Saturday, August 30, 2008

2008-08-29 Texas Supreme Court Plays Catch-up


As unanimously prognosticated by the web-savvy appellate intelligentsia, the Texas Supreme Court released a flood of opinions on Friday, August 29, 2008, - just in time for them to be included in the disposition tallies for the current fiscal year, which ends this weekend.

Unfortunately, the sudden burst of activity -- after a lull lasting for several weeks -- makes it well-neigh impossible for court watchers, not to mention the media and the interested public, to quickly and comprehensively assess their significance and impact. Bench, bar, litigants, and the public would be much better served if final decisions were to be delivered within one year, rather than three, and if the Supremes announced the reversal of lower court judgments, and the theories devised to justify them, at a more even and measured pace, rather than doing so in periodic avalanches. At least the current Court is predictable in that in most granted cases it will ultimately turn victors into losers, no matter how long it may take to accomplish the inevitable with proper verbiage agreeable to a majority. See Texas Supreme Court reversal rate.

Be that as it may, the Court issued opinions in 22 pending appeals. That is not to say that the Court decided 22 cases. In at least one, the Court again issued an opinion to announce petition denial and to make clear that it would not decide the issue presented for a resolution. In another case, rehearing was granted, and a clarifying follow-up opinion issued. That's all good for the final fiscal year tally. Nor does it mean that there were only 22 opinions, for a fair number of concurrences and dissents, not to mention hybrid opinions concurring and dissenting contemporaneously in part, boosted the number.

At least the Court - as an institution - can chalk up as a success the fact that it cleared out some of the backlog for which it has been taken to task lately. (Six of the cases have 2004 or 2005 cause numbers). Justices individually met the deadline for a last chance to improve (at least marginally) their opinion production stats for the current reporting period.

Some members, including one Justice who is facing re-election this fall, clearly had a greater need than others to pitch in a few more deliverables, whether deciding opinions, concurs or dissents. Other incumbents on Texas' highest court for civil appeals, of course, already have a proven track record of productivity, although even for the top performers the numbers still pale in comparison to the opinion output of the justices of the courts of appeals.

Pending review of the ream of signed opinions, concurrences, and dissents over the Labor Day weekend, here is the list of per curiams issued by the Court:

August 29, 2008 Per Curiam Opinions Issued by the Texas Supreme Court

Unifund CCR Partners v. Weaver, No. 07-0682 (Tex. Aug. 29,2008)(per curiam) (credit card debt suit, pro se litigant pays for procedural error even though debt suit may have been barred by limitations)
UNIFUND CCR PARTNERS v. KENNETH F. WEAVER; from McLennan County; 10th district
(10-06-00207-CV, 231 SW3d 441, 07-11-07)
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 renders judgment.
Per Curiam Opinion

Guitar Holding Co., LP v. Hudspeth County Underground Water Conservation District No. 1,
No. 06-0904 (Tex. Aug. 29, 2008)(suppl. opinion on rehearing) (per curiam)
(abandonment of issues on appeal)
DISTRICT NO. 1, ET AL.; from Hudspeth County; 8th district
(08-04-00296-CV & 08-05-00115-CV, 209 SW3d 172, 08-31-06)
3 motions for rehearing
judgment issued March 30, 2008, withdrawn
corrected judgment issued
Supplemental Per Curiam Opinion

Brookshire Grocery v. Goss, No. 07-0085 (Tex. Aug. 29, 2008)(per curiam)
(workplace injury, judgment for injured employee reversed, no duty)
BROOKSHIRE GROCERY COMPANY v. BARBARA GOSS; from Wood County; 6th district
(06-05-00036-CV, 208 SW3d 706, 11-20-06)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
Per Curiam Opinion

In re Kiberu, No. 07-0959 (Tex. Aug. 29, 2008)(per curiam)(presuit discovery mandamus TRCP 202)
(02-07-00312-CV, 237 SW3d 445, 11-01-07)
stay order issued November 30, 2007, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court
conditionally grants the petition for writ of mandamus.

Bismar, MD v. Morehead, No. 08-0009 (Tex. Aug. 29, 2008)(per curiam)(Med-Mal, sufficiency of expert
doctor entitled to interlocutory appeal of order denying motion to dismiss)
Tarrant County; 2nd district
(02-07-00360-CV, ___ SW3d ___, 11-29-07)
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
Per Curiam Opinion

In Interest of GB, No. 08-0380 (Tex. Aug. 29, 2008)(per curiam) (
termination of parental rights, may
ineffective assistance of counsel claims raised for the first time on appeal? Supreme Court won't tell)
IN THE INTEREST OF G.B., P.B., N.B., AND V.R., CHILDREN; from Washington County; 1st district
(01-07-00699-CV, ___ SW3d ___, 04-03-08)
Per Curiam Opinion

Thursday, August 21, 2008

Does the need to campaign for re-election undermine judicial productivity?

Statistics on current opinion production by the Texas Supreme Court could certainly be interpreted that way. They show a notable disparity in the number of opinions delivered by members of the Texas Supreme Court who face a reelection contest this year, compared to those who do not.


Although many members of the Texas judiciary are first appointed to the bench by the Governor to fill a vacancy, they must win elections to remain on the bench. True also of the Texas Supreme Court, the state's court of last resort in noncriminal matters. Three current members of the nine-seat tribunal are up for reelection this year: Chief Justice Wallace B. Jefferson and two associate justices: Dale Wainwright and Phil Johnson. Although none of the incumbents was challenged in the Republican primary, all three face Democratic opponents in November.


From January through the end of June 2008 the Texas Supreme Court issued 45 signed deciding opinions. The combined total of concurring and dissenting opinions written by individual justices was 36, bringing the total tally to 81.

