2008-06-13 Texas Supreme Court Opinions

WITH ALL DELIBERATE SPEED, CONSIDERATION, AND RE-CONSIDERATION

Another previously issued opinion is withdrawn and substituted with a new one (for the second time in the same case).

Evanston Ins. Co. v. Atofina Petrochemicals, Inc., No. 03-0647 (Tex. 2008, June 13, 2008) (op. on rehearing by Justice Paul W. Green)
(indemnity, additional insured, attorney's fees)
EVANSTON INSURANCE COMPANY v. ATOFINA PETROCHEMICALS, INC.; from Jefferson County; 9th district (09‑02‑00072‑CV, 104 SW3d 247, 04‑10‑03)
Atofina's motion for rehearing grantedEvanston's motion for rehearing denied
The Court's opinion and judgment of February 15, 2008 are withdrawn and the opinion and judgment of this date are issued. The concurring and dissenting opinion by Justice Hecht, issued February 15, 2008, remains in place.
The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Wainwright, Justice Brister, Justice Medina, and Justice Willett joined, and in which Justice Hecht and Justice Johnson joined as to Parts I, II.A–II.D, and II.F. [pdf]
Justice Hecht delivered an opinion concurring in part and dissenting in part, in which Justice Johnson joined. [pdf]

No duty - No liability. Supreme Court, in majority opinion by Brister, nixes premises liability suit holding that premises owner did not owe duty to warn independent contractor of hazardous condition. Three justices, including the chief, dissented.

G.E v. Mortiz, No. 04-0871 (Tex. June 13, 2008)(Opinion by Justice Scott A. Brister) (landowner premises liability, employee independent contractor, known danger, no duty holding)
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 Scott 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)

Court finds equitable subrogation standing in construction-(sub)contractor case stemming from water leak that caused major damage at hotel. Litigation seeking recovery of payments from responsible third party may proceed.

Frymire Engineering Co., Inc. v. Jomar International, Ltd., No. 06-0755 (Tex June 13, 2008)(Opinion by Justice Don R. Willett)
(construction law, equitable subrogation, subcontractor, recoupment from third party)
FRYMIRE ENGINEERING COMPANY, INC. BY AND THROUGH REAL PARTY IN INTEREST, LIBERTY MUTUAL INSURANCE COMPANY v. JOMAR INTERNATIONAL, LTD. AND MIXER S.R.L.; from Dallas County; 5th district (05‑04‑01717‑CV, 194 SW3d 713, 05‑30‑06) The Court reverses the court of appeals' judgment and remands the case to that court. Justice Don R. Willett delivered the opinion of the Court. [pdf]

Med-Mal suit remanded for trial court to consider granting 30-day extension to fix expert report ruled insufficient for the first time on appeal. Brister, writing in dissent, favors tougher rule citing legislative purpose of reining in health care liability litigation in Texas.

Leland DDS v. Brandal, No. 06-1028 (Tex. June 13, 2008)(Opinion by Justice Harriet O'Neill) (HCLC medical malpractice, 30-day extension of time to fix deficient expert report)
JOHN LELAND, D.D.S. v. GEORGE C. BRANDAL AND RUTH L. BRANDAL; from Bandera County; 4th district (04‑05‑00855‑CV, 217 SW3d 60, 09‑13‑06)
The Court affirms the court of appeals' judgment. Justice O'Neill 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. [pdf]
Justice Brister delivered a dissenting opinion. [pdf]

Anther default judgment set aside for failure to effect proper service. Defendant in suit against partnership was not named and served with citation in his indidividual capacity.

Koa Holdings, LP v. Young, No. 07-0197 (Tex. June 13, 2008)(Opinion by Justice Nathan Hecht) (restricted appeal, default judgment reversed)
KAO HOLDINGS, L.P., D/B/A SEBRING APARTMENTS AND WILLIAM KAO v. ANNIE LEE YOUNG; from Harris County; 14th district (14‑05‑00398‑CV, 214 SW3d 504, 11‑21‑06) motion to take judicial notice denied
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court modifies the court of appeals' judgment and affirms that judgment as modified. Justice Nathan Hecht delivered the opinion of the Court. [pdf]