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

MEAN LEAN OPINION-WRITING MACHINE?

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)
GUITAR HOLDING COMPANY, L.P. v. HUDSPETH COUNTY UNDERGROUND WATER CONSERVATION
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)
IN RE SIMON KIBERU AND HARRIS METHODIST H-E-B HOSPITAL; from Tarrant County; 2nd district
(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
report, doctor entitled to interlocutory appeal of order denying motion to dismiss)
MIKE BISMAR, M.D. v. DOROTHY A. MOREHEAD, VAUGHN R. MOREHEAD AND JAMES P.
MOREHEAD, III, INDIVIDUALLY AND AS HEIRS AT LAW OF GLORIA MOREHEAD, DECEASED; from
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
court.
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