Johnson delivered a dissenting opinion, in which Justice Green and Justice Willett joined. [12-
page opinion in pdf]
View Electronic Briefs in Case No. 08-0667 EBERHARD SAMLOWSKI, M.D. v. WOOTEN

Molinet v. Kimbrell, MD, No. 09-0544 (Tex. Jan. 21, 2011)(Johnson)
In this case we consider a statutory conflict regarding whether limitations bars Jeremy Molinet’s health care liability claims
against two doctors he sued after they had been designated as responsible third parties pursuant to Texas Civil Practice and
Remedies Code section 33.004. See Tex. Civ. Prac. & Rem. Code § 33.004.1 Molinet joined the doctors as defendants within sixty
days after they were designated as responsible third parties but more than two years after they last treated him. Section 33.004(e)
provides that if a defendant designates a responsible third party the claimant may, within sixty days, join the designated party
“even though such joinder would otherwise be barred by limitations.” Id. However, section 74.251(a) provides a two-year
limitations period for health care liability claims that applies “[n]otwithstanding any other law,” and section 74.002(a) provides that
chapter 74 controls in the event its provisions conflict with other law. See id. §§ 74.251(a), 74.002(a).
We hold that section 74.251(a) prevails and Molinet’s claims against the doctors are barred by its two-year limitations period. [...]
The court of appeals correctly concluded that section 74.251(a) bars Molinet’s suit against Drs. Horan and Kimbrell. Accordingly,
we affirm the court of appeals’ judgment.
JEREMY MOLINET v. PATRICK KIMBRELL, M.D. AND JOHN HORAN, M.D.; from Bexar County; 4th district (04-
08-00379-CV, 288 SW3d 464, 12-31-08)
The Court affirms the court of appeals' judgment.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, Justice Green, Justice Willett, and Justice Guzman joined. [16-page opinion in pdf]
Justice Lehrmann delivered a dissenting opinion, in which Justice Medina joined. [9 page opinion in pdf]
View Electronic Briefs in 09-0544 MOLINET v. PATRICK KIMBRELL, M.D

Texas Lottery Comm'n v. First State Bank of DeQueen, No. 08-0523
(Tex. Oct. 1, 2010)(Johnson) (assignability of lottery wins,
statutory construction, reconciliation of alleged conflict)
TEXAS LOTTERY COMMISSION v. FIRST STATE BANK OF DEQUEEN,
TONE STREET CAPITAL, INC., AND CLETIUS L. IRVAN; from Travis County;
3rd district (03-07-00249-CV, 254 SW3d 677, 05-16-08)
motion to substitute parties dismissed as moot
The Court affirms the court of appeals' judgment.
Justice Johnson delivered the opinion of the Court. [pdf]
View Electronic Briefs in 08-0523 TEXAS LOTTERY COMM'N v. FIRST STATE BANK OF DEQUEEN

Whirlpool Corp. v. Camacho, No. 08-0175 (Tex. Dec. 11, 2009)(Johnson)
(product liability suit, design defect, laundry dryer fire, expert testimony)
(judgment on jury verdict reversed)
WHIRLPOOL CORPORATION v. MARGARITA CAMACHO, ET AL.; from Hidalgo County;
13th district (13-05-00361-CV, 251 SW3d 88, 01-17-08)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Phil Johnson delivered the opinion of the Court [in pdf]
(Justice Guzman not sitting)
View Electronic Briefs WHIRLPOOL CORPORATION v. CAMACHO

Akin, Gump, Strauss, Hauer & Feld, LLP v. National Development and Research Corp.
No. 07-0818 (Tex. Oct. 30, 2009)(Johnson)(legal malpractice, attorney's caused by malpractice as recoverable
damages, the American Rule)(amount of fees to be determined upon remand)
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. v. NATIONAL DEVELOPMENT AND RESEARCH
CORPORATION; from Dallas County; 5th district (05-06-01024-CV, 232 SW3d 883, 08-29-07)
2 petitions
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case in part to
the court of appeals.
Justice Johnson delivered the opinion of the Court.

