Monday, June 30, 2008

Two PFRs Granted: Supremes to decide open records dispute and jurisdictional issue in whistleblower suit

On June 27, 2008 the Texas Supreme Court granted review in the following appeals involving governmental entities:


06‑1034

THE STATE OF TEXAS AND THE TEXAS DEPARTMENT OF TRANSPORTATION v. GEORGE LUECK; from Travis County; 3rd district (03‑05‑00510‑CV, 212 SW3d 630, 08‑16‑06)("It is undisputed that Lueck is a public employee and that he alleged a claim under the Whistleblower Act. Accordingly, Lueck’s pleadings affirmatively demonstrate the district court’s jurisdiction to hear the case. Miranda, 133 S.W.3d at 226. Therefore, the district court did not err by granting Lueck’s motion to dismiss the Department’s plea to the jurisdiction. We overrule the Department’s first and second issues."




07‑0931

CITY OF DALLAS v. GREG ABBOTT, ATTORNEY GENERAL OF TEXAS; from Travis County; 7th district (07‑06‑00161‑CV, ___ SW3d ___, 08‑13‑07) ("The City of Dallas (City) appeals from the trial court’s determination that documents the City sought to withhold from public disclosure under the Public Information Act (PIA) as confidential attorney-client communication are not excepted and, thus, must be disclosed. We affirm the trial court’s decision.") [Note: The PIA was previously known as the Texas Open Records Act.]



(Justice Willett not sitting)

See list of other cases in which the Supreme Court recently granted review

Sunday, June 29, 2008

Free Exercise of Exorcism Trumps Tort Damages for Mental Trauma

Texas Supreme Court (6 to 3) shields ministers from civil tort liability for acts performed on teenager to remedy demon possession - including assault and physical restraint - where injuries for which damages were sought and awarded by the jury were in the form of mental anguish rather than bodily injury. $300,000 judgment in favor of church member, who was 17 at the time of the exorcism, overturned.

Pleasant Glade Assembly of God v. Schubert,
No. 05-0916 (Tex. 2008) (Majority Opinion by Justice Medina) (constitutional law, church and state, first amendment freedom of religion protects church's and ministers' acts related to exorcism of demons made the basis of intentional tort claims by church member who sought and recovered damages for mental anguish and post-traumatic distress).

To avoid excessive entanglement with matters of religious doctrine, Texas Supreme Court grants ecclesiastical tort immunity to Church sued for infliction of emotional distress and mental anguish by young church member, reverses $300,000 awarded by jury, and dismisses the personal injury suit as non-justiciable by characterizing it as a purely religious matter which cannot be subjected to adjudication by the state.

Majority holds that various spiritually charged demon abatement activities [the term exorcism is not used] were too closely intertwined with religious belief to be actionable as torts where recovery was sought for mental anguish and suffering rather than bodily injury. Court notes that members of churches voluntarily submit themselves to the church's religious doctrines and rituals, including the risk of mental anguish arising from adherence and implementation of such precepts, including disciplinary actions by church authorities. The high court also rejects the argument that the church defendants were estopped from invoking First Amendment protection because they had not made that argument with respect to the intentional tort claims at issue in a prior mandamus proceeding. With no less than four opinions, including partial concurrences, and three dissents, the Court was highly fractured in this rather remarkable separation-of-church-and-state case.

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.

HOLDING: The Free Exercise Clause prohibits courts from deciding issues of religious doctrine. Here, the psychological effect of church belief in demons and the appropriateness of its belief in “laying hands” are at issue. Because providing a remedy for the very real, but religiously motivated emotional distress in this case would require us to take sides in what is essentially a religious controversy, we cannot resolve that dispute. Accordingly, we reverse the [Fort Worth] court of appeals’ judgment and dismiss the case.

Saturday, June 28, 2008

Judicial Tort Reform: UCC Breach-of-Implied-Warranty claim as a tort subject to comparative responsibility

Texas Supreme Court holds that a party who seeks damages for death or personal injury based on a breach of implied warranty cause of action under the Uniform Commercial Code seeks damages in tort and is accordingly subject to Chapter 33 of the Texas CPRC, the comparative responsibility statute. Wrongful death plaintiffs go home empty-handed even though corporate defendant who sold product that caused prisoner's death was found liable in part.

JCW Electronics, Inc. v. Garza, (Tex. 2008)
No. 05-1042 (Tex. June 27, 2008) (Opinion by Justice David Medina)
(product liability, UCC, breach of warranty claim treated as tort claim subject to tort reform limitations imposed by Texas state law)
JCW ELECTRONICS, INC. v. PEARL IRIZ GARZA, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF ROLANDO DOMINGO MONTEZ, DECEASED, AND BELINDA LEIGH CAMACHO, INDIVIDUALLY AND AS NEXT FRIEND OF ROLANDO KADRIC MONTEZ, A MINOR CHILD; from Cameron County; 13th district (13-02-00577-CV, 176 SW3d 618, 10-13-05) The Court reverses the court of appeals' judgment and renders judgment.
Justice David Medina delivered the opinion of the Court.
Chief Justice Jefferson delivered a concurring opinion, in which Justice O'Neill joined.

In this wrongful death case brought by the mother of a prison inmate found dead in his cell with a phone cord around his neck the Court overturns a jury damages award against the company that installed the phones and represented them as being safe for unsupervised use by inmates.