For the group of justices facing elections, the average number of signed opinions was 3.3, while the mean for those of their peers who do not face the voters this year is 5.8 .

If concurring and dissenting opinions are included in the computation, the respective averages for justices facing and not facing elections are 7 and 10 respectively. See Mid-Year Tally of Texas Supreme Court Opinions and Breakdown by Author . [revised 8/26/08]

The 45 per curiam opinions released over the course of the same time period are not included as their authorship is unknown. See previous post regarding the criticism that Texas Supreme Court Justices "hide" behind per curiam opinions).

One Justice who is currently on the campaign trail has only two court opinions to his name (plus three dissents and one concurrences), which averages out to one opinion written per month. At the other end of the spectrum, the most productive jurist who does not currently face reelection authored more than twice that many.

With a total of 15 signed opinions the only female member of the Court, Justice Harriet O'Neill, led the court in opinion output. O'Neill also disagrees with the other members of the court more than any of her brethren. Indeed, the number of separate dissenting and/or concurring opinions penned by O'Neill is not only the highest for the Court as a whole; it also exceeds the number of deciding opinions Jusitce O'Neill authored on behalf of the Court.

Justices Scott A. Brister and Don R. Willet rank second on the productivity scale. Each delivered eleven. With seven separate opinions out of the total, Justice Willett - like Justice O'Neill - often finds himself at odds with the majority.

At the other extreme, Justice David Medina, wrote no dissents or concurrences at all. While not up for re-election yet, Medina is under an ethics cloud as a result of the suspected arson at his Houston area home, for which his wife has been indicted. In view of his uncertain professional and personal future, Medina needs all the support he can marshal among his peers and has every reason to eschew acrimony.


The observed discrepancy in opinion output based on whether a justice faces reelection pressures does not compel the conclusion that judicial elections are necessarily a bad thing. Indeed, it could be argued that justices would have every reason to work harder, not less, during the election season, lest the voters punish them for being laggards. That is, if job performance measured in terms of productivity becomes an issue in the campaign. There are some signs that this happening. Delay in decision-making in cases pending before the Supreme Court is one of the criticisms recently aired in the media, which have put the Chief and his associate justices on the defensive.

But the exigencies of partisan campaigns and elections can also be made a convenient culprit when the true reasons for institutional shortcomings - or those of individual office holders - lie elsewhere. Productivity figures have historically varied among the justices serving on the Texas Supreme Court - even in non-election years. This suggests that individual variations in role conception or work ethic may play a more significant role than institutional constraints. Not to mention that the justices of the fourteen courts of appeals routinely churn out vastly larger numbers of opinions per year - whether they are in campaign mode or not - thus demonstrating that there are no inherent limits for the Supreme Court to increase its opinion output by a multiple of its current rate.

A final caveat should also be added: It is expected that the Supremes will release a ream of opinions at the end of the current fiscal year, a practice for which there is solid precedent. The opinions expected for the end of August may yet alter the mid-year tally, and may thus also require reconsideration of any conclusions derived from preliminary numbers.

Tuesday, August 19, 2008

Dismantling Torts: Justice Stone's distress about Texas Supreme Court's Anti-plaintiff Jurisprudence


Rumblings of Discontent with Texas Supreme Court's Tort Deform in the Courts Below?

San Antonio Court of Appeals Justice Catherine M. Stone takes issue with Texas Supreme Court's paring down of the intentional infliction of emotional distress (IIED) tort that left educator with no legal remedy against students in MySpace defamation case. Draker v. Schreiber (Tex.App.- San Antonio, Aug. 13, 2008)

Acknowledging that controlling precedent from the Texas Supreme Court, which reduced IIED to a "gap-filler" tort, required dismissal of the aggrieved plaintiff's suit, Stone gave expression to her outrage in a concurring opinion:

I concur in the opinion and judgment of the court. I write separately, however, to express frustration with the current state of Texas law regarding the tort of intentional infliction of emotional distress.

The conduct of the students in this case is, in my opinion, outrageous. Simply stated, it is not acceptable conduct in our society. The school children of this state should know that appropriating the identity of a teacher or school administrator to create a fraudulent internet social profile is unacceptable, and that engaging in such conduct will have consequences. In this case, however, there is no civil legal consequence for the unacceptable conduct. The lack of a consequence is because, in Texas, a claim for intentional infliction of emotional distress exists only in theory.

Texas has recognized the independent tort of intentional infliction of emotional distress since the 1993 supreme court decision in Twyman v. Twyman, 855 S.W.2d 619, 621-22 (Tex. 1993) (adopting the elements of the Restatement (Second) of Torts § 46 (1965)).

Since that time, however, the opinions addressing the tort have enlarged the requirements to such an extent that it is virtually impossible for a litigant to successfully pursue a claim for intentional infliction of emotional distress.

The tort is a “gap-filler” tort, not meant to circumvent limitations placed on recovery under more established tort doctrines. Standard Fruit & Vegetable Co. v. Johnson, 985 S.W.2d 62, 68 (Tex. 1998). The tort is reserved for those rare instances where a defendant engages in extreme and outrageous egregious conduct and intentionally inflicts severe emotional distress. Id. If the gravamen of the plaintiff’s complaint is covered by a statute or another tort, then the claim for intentional infliction of emotional distress will fail, even if the plaintiff does not make a claim under another tort or cannot succeed in making a claim under another tort. Hoffmann-LaRoche Inc. v. Zeltwanger, 144 S.W.3d 438, 448 (Tex. 2004).