SUPREME COURT ORDERS TRIAL COURTS TO EXPLAIN WHY THEY GRANTED NEW TRIALS: "In the
Interest of Justice" - which is a common label for judicial discretion - does not pass muster.
In Re Columbia Medical Center of Las Colinas
No. 06-0416 (Tex. Jul. 3, 2009)(Johnson) (mandamus granted) (jury trial, reasons for trial court judge
disregarding jury verdict and granting new trial required) (mandamus granted to order trial court to elaborate on
reasons for setting aside jury verdict and granting new trial)(also see --> JNOV)
IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, SUBSIDIARY, L.P. D/B/A LAS COLINAS MEDICAL
CENTER, ANTONETTE CONNER, AND ANNA MATHEW; from Dallas County;
5th district (05-06-00611-CV, ___ SW3d ___, 05-12-06 Opinion of the Dallas Court of Appeals) as reinstated;
stay order issued August 29, 2008, lifted
The Court conditionally grants in part and denies in part the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister,
and Justice Willett joined.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice
Green joined.
E -Briefs in Tex 2009 No. 06-0416 IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS
The Texas Constitution provides that the right of trial by jury “shall remain inviolate.” Tex. Const. art. 1, § 15.
The issue before us is whether, after a jury has rendered its verdict, the trial court may disregard that verdict,
grant a new trial, and explain its action only as being “in the interests of justice and fairness.” We conclude that
just as appellate courts that set aside jury verdicts are required to detail reasons for doing so, trial courts must
give more explanation than “in the interest of justice” for setting aside a jury verdict. We conditionally grant
mandamus relief directing the trial court to more specifically set out the reasons for which it set aside the jury
verdict and granted a new trial.
Conclusion: We conditionally grant relief. We direct the trial court to specify the reasons it refused to enter
judgment on the jury verdict and ordered a new trial as to Columbia. The reasons should be clearly identified
and reasonably specific. Broad statements such as “in the interest of justice” are not sufficiently specific. We are
confident the trial court will comply. The writ will issue only if it fails to do so.

AFTER MANDAMUS PETITION-ABATEMENT PING-PONG INVOLVING THREE DIFFERENT TRIAL COURT
JUDGES, SUPREMES ORDER THE LAST ONE TO SERVE UP A VALID EXPLANATION WHY NEW TRIAL WAS
GRANTED.
In Re Baylor Medical Center at Garland,
No. 06-0491 (Tex. Jul 3, 2009) (mandamus granted)(Johnson)
(trial judge granted new trial and then resigned, mandamus abatement, current judge ordered to provide reason
for granting new trial after jury verdict)
IN RE BAYLOR MEDICAL CENTER AT GARLAND; from Dallas County;
5th district (05-05-01663-CV, ___ SW3d ___, 01-04-06 Opinion of the Dallas Court below)
as reinstated, stay order issued August 29, 2008, lifted
The Court conditionally grants in part and denies in part the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister,
and Justice Willett joined.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice
Green joined.

SUPREMES AGAIN GRANT REVIEW TO VINDICATE HEALTH CARE DEFENDANT'S CLAIM TO SANCTIONS
AFTER ABORTIVE MED-MAL SUIT - INTERLOCUTORY APPEAL CONCERNING EXPERT REPORT
OBJECTIONS WAS NOT REQUIRED AS A PRELUDE.
Hernandez, MD v. Ebrom, No. 07-0240 (Tex. Jul 3, 2009)(Johnson) (HCLC, does med-mal defendant forfeit
right to seek sanctions by failing to pursue by interlocutory appeal challenge to expert report where objection
was overruled by the trial court?)
MIGUEL HERNANDEZ, M.D. v. JULIOUS EBROM AND RICHARD HUNNICUTT; from Hidalgo County;
13th district (13-06-00053 CV, ___ SW3d ___, 02-08-07 Opinion of the court below)
opposed motion for leave to file post-submission brief granted
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister,
Justice Green, and Justice Willett joined. [pdf]
Chief Justice Jefferson delivered a dissenting opinion, in which Justice O'Neill and Justice Medina joined. [pdf]
View Electronic Briefs in Tex. 2009 No. 07-0240 MIGUEL HERNANDEZ, M.D. v. EBROM
A defendant in a health care liability claim may appeal from the interlocutory order denying its objection to the
plaintiff’s expert report. The statutes authorizing the defendant’s objection and appeal do not impose
consequences if an interlocutory appeal is not pursued. In this case, we consider whether a defendant health
care provider’s failure to challenge the adequacy of an expert report by interlocutory appeal precludes a
challenge of the report by appeal from a final judgment when the plaintiff later nonsuits before trial. The court of
appeals held it does; we hold it does not. We reverse and remand to the court of appeals.