To reach that result, the majority had to hold that the breach of implied warranty claim under the UCC constitutes a tort claim covered by the comparative responsibility provisions of Chapter 33 of the Texas Civil Practice & Remedies Code. Plaintiffs take nothing because prison inmate was found 60% negligent in causing his own death.

Interestingly, in another case involving a different set of facts, the Court recently held (in an opinion by Chief Jefferson, who agrees with the holding in JCW v. Garza in a concurring opinion) that a breach of warranty claim was a contract claim entitling the successful plaintiff to attorney's fees available for breach of a contract. See Medical City Dallas, Ltd. v. Carlisle Corp., No. 06-0660 (Tex. Apr. 11, 2008) (Jefferson) ("Because Texas Civil Practice and Remedies Code section 38.001(8) permits an award of attorney’s fees for a suit based on a written or oral contract, and because we conclude that breach of an express warranty is such a claim, the court of appeals erred in reversing Medical City’s attorney’s fees award in connection with its successful claim for breach of an express warranty. Accordingly, we reverse in part the court of appeals' judgment and reinstate the trial court’s judgment.")

Links: Other 2008 Texas Supreme Court Opinions Texas Opinions Home Page

Friday, June 27, 2008

Void TRO against OAG set aside by mandamus

Texas Supreme Court Court vacates trial court orders against Office of Attorney General in Dallas child support collection dispute; says the orders were procedurally defective.

In re OAG,
No. 08-0165 (Tex. 2008) (per curiam)
(temporary restraining order TRO declared void and set aside by mandamus)
IN RE OFFICE OF THE ATTORNEY GENERAL; from Dallas County; 5th district (05-08-00208-CV, ___
SW3d ___, 02-28-08)
stay order issued February 29, 2008, 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.
Per Curiam Opinion [ pdf ]


Texas Rules of Civil Procedure 680 and 684 require a trial court issuing a temporary restraining order to: (1) state why the order was granted without notice if it is granted ex parte, Tex. R. Civ. P. 680; (2) state the reasons for the issuance of the order by defining the injury and describing why it is irreparable, id.; (3) state the date the order expires and set a hearing on a temporary injunction, id.; and (4) set a bond, Tex. R. Civ. P. 684.

Orders that fail to fulfill these requirements are void. Interfirst Bank San Felipe, N.A. v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986); Lancaster v. Lancaster, 291 S.W.2d 303, 308 (Tex. 1956).

The temporary restraining order and amended orders issued by the trial court violate these rules. The original and first amended orders were granted ex parte but fail to explain why they were granted without notice, see Tex. R. Civ. P. 680; they do not define the injury they were designed to prevent or explain why such injury would be irreparable, see id.; and they were issued without meeting the bond requirement, see Tex. R. Civ. P. 684.

The second amended order purports to carry forth the original temporary restraining order as a temporary injunction, but the trial court issued it without a hearing; thus, it is not properly considered a temporary injunction but, rather, a continuation of the temporary restraining order. See Tex. R. Civ. P. 680; Del Valle Indep. Sch. Dist. v. Lopez, 845 S.W.2d 808, 809 (Tex. 1992). This second amended order, although it does set a bond, again fails to explain the reason for granting the order without notice or to define the injury to be suffered. See Tex. R. Civ. P. 680, 684.

Because temporary restraining orders are not appealable, the Attorney General has no remedy by appeal. In re Tex. Natural Res. Conservation Commn, 85 S.W.3d 201, 205 (Tex. 2002); In re Newton, 146 S.W.3d 648, 652–53 (Tex. 2004). Furthermore, the Attorney General has presented evidence that Texas could lose federal funding if he is forced to comply with the orders pending the outcome of proceedings to amend the underlying child-support orders. See 42 U.S.C. § 602 (2000).

Given the unavailability of appeal and the gravity of interests at issue in this case, we accordingly—without hearing oral argument, pursuant to Texas Rule of Appellate Procedure 52.8(c)—conditionally grant relief and direct the court to withdraw all three of its temporary orders. We are confident that the trial court will comply, and the writ will issue only if the trial court fails to do so.

Links: Other
OAG child support enforcement cases | Family law decisions of the Texas Supreme Court |
Other
Mandamus Opinions of the Texas Supreme Court |

GRANDPARENT RIGHTS UNDER SCRUTINY: Visitation Order Set Aside by Supreme Court Mandamus


Texas High Court says natural mother was improperly denied opportunity to contest temporary visitation rights for paternal grandparents in an evidentiary hearing. Court grants mandamus relief to throw out interim SAPCR order, citing earlier cases affirming principle that the rights of natural parents trump those of nonparents unless grave circumstances rebut the presumption favoring parents.

In Re Chambless,
No. 07-0767 (Tex. 2008) (per curiam) (orig. proc.) (family law, grandparent visitation suit)(mandamus granted) (parental presumption, preference for natural parent as child's custodian)
IN RE STACY D. CHAMBLESS; from Tarrant County; 2nd district (02-07-00291-CV, ___ SW3d ___, 08-23-07) stay order issued October 24, 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.

“Possession of or access to a child by a grandparent is governed by the standards established by Chapter 153 [of the Texas Family Code].” Tex. Fam. Code § 102.004(c). A grandparent seeking court-ordered visitation must “overcome[] the presumption that a parent acts in the best interest of the . . . child by proving by a preponderance of the evidence that