Even as onerous as these standards are, Texas jurists have expressed dissatisfaction with the tort. Creditwatch, Inc. v. Jackson, 157 S.W.3d 814, 815 (Tex. 2005) (noting that “[f]or the tenth time in little more than six years, we must reverse an intentional infliction of emotional distress claim for failing to meet the exacting requirements of that tort”); Hoffmann-LaRoche Inc., 144 S.W.3d at 450-51 (Hecht, J., concurring) (stating “fundamental position that the tort of intentional infliction of emotional distress should not exist at all”); Id. at 451 (O’Neill, J., concurring) (describing the “gap-filler” approach to the tort as “a cure worse than the disease”).

The internet capabilities of modern society present numerous opportunities for individuals to engage in extreme and outrageous conduct that can produce severe emotional distress. See Layshock v. Hermitage Sch. Dist., 496 F. Supp.2d 587, 590-91 (W.D. Pa. 2007) (discussing student’s creation of a false MySpace profile of his high school principal); David L. Hudson, Jr., Taming the Gossipmongers, 94 A.B.A. J. 19 (2008) (reviewing the use of the 1996 Communications Decency Act to protect Web publishers, such as, from liability for content created by third parties); John Seigenthaler, Op-Ed, A false Wikipedia ‘biography,’ USA Today, November 29, 2005, available at (detailing “Internet character assassination” of former government official with internet “biography” reference indicating official was suspected of involvement in the assassinations of President John Kennedy and Attorney General Robert Kennedy); Linda Deutsch, Woman pleads not guilty in Internet suicide case, USA Today, June 16, 2008, available at (discussing 13-year-old girl’s suicide after receiving more than a dozen cruel messages from a nonexistent teen boy via a false MySpace profile).

There appears to be little civil remedy for the injured targets of these internet communications. Intentional infliction of emotional distress would seem to be one option. But as it has developed, the tort is nearly impossible to establish. The citizens of Texas would be better served by a fair and workable framework in which to present their claims, or by an honest statement that there is, in fact, no remedy for their damages.

Catherine Stone, Justice

Court's Holding in Draker v. Schreiber: The tort of intentional infliction of emotional distress is not available to Draker to seek a remedy for the anguish she suffered because it is predicated on the same facts as her defamation claim and may not be pursued in the alternative of the defamation claim under controlling Texas Supreme Court precedent.

Disposition: Trial court's grant of summary judgment for the the students and their parents affirmed

Opinion by Justice Karen Angelini
Panel members: Justices Stone, Angelini and Hilbig
Appellate cause Number: 04-07-00692-CV
Full Case Style: Anna Draker v. Benjamin Schreiber, a minor, Lisa Schreiber; Ryan Todd, a minor, Lisa Todd, and Steve Todd
Trial Court: 38th District Court of Medina County
Trial Court Judge: Honorable Mickey R. Pennington
Attorneys on Appeal: Murphy S. Klasing, Regina Bacon, Criswell Ron A. Sprague

Monday, August 18, 2008

Does a single tortious act confer special jurisdiction?

Retamco Operating, Inc. v. Republic Drilling Co.,

No. 07-0599

Scheduled for oral argument before the Texas Supreme Court on Sep. 11, 2008


Republic Drilling Co. v. Retamco Operating, Inc.,
No. 04-06-00727-CV (Tex. App.- San Antonio, March 28, 2008, pet. granted)(Opinion by Justice Karen Angelini) (denial of out-of-state defendant's special appearance reversed)

FROM THE OPINION: This is an interlocutory appeal from an order denying the special appearance of Republic Drilling Corp. ("Republic"), a nonresident defendant. See Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(7) (Vernon Supp. 2005). We reverse the trial court's order."

* * *

"Here, the record reflects that Republic is a nonresident corporation, providing construction and drilling services outside the State of Texas; it does not have a place of business in Texas; it does not maintain an agent in Texas; it does not have an office in Texas; it does not advertise in Texas; it does not own personal property in Texas; it does not provide any services or work in Texas; it does not have a telephone number in Texas; it does no marketing or selling of any kind in Texas; it has not engaged in exploration, production, financing, consulting, or marketing of oil and gas properties in Texas; it does not have any partnerships or joint ventures with anybody in Texas; it has never performed operations in Texas; and, it has never done business in Texas.

The only "contact" Republic appears to have had with the State of Texas was the single transaction wherein Republic acquired non-operating oil and gas leases in Fayette County. (3) However, unlike Trigeant, the present transaction was executed not in Texas but in California and Colorado, in what appears to be a deliberate attempt to "purposefully direct" contact outside the forum state. Trigeant, 183 S.W.3d at 727. Further, Retamco does not direct this court to any other contacts that would evidence a showing that Republic's activities were "purposefully directed" to this forum, nor does our review of the record disclose any such contacts. Guardian Royal Exchange, 815 S.W.2d at 223. And while Retamco relies on Trigeant in support of its position that the single contact by Republic in receiving a fraudulent transfer of oil and gas leases is sufficient to confer specific jurisdiction in the present case, we are mindful that Michiana directs that the purposeful-availment standard is not met when the sole contact takes place outside the forum state. Michiana, 168 S.W.3d at 787."

Spectrum Healthcare Resources v. McDaniel set for argument on Sep 11

Med-Mal Litigation Procedure: Was there a binding agreement to extend deadline to file expert report?