ANOTHER NEW TRIAL - ANOTHER MANDAMUS TO GET THE TRIAL COURT TO JUSTIFY THE ACT.
In Re E.I. Du Pont de Nemours and Co., No. 08-0625 (Tex. Jul. 3, 2009)(Johnson)
(mandamus granted: trial court's grant of new trial following jury verdict requires explanation)
IN RE E.I. DU PONT DE NEMOURS AND COMPANY; from Jefferson County;
9th district (09-08-00318-CV, ___ SW3d ___, 07-24-08 Opinion of the Ninth Court of Appeals)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally
grants in part and denies in part the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister,
and Justice Willett joined. [pdf]
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice
Green joined. [pdf]
Electronic Briefs in Tex. 2009 No. 08-0625 IN RE E.I. DU PONT DE NEMOURS AND CO.
At issue in this mandamus proceeding is whether the trial court abused its discretion by disregarding the jury
verdict and granting a new trial without giving its reasons for doing so. Based on In re Columbia Medical Center
of Las Colinas, ___ S.W.3d ___ (Tex. 2009), we hold that it did and grant relief.
Without hearing oral argument, we conditionally grant DuPont’s petition for writ of mandamus. See Tex. R. App.
P. 52.8(c). The trial court is directed to specify the reasons for which it disregarded the jury verdict and ordered
a new trial. We are confident the trial court will comply, and the writ will issue only if it fails to do so.

JURY INSTRUCTION ERROR FOUND ON DOC AS INDEPENDENT CONTRACTOR
Columbia Rio Grande Healthcare, LP v. Hawley, No. 06-0372 (Tex. Jun. 5, 2009)(Johnson)(HCLC, med-
mal suit against hospital, physician as independent contractor, lost chance of survival, jury instructions)(trial
court found to have erred in refusing jury instructions; retrial ordered on remand)
COLUMBIA RIO GRANDE HEALTHCARE, L.P. D/B/A RIO GRANDE REGIONAL HOSPITAL v. ALICE H. HAWLEY
AND JAMES A. HAWLEY; from Hidalgo County; 13th district (13-03-00427-CV, 188 SW3d 838, 03-23-06)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, Justice Brister, Justice Green, and Justice Willett joined, and in all but Part II-D 2 of which Justice
O'Neill and Justice Medina joined.

Harris County Hospital District v. Tomball Regional Hospital, No. 05-0986 (Tex. May 1, 2009)
(Johnson)(sovereign immunity of hospital district, Tooke v. City of Mexia progeny, sue and be sued language)
HARRIS COUNTY HOSPITAL DISTRICT v. TOMBALL REGIONAL HOSPITAL; from Harris County; 14th district
(14-04-00263-CV, 178 SW3d 244, 07-28-05)
The Court reverses the court of appeals' judgment and dismisses the case.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Medina,
and Justice Green joined.
Chief Justice Jefferson delivered a dissenting opinion, in which Justice O'Neill, Justice Brister, and Justice Willett
joined.

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.

Substituted Concurrence on Motion for Rehearing In Re Watkins, MD, No. 06-0653 (Tex. 2009)
(Substituted concurrence by Johnson)(HCLC failure to comply with expert report requirement in health care
liability suit, proper appellate remedy)
IN RE MARY LOUISE WATKINS, M.D.; from Cameron County; 13th district (13-05-00765-CV & 13-06-00080-CV,
192 SW3d 672, 05-04-06)
The concurring opinion by Justice Johnson issued January 23, 2009 is withdrawn and the concurring opinion
issued this date is substituted. The remaining opinions, issued January 23, 2009, remain in place
.
Mann Frankfort Stein & Lipp Advisors v. Fielding, No. 07-0490 (Tex. Apr. 17, 2009)(Johnson)
(enforceability of covenant not to compete, at will employment, confidentiality, employment at will doctrine)
MANN FRANKFORT STEIN & LIPP ADVISORS, INC., MFSL GP, L.L.C., AND MFSL EMPLOYEE INVESTMENTS,
LTD. v. BRENDAN J. FIELDING; from Harris County; 1st district (01-05-01080-CV, 263 SW3d 232, 05-03-
07)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Johnson delivered the opinion of the Court.
Justice Hecht delivered a concurring opinion