No. 07-0787 Scheduled for oral argument on Sep 11, 2008

SPECTRUM HEALTHCARE RESOURCES, INC., AND MICHAEL SIMS v. JANICE MCDANIEL AND PATRICK MCDANIEL; from Bexar County; 4th district (04-06-00185-CV, 238 SW3d 788, 08-22-07)

OPINION BELOW: McDaniel v. Spectrum Healthcare Resources, Inc., No. 04-06-00185-CV, 238 S.W.3d 788 (Tex.App.- San Antonio, August 22, 2007, pet. granted)

From the Opinion by Justice Phylis J. Speedlin:

The controlling legal issue presented in this appeal is whether an Agreed Special Setting and Docket Control Order incorporated a written agreement extending the date for serving an expert report under section 74.351(a) of the Texas Civil Practice and Remedies Code. See Tex. Civ. Prac. & Rem. Code Ann. § 74.351(a) (Vernon Supp. 2006).

Because we hold that the docket control order includes within it an unambiguous agreement that extended the date, we reverse the trial court's order and remand the cause to the trial court for further proceedings.

* * *

We hold the parties' written agreement, as reflected in the docket control order as a whole, can be given a definite and certain meaning as a matter of law and includes within it an unambiguous agreement that extended the date for serving the section 74.351 expert report. Accordingly, we reverse the trial court's order granting the defendants' motion to dismiss, and remand the cause to the trial court for further proceedings."

Client's post-mortem legal malpractice suit against attorney revived

Texas Supreme Court to hear estate planning malpractice case for the second time.

Smith v. O'Donnell,
No. 07-0697 Set for oral argument on Sep. 10, 2008

PAUL H. SMITH, ET AL. v. THOMAS O'DONNELL, EXECUTOR OF THE ESTATE OF CORWIN DENNEY; from Bexar County; 4th district (04-04-00108-CV, 234 SW3d 135, 07-25-07) 2 petitions

OPINION BELOW: O'Donnell v. Smith, No. 04-04-00108-CV, 234 S.W.3d 135 (Tex.App.- San Antonio, July 25, 2007)(Opinion on remand by Justice Phylis J. Speedlin) (suing attorney for malpractice after client's death)


Thomas O'Donnell, as executor of the estate of Corwin D. Denney, appeals from a summary judgment granted in favor of the law firm and attorneys who provided legal advice to Denney during his lifetime in his capacity as executor of his wife's estate.

This is the second time we have been asked to decide this case.

On the first occasion, we affirmed the judgment of the trial court. We held, based on the summary judgment evidence, that O'Donnell could not recover on behalf of Denney's estate because no cause of action for legal malpractice accrued during Denney's lifetime; therefore, O'Donnell in his representative capacity lacked privity of contract with the attorneys and the law firm he was attempting to sue. See O'Donnell v. Smith, No. 04-04-00108-CV, 2004 WL 2877330 (Tex. App.--San Antonio Dec. 15, 2004), rev'd, 197 S.W.3d 394 (Tex. 2006) (per curiam).

On review, the Supreme Court vacated our judgment and remanded the case to this court for reconsideration in light of its recent holding in Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., 192 S.W.3d 780 (Tex. 2006), that a personal representative of an estate steps into the shoes of the decedent and may sue the decedent's lawyers for estate-planning legal malpractice. After considering the issues on remand in light of Belt, we affirm the granting of summary judgment in part, reverse the granting of summary judgment in part, and remand the cause to the trial court for further proceedings.")

Friday, August 15, 2008

Is a hospital bed a medical device?

Broken-bed case taken up by the Texas Supreme Court for the second time. Oral argument to be heard September 11, 2008 in Marks v. St. Luke's Episcopal Hospital.

Appellate judges and advocates still disagree whether suit over injuries attributable to patient's fall from defective hospital bed is properly characterized as a medical negligence or a premises defect claim.

No. 07-0783
IRVING W. MARKS v. ST. LUKE'S EPISCOPAL HOSPITAL; from Harris County; 1st district (01-04-00228-CV, 229 SW3d 396, 05-03-07)

OPINION BELOW: Marks v. St. Luke's Episcopal Hospital
No. 01-04-00228-CV, 229 S.W.3d 396 (Tex.App.- Houston [1st Dist.] May 3, 2007)(Nuchia)(opinion on remand)(HCLC, standard of care, nature of claim, expert report)
AFFIRM TC JUDGMENT: Opinion by Justice Nuchia
Before Justices Nuchia, Jennings and Alcala
Full case style: Irving W. Marks v. St. Luke's Episcopal Hospital
Appeal from 215th District Court of Harris County (Judge Levi J. Benton)


Appellant, Irving W. Marks, appeals from a final order dismissing his claims against appellee, St. Luke's Episcopal Hospital ("St. Luke's"), for failure to file expert reports as required by statute for health care liability claims. In our original opinion, we held that appellant's underlying complaint in his original petition related to premises liability, not medical liability, and that appellant's complaint was governed by an ordinary standard of care. We reversed the trial court's order dismissing appellant's claims and remanded the case to the trial court for further proceedings. (1)

Subsequent to our opinion, the Texas Supreme Court concluded that a patient's claims that a nursing home's negligence in failing to provide adequate supervision and nursing services proximately caused her injuries from a sexual assault by another patient could be characterized as a departure from accepted standards of safety and were therefore governed by the Medical Liability Insurance Improvement Act (the MLIIA). (2) See Diversicare General Partner, Inc. v. Rubio, 185 S.W.3d 842 (Tex. 2005). On St. Luke's petition for review of our opinion, the supreme court vacated our judgment and remanded the case for further consideration in light of that Court's decision in Diversicare. (3)

On remand, we must first consider whether, in light of Diversicare, appellant's complaint is governed by the MLIIA. Because we conclude that appellant's original petition asserted a departure from accepted safety standards and is therefore a health care liability claim, we must also consider whether the trial court abused its discretion in denying appellant's motion for a grace period in which to file his experts' reports to support his claim. We hold that the trial court did not abuse its discretion and affirm the trial court's judgment.
* * *
Because we conclude that all the complaints in appellant's original petition relate to departures from accepted standards of medical care, health care, or safety, we further conclude that these claims are governed by the MLIIA.

* * *
St. Luke's filed its motion to dismiss on January 23, 2004. The trial court conducted a hearing on that motion on February 3, 2004 and conducted an additional hearing on February 6 at appellant's request. Appellant filed his motion for a grace period on February 5 and presented it to the trial court on February 6. Appellant's motion was untimely because it was not filed before any hearing on St. Luke's motion, and the trial court was not required to grant appellant a 30-day extension to file his experts' reports. Therefore, the trial court did not abuse its discretion in denying appellant's motion. See Strom v. Mem'l Hermann Hosp. Sys., 110 S.W.3d 216, 226 (Tex. App.--Houston [1st Dist.] 2003, pet. denied) (holding that denial of untimely request was not abuse of discretion); Jackson v. Reardon, 14 S.W.3d 816, 819 (Tex. App.--Houston [1st Dist.] 2000, no pet.) (same).

We overrule appellant's second issue.

Justice Jennings wrote separately in Marks v. St. Luke's

Here, Marks is actually complaining of the hospital bed's footboard that gave way under his weight. In this regard, he is not making a claim for "treatment, lack of treatment, or other claimed departure from accepted standards of medical care or health care or safety." Unlike the claims made by Rubio in Diversicare, Marks's claim about the hospital bed implicates negligent maintenance, not health care. He is not fracturing or recasting a statutorily defined health care liability claim into a premises liability claim. Like an "unlocked window" or a "rickety staircase," the hospital bed in this case constituted "a dangerous condition," and Marks's premises liability claim is in fact separate from St. Luke's provision of health care. As such, Marks's allegations reveal a circumstance that gives rise to a premises liability claim in a healthcare setting that may not be properly classified as a health care liability claim. See id. at 854.
In concluding otherwise, the majority of this court errs. Accordingly, I would reverse the trial court's order in regard to Mark's premises liability claim. I would affirm the trial court's order only to the extent that it dismissed the actual health care liability claims of Marks.

Dynegy Midstream Services, LP vs. Apache Corp. to be argued Sep. 9, 2008

No. 07-0043
DYNEGY MIDSTREAM SERVICES, LIMITED PARTNERSHIP AND VERSADO GAS PROCESSORS, LLC v. APACHE CORPORATION; from Harris County; 14th district (14-05-00010-CV, 214 SW3d 554, 12-07-06) 2 petitions

This cause has been set for oral argument at 9:00 a.m., September 9, 2008. Time allotted to argue: 20/20 minutes

Opinion below: Apache Corp. v. Dynegy , 214 S.W.3d 554 (Tex.App.- Houston [14th Dist.] Dec. 7, 2006)(Anderson) (gas contract, breach of contract, unfair trade practices, UDJA, attorney fees)
Opinion by Justice Anderson
Panel members: Before Chief Justice Hedges, Judge Murphy, Justice Anderson
Cause number in the court of appeals and link to docket: 14-05-00010-CV
Full case style in the Houston court of appeals: Apache Corporation v. Dynegy Midstream Services Limited Partnership and Versado Gas Processors, LLC
Appeal from 234th District Court of Harris County
Trial Court Judge: Bruce D. Oakley

Suing the Governmental Unit or the Government Employee: Franka MD v. Velasquez set for oral argument


Can the defendants have it both ways? Argue that the employees be dismissed because the proper defendant is the entity (here UT Health Science Center), and have suit against the entity dismissed because the entity partakes of the state's sovereign immunity?

04-06-00190-CV, 216 SW3d 409, 09-06-06)

This cause has been set for oral argument at 9:00 a.m., September 10, 2008. Time allotted to argue: 20/20 minutes

Opinion with dissent below:
Franka v. Velasquez (Tex.App.- San Antonio, Sep. 6, 2006, pet. granted) (med-mal suit against governmental unit or employee, employee's motion to substitute the entity and motion to dismiss)

Courts Below Denied Employees' Motion to Dismiss:

John Christopher Franka, M.D. and Nagakrishna Reddy, M.D. appeal the trial court's orders denying their motion for summary judgment of substitution or dismissal. Franka and Reddy contend that the trial court erred in denying their motion because they were entitled to be dismissed from the underlying cause pursuant to section 101.106(f) of the Texas Civil Practice and Remedies Code.

Because we hold that Franka and Reddy failed to establish that the underlying lawsuit could have been brought against the University of Texas Health Science Center, we affirm the trial court's orders.

The statutory provision at issue:

If a suit is filed against an employee of a governmental unit based on conduct within the general scope of that employee's employment and if it could have been brought under this chapter against the governmental unit, the suit is considered to be against the employee in the employee's official capacity only.

On the employee's motion, the suit against the employee shall be dismissed unless the plaintiff files amended pleadings dismissing the employee and naming the governmental unit as defendant on or before the 30th day after the date the motion is filed.
Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (Vernon 2005).

The Court of Appeals would not leave the plaintiff without a remedy. Given its track record in judicial tort reform generally, and its rulings favoring governmental defendants in the name of immunity specifically, the Texas Supreme Court may disagree.