Ford Motor Co. v. Castillo, No. 06-0875 (Tex. 2009)(Johnson)
(product liability defendant given opportunity to conduct discovery on affirmative defense to breach of
settlement claim based on improper juror conduct)(Ford given chance to show it was justified in backing out of
settlement agreement because of allegedly miscommunication from jury that precipitated settlement)
FORD MOTOR COMPANY v. EZEQUIEL CASTILLO, ET AL.; from Cameron County; 13th district (13-04-00638-
CV, 200 SW3d 217, 06-08-06)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Johnson delivered the opinion of the Court.
Justice Wainwright delivered a concurring opinion, in which Justice Medina joined.

Prodigy Communications Corp. v. Agricultural Excess & Surplus Insurance, No. 06-0598 (Tex. Mar. 27, 2009)
(Jefferson) (insurance law, effect of noncompliance with prompt notice requirement as condition precedent for
coverage of claim, prejudice factor)
PRODIGY COMMUNICATIONS CORP. v. AGRICULTURAL EXCESS & SURPLUS INSURANCE
COMPANY, N/K/A GREAT AMERICAN E & S INSURANCE COMPANY AND GREAT AMERICAN
INSURANCE COMPANY; from Dallas County; 5th district (05-05-00442-CV, 195 SW3d 764, 05-30-06)
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to
the trial court.
Chief Justice Jefferson delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright,
Justice Brister, Justice Medina, and Justice Green joined.
Justice Wainwright delivered a concurring opinion.
Justice Johnson delivered a dissenting opinion, in which Justice Hecht and Justice Willett joined.

In re Labatt Food Service, LP, No. 07-0419 (Tex. 2009)(Johnson)
(arbitration mandamus, arbitration of wrongful death claim by nons ignatories compelled by mandamus)        IN
RE LABATT FOOD SERVICE, L.P.; from Bexar County; 4th district (04-07-00312-CV, ___ SW3d ___, 05-16-07)
The Court conditionally grants the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court.

2008 Texas Supreme Court Opinions by Justice Phil Johnson, Dissents and
Concurrences

COMPARATIVE PRODUCTIVITY: Justice Phil Johnson authored 22 of the 212 opinions issued by the Court in
FY 2008. Johnson's share includes 6 majority opinions, 3 per curiams, 6 opinions on denial of review, 4
dissents, 1 concurrence, and 1 opinion concurring in part and dissenting in part. Johnson's contribution of
opinions is average. Productivity on the court varies quite a bit. Justice Medina turned in the fewest opinions
(16); on the other end of the spectrum, Justice Brister has 38 opinions to his credit, followed by Justice O'Neill
with 32. The administrative office of the Court does not report statistics by calendar year.

In Re G.E. Co., No. 07-0195 (Tex. Dec. 5, 2008) (Johnson)
(forum non conveniens mandamus granted, asbestos suit)
IN RE GENERAL ELECTRIC COMPANY, ET AL.; from Harris County; 1st district (01-06-01105-CV, ___ SW3d
___, 03-02-07)
stay order issued March 20, 2007, lifted
The Court conditionally grants the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court.
(Justice O'Neill not sitting)

Coastal Oil & Gas Corp. v. Garza Energy Trust, No. 05-0466 (Tex. Aug. 29, 2008)(Hecht)
(oil and gas, trespass, rule of capture)
Justice Willett delivered a concurring opinion.
Justice Johnson delivered an opinion concurring in part and dissenting in part, in which Chief Justice Jefferson
joined, and in Part I of which Justice Medina 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,
plenary power)
abatement order issued | stay order issued
The Court abates this cause pursuant to Texas Rule of Appellate Procedure 7.2.
Justice Johnson delivered a dissenting opinion. (would address problem raised by the case through rulemaking)

Ulico Casualty Co. v. Allied Pilots A ssociation, No. 06-0247 (Tex. Aug. 29, 2008)(Johnson)
(insurance coverage, non-coverage claim, waiver, estoppel)
ULICO CASUALTY COMPANY v. ALLIED PILOTS ASSOCIATION; from Tarrant County; 2nd district
(02-04-00120-CV, 187 SW3d 91, 12-15-05)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Johnson delivered the opinion of the Court.
Chief Justice Jefferson delivered a concurring opinion, in which Justice O'Neill joined.