Franka and Reddy appear to be suggesting that the raising of a fact issue as to whether the suit "could have been brought under this chapter against the governmental unit" should be sufficient to enable a trial court to dismiss employees under section 101.106(f). Such a suggestion is untenable in view of its potential result. If the employees were dismissed and immunity was ultimately held not to have been waived, the plaintiffs would be left without a remedy. Just as a plea to the jurisdiction cannot be granted, thereby resulting in the dismissal of a lawsuit, when a fact issue exists, see Tex. Dept. of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 227-28 (Tex. 2004), a trial court also is not permitted to dismiss employees from a lawsuit under section 101.106(f) if a fact issue exists with regard to whether the governmental unit's immunity is waived. When such a fact issue exists, the employees have failed to establish that the suit "could have been under this chapter against the governmental unit." Tex. Civ. Prac. & Rem. Code Ann. § 101.106(f) (Vernon 2005).
The trial court's orders are affirmed.

DJA | City of Pasadena v. Smith set for oral argument

No. 06-0948
CITY OF PASADENA, TEXAS v. RICHARD SMITH; from Harris County; 1st district (01-05-01157-CV, ___ SW3d ___, 09-14-06)

Set to be argued orally September 10, 2008 at 9:00 a.m.

Opinion below: City of Pasadena v. Smith, No. 01-05-01157-CV (Tex.App.- Houston [1st Dist.] Sep. 14, 2006)(Jennings) (governmental entities law, public employment law, city, police, termination, suspension, availability of declaratory relief under the Uniform Declaratory Judgments Act (UDJA aka DJA), jurisdictional issue)


From the Opinion by Justice Terry Jennings

Section 143.057(j) expressly limits judicial review of a hearing examiner’s award to situations in which the hearing examiner “was without jurisdiction or exceeded its jurisdiction [or its] order was procured by fraud, collusion, or other unlawful means.” Tex. Loc. Gov’t Code Ann. § 143.057(j).

Here, the City is not seeking an interpretation of a statute and a determination of its rights under that statute as contemplated under the DJA. Rather, it is attempting to appeal a hearing examiner’s award based on a misapplication of law. This it cannot do. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849, 855 (Tex. 2002) (“The DJA does not extend a trial court’s jurisdiction, and a litigant’s request for declaratory relief does not confer jurisdiction on a court or change a suit’s underlying nature.”).

Accordingly, we hold that the district court did not have jurisdiction to hear the City’s appeal under the DJA.” [Declaratory Judgments Act ]

Full case style in the Houston Court of Appeals: City of Pasadena, Texas v. Richard A. Smith
Appeal from 113th District Court of Harris County (Judge Patricia Hancock)

Snailpace Justice: Texas Supreme Court sets three year old interlocutory appeal in med-mal case for oral argument

That's noteworthy, for interlocutory appeals are supposed to be accelerated appeals. Appellants are required to file the notice of appeal not within 30 days of the order causing offense, but ten days sooner.

No. 05-0801
S. MURTHY BADIGA, M.D. v. MARICRUZ LOPEZ; from Hidalgo County; 13th district (13-04-00452-CV, ___ SW3d ___, 07-07-05)

Set for oral argument on September 9, 2008 at 9:00 a.m.

Opinion below: Badiga v. Lopez (Tex.App.- Corpus Christi, July 7, 2005, pet. filed)("This is an interlocutory appeal by appellant, S. Murthy Badiga, M.D., asserting that the trial court erred by failing to dismiss a medical malpractice suit after an expert report was untimely filed by appellee, Maricruz Lopez, in violation of Section 74.351 of the Texas Civil Practice and Remedies Code. We dismiss this appeal for want of jurisdiction.")

2008-08-15 Denials of Petitions for Review


SHELL OIL COMPANY v. E.I. DU PONT DE NEMOURS AND COMPANY; from Harris County; 1st district (01-07-00118-CV, ___ SW3d ___, 11-15-07, pet. denied Aug 2008)
Opinion below: E. I. du Pont v. Shell Oil Co. (Tex.App.- Houston [1st Dist.] Nov. 15, 2007)(Jennings)(breach of indemnification agreement, defense costs) Opinion by Justice Terry Jennings ("We reverse the judgment of the trial court in favor of Shell. We render judgment in favor of Du Pont in the amount of $458,212.60 in defense costs and $40,000 in settlement costs, for a total of $498,212.60 in allocated defense and settlement costs. We further render judgment in favor of Du Pont in the amount of $242,620.90 for fees and costs expended in prosecuting its indemnity claim against Shell. We further render judgment in favor of Du Pont in the amount of $25,000 in fees and costs incurred in bringing this appeal. Finally, we render judgment in favor of Du Pont in the amount of $15,000 in fees and costs should Shell unsuccessfully appeal this matter to the Texas Supreme Court.") Before Justices Sam Nuchia, Terry Jennings and Evelyn Keyes Appeal from 127th District Court of Harris County (Hon. Sharolyn Wood)

MICHAEL A. FRENCH AND WIFE, MISTI MICHELLE FRENCH v. BRIAN JAMES GILL AND GIUSEPPE V. RICCIO D/B/A TIGERS TRUCKING CO.; from Wood County; 6th district (06-07-00076-CV, 252 SW3d 748, 04-16-08, pet denied Aug 2008) (Opinion below: French v. Gill (limitations bars claim, no tolling))

ROBERT D. SMITH, CRAIG B. LYON, CARL WALCHSHAUSER, THE FRANKIE R. PUTNAM, SR. TRUST, FRANK PUTNAM, INDIVIDUALLY, THE CLEAR CREEK AIR ESTATES PROPERTY OWNERS ASSOCIATION, INC. AND ROBERT E. ADAMS v. BENJAMIN F. HUSTON, MARY E. HUSTON, BENJAMIN E. HUSTON, DIANA A. HUSTON, THOMAS WESSIE HUSTON AND CRISTY R. HUSTON; from Denton County; 2nd district (02-07-00117-CV, 251 SW3d 808, 03-20-08, pet. denied Aug 2008)(dispute over access to and fees associated with an airstrip, easement, declaratory judgment)

KENNETH J. MAGNUSON v. CITIBANK (SOUTH DAKOTA) N.A.; from Denton County; 2nd district (02-06-00465-CV, ___ SW3d ___, 02-14-08, pet. denied Aug 2008) (credit card suit, Rule 12 motion, failure to appear)

W.R. EDWARDS, JR. v. MID-CONTINENT OFFICE DISTRIBUTORS, L.P. AND INWOOD OFFICE FURNITURE, INC.; from Dallas County; 5th district (05-06-01421-CV, 252 SW3d 833, 04-25-08, pet. denied Aug 2008) (claim for money had and received)

OUTREACH HOUSING CORPORATION/DESOTO I, LTD. v. DALLAS INDEPENDENT SCHOOL DISTRICT; from Dallas County; 5th district (05-07-00288-CV, 251 SW3d 152, 03-25-08, pet. denied Aug 2008) (Justice Hecht not sitting) (property tax, denial of partial property tax exemption)

MICHAEL MCLANE v. SANDRA HELENE MCLANE; from Harris County; 1st district (01-06-00634-CV, ___ SW3d ___, 05-01-08, pet. denied Aug 2008)McLane v. McLane (Tex. App.- Houston [1st Dist.] May 1, 2008)(Opinion on motion for rehearing by Hanks) (child support modification, child support decrease, retroactive effect, intentional underemployment) Opinion affirming trial court's judgment by Justice George C. Hanks, Jr. Before Justices Tim Taft, George C. Hanks, Jr. and Laura Carter Higley Appeal from 309th District Court of Harris County Trial Court Judge: Hon. Frank B. Rynd


Petitions for Review denied by Texas Supreme Court January 2008

Petitions for Review denied by Tex. Sup. Ct. in February 2008

Petitions for Review denied by Tex. Sup. Ct. in March 2008

Petitions for Review denied by Tex. Sup. Ct. in April 2008

Petitions for Review denied by Tex. Sup. Ct. in May 2008

Petitions for Review denied by Tex. Sup. Ct. in June 2008

Petitions for Review denied by the Texas Supreme Court July 2008

Saturday, August 9, 2008

2008-08-08 Lull at Texas Supreme Court Lingers On

August 8, 2008. Texas High Court -- currently on summer intermission -- issues four routine PFR denials, and not much else:

[click case style to read opinion of the court of appeals]:

KIRK WAYNE MC BRIDE, SR. v. TEXAS DEPARTMENT OF CRIMINAL JUSTICE-CORRECTIONAL INSTITUTIONS DIVISION, ET AL.; from Bee County; 13th district (13-05-00391-CV & 13-05-00392-CV, ___ SW3d ___, 02-28-08, pet. denied Aug. 2008)(prisoner suit, DTPA consumer law)

CAROL SYLVIA SMITH v. PAMELA WEBB AND ANN HOSEK; from San Patricio County; 13th district (13-06-00523-CV, ___ SW3d ___, 04-30-08, pet. denied Aug. 2008) (easement by necessity)

JIMMIE CASIAS, AS REPRESENTATIVE OF THE ESTATE OF SANTIAGO G. CASIAS (DECEASED) AND RACHEL CASIAS, AS REPRESENTATIVE OF CASIAS OIL WELL SERVICE, INC. v. SOMERSET INDEPENDENT SCHOOL DISTRICT (SISD); from Bexar County; 4th district (04-07-00829-CV, ___ SW3d ___, 04-23-08, pet. denied Aug. 2008) (no waiver of governmental immunity, Tooke v. City of Mexia progeny)

08-0513 SOUTH PLAINS SWITCHING, LTD. CO. AND SOUTH PLAINS LAMESA RAILROAD, L.L.C. v. BNSF RAILWAY COMPANY, F/K/A THE BURLINGTON NORTHERN AND SANTA FE RAILWAY COMPANY; from Lubbock County; 7th district (07-06-00165-CV, ___ SW3d ___, 04-17-08, pet. denied Aug. 2008) (Justice O'Neill not sitting) (railway dispute)

2008-08-08 Petition for Review in TTCA Case Stemming from Collision with Emergency Vehicle Struck


Among the few orders issued August 8, 2008, the Court strikes Petition for Review in case brought under the Texas Tort Claims Act (TTCA) seeking damages for injuries sustained in collision with police car:

"The petition violates Texas Rules of Appellate Procedure 9.4(d) and (g) and is struck. Petitioner is ordered to redraw; the redrawn petition is due to be filed August 18, 2008."

from Tarrant County; 2nd district (02-07-00249-CV, ___ SW3d ___, 07-31-08) (officer found not reckless in operating emergency vehicle, jurisdictional dismissal)


One exception to the waiver of governmental immunity contained in section 101.055(2) provides that the TTCA "does not apply to a claim arising . . . from the action of an employee while responding to an emergency call or reacting to an emergency situation if the action is in compliance with the laws and ordinances applicable to emergency action." Tex. Civ. Prac. & Rem. Code Ann. ' 101.055(2) (Vernon 2005); Lipan ISD v. Bigler, 187 S.W.3d 747, 750 (Tex. App.- Fort Worth 2006, pet. denied); Smith, 126 S.W.3d at 545.