State of Texas v. Brown, No. 05-0236 (Tex. Aug. 29, 2008)(Johnson)
(condemnation, fees to landowner reversed))
THE STATE OF TEXAS v. J. GRADY BROWN, JR.; from Denton County; 2nd district
(02-04-00035-CV, 158 SW3d 68, 01-27-05)
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.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, Justice Brister, Justice Medina, Justice Green, and Justice Willett joined.
Justice O'Neill delivered an opinion concurring in part and dissenting in part.

In Interest of MN, a Child, No. 07-0698 (Tex. Aug. 29, 2008)(Johnson)
(termination of parental rights, appellate procedure, extension to file statement of points for appeal)
IN THE INTEREST OF M.N., A CHILD; from Taylor County; 11th district
(11-06-00228-CV, 230 SW3d 248, 05-10-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing
oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
O'Neill, Justice Wainwright, Justice Brister, Justice Medina, and Justice Green joined.
Justice Willett delivered a dissenting opinion.

Pleasant Glade Assembly of God v. Schubert, No. 05-0916 (Tex. June 27, 2008) (Majority Opinion by Justice
Medina) (constitutional law, church and state religion disputes, first amendment free exercise of religion clause,
exorcism of demons, intentional tort claim by church member for mental anguish damages barred by church's
religious doctrine immunity, estoppel claim rejected)
Chief Justice Jefferson delivered a dissenting opinion, in which Justice Green joined, and in Parts II-A, III, and IV
of which Justice Johnson joined.
Justice Green delivered a dissenting opinion.
Justice Johnson delivered a dissenting opinion.

FKM Partnership, Ltd. v. Bd. of Regents of Univ. of Houston System, No. 05-0661 (Tex. Jun 6, 2008) (Phil
Johnson) (condemnation, implications of reduction of amount of land to be taken on land owner's recovery of
fees, partial nonsuit, property owner's entitlement to recovery of fees and expenses)
FKM PARTNERSHIP, LTD., A TEXAS LIMITED PARTNERSHIP v. BOARD OF REGENTS OF THE UNIVERSITY
OF HOUSTON SYSTEM; from Harris County; 14th district (14-03-00392-CV, 178 S.W.3d 1, 04-14-05) 2
petitions
The Court affirms the court of appeals' judgment and remands the case to the trial court.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
O'Neill, Justice Wainwright, Justice Brister, Justice Medina, and Justice Green joined.
Justice Willett delivered an opinion concurring in part and dissenting in part.

Perry Homes v. Cull, No. 05-0882 (Tex. May 2, 2008)(Opinion by Scott A. Brister)
(arbitration, waiver of right to compel arbitration by litigation conduct)
Justice Johnson wrote an opinion concurring and dissenting in part in Perry Homes v. Cull, which was joined by
Chief Justice Jefferson and Justice Green

Unauthorized Practice of Law Committee v. American Home Assurance Co., Inc., No. 04-0138 (Tex. Mar. 28,
2008)(Hecht) (in-house counsel, legal profession, unauthorized practice of law UPLC)
Justice Johnson delivered a dissenting opinion, in which Justice Green joined.

Fairfield Ins. Co. v. Stephens Martin Paving, LP , No. 04-0728 (Tex. Feb. 15, 2008)(Justice Wainwright)
(insurance coverage and indemnification of punitive damages arising from gross negligence)
The Court answers the question certified by the United States Court of Appeals for the Fifth Circuit.
Justice Hecht delivered a concurring opinion, in which Justice Brister, Justice Medina, and Justice Willett joined.
Justice Johnson delivered a concurring opinion.

City of Rockwall, Texas v. Hughes, No. 05-0126 (Tex. Jan 25, 2008) (Johnson) (annexation, arbitration
construction of statutory provision governing arbitration of municipal annexation disputes)
THE CITY OF ROCKWALL, TEXAS v. VESTER T. HUGHES, AS SOLE INDEPENDENT EXECUTOR OF THE
ESTATE OF W. W. CARUTH, DECEASED; from Rockwall County; 5th district (05-04-01562-CV, 153 S.W.3d
709, 01-20-2005)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice
Medina, and Justice Green joined.
Justice Willett filed a dissenting opinion, in which Justice Hecht, Justice O'Neill, and Justice Brister joined.