The laws regarding the operation of an emergency vehicle are located in the Texas Transportation Code. See Tex. Transp. Code Ann. '' 546.001-.006 (Vernon 1999 and Supp. 2007). Section 546.001 allows the operation of an emergency vehicle to proceed past a red light after slowing as necessary for safe operation when the operator is responding to an emergency call. Id. at ' 546.001(2). Section 546.005 provides that, although the driver of an emergency vehicle must drive "with appropriate regard for the safety of all persons," he is not relieved of "the consequences of reckless disregard for the safety of others." Id. at ' 546.005; see Smith, 126 S.W.3d at 545; see also Hale v. Pena, 991 S.W.2d 942, 948 (Tex. App.- Fort Worth 1999, no pet.). Interpreting the uncodified predecessor of section 546.005, the Texas Supreme Court held that this provision "imposes a duty to drive with due regard for others by avoiding negligent behavior, but it only imposes liability for reckless conduct." City of Amarillo v. Martin, 971 S.W.2d 426, 431 (Tex. 1998).

Thus, a governmental entity is liable for damages resulting from the emergency operation of an emergency vehicle only if the operator acted recklessly; that is, only if the operator "committed an act that the operator knew or should have known posed a high degree of risk of serious injury" but did not care about the result. Id. at 430.

Because under the TTCA, a governmental entity's immunity from suit is waived only to the extent the TTCA authorizes liability, a governmental entity is immune from suits resulting from the emergency operation of an emergency vehicle unless the operator acted recklessly. Tex. Civ. Prac. & Rem. Code Ann. ' 101.025; Smith, 126 S.W.3d at 545.
* * *
The evidence shows that Officer Warren was driving his police car in an emergency situation with the lights and sirens activated when he entered the intersection. At the intersection, Officer Warren slowed down and looked around. Then, seeing that traffic had stopped or yielded to him, he proceeded into the intersection without coming to a complete stop. Officer Warren did not see Robinson's truck until after he had entered the intersection; he then accelerated to try to clear the intersection and to avoid a collision with Robinson. Robinson, however, hit the rear passenger side of the police car driven by Officer Warren, and the police car hit Barnes's car.

Appellees did not present any evidence or plead any other facts, which when taken as true, raise a fact issue as to whether Officer Warren knew or should have known that entering the intersection posed a high degree of risk of serious injury, yet proceeded without caring about this high degree of risk. Therefore, we hold that appellant met its burden to establish as a matter of law that Officer Warren was not reckless and that appellant's immunity was not waived. We sustain appellant's sole issue.
* * *
Having sustained appellant's sole issue, we reverse the trial court's judgment denying appellant's plea to the jurisdiction and render judgment dismissing appellees' claims against appellant for lack of subject matter jurisdiction.

Monday, August 4, 2008

Texas Supreme Court Justice Dale Wainwright takes re-election campaign to YouTube


8/5/08 Update: It appears that someone other than the candidate is responsible for the uploading of the Cruz campaign speech to YouTube. Click here for more.

Following the example of Baltasar Cruz , unsuccessful Democratic would-be candidate for seat no. 7 on the Texas Supreme Court, Republican incumbent Dale Wainwright has opened up a campaign presence on YouTube.

See Justice Wainwright's Video Bio on YouTube
Also see Baltasar Cruz's primary campaign speech on YouTube

No word on whether Democratic challenger Sam Houston will soon follow suit. All seats on the nine-member court are currently occupied by Republicans. Three of them face Democratic opponents - and the electorate - this Fall.

Terms: Texas judicial campaigns and elections, re-election campaign, Texas Supreme Court races, Incumbent Republican justices vs. Democratic challengers in the 2008 general election contest, contested race for Texas Supreme Court Place 7

Friday, August 1, 2008

2008-08-01 Routine PFR Denials - No New Opinions

The Texas Supreme Court denied four petitions for review in today's weekly orders and issued no other decisions worthy of note. No new petitions were granted or set for oral argument.


07-1063 BAYLOR UNIVERSITY MEDICAL CENTER, EDMUND SANCHEZ, M.D., AND SRINATH CHINNAKOTLA, M.D. v. HAROLD BIGGS, INDIVIDUALLY AND AS EXECUTOR OF THE ESTATE OF CHERI JEAN WELLS BIGGS, DECEASED, BRANDON WELLS, AND CHER BIGGS; from Dallas County; 5th district (05-06-01104-CV, 237 SW3d 909, 11-09-07, pet. denied) (HCLC, Med-Mal, deficient expert report)(Court of Appeals remanded to trial court to determine whether extension should be granted to file proper report on finding that report was inadequate)

08-0138 ESTATE OF JOHN A. TEINERT DECEASED, LAURANCE KRIEGEL, DESCENDENT, HEIR TO THE ESTATE; from Coryell County; 10th district (10-07-00297-CV, 251 SW3d 66, 01-09-08, pet. denied) as redrafted; petitioner's motion for partial summary judgment denied (probate matter)(Court of Appeals ruled that the trial court had no jurisdiction to take any further action with regard to Teinert’s Estate, and dismissed appeal for want of jurisdiction)

08-0410 JESUS MENDOZA v. PEDRO S. MONTANO M.D., AND JUSTICE OF THE PEACE ISMAEL "MELO" OCHOA; from Hidalgo County; 13th district (13-07-00146-CV, ___ SW3d ___, 02-28-08, pet. denied)(trial court's judgment affirmed in pro se appeal; appellee did not even file brief)

08-0461 THOMAS LOUIS v. MOBIL CHEMICAL COMPANY, A DIVISION OF EXXON MOBIL OIL CORPORATION, JAMES BOWSER AND RANDALL ROY; from Jefferson County; 9th district (09-06-00568-CV, 254 SW3d 602, 05-01-08, pet. denied) (Justice O'Neill not sitting) (employment law)(summary judgment for defendant employer affirmed in suit in which former employee brought claims of infliction of emotional distress, defamation, and retaliation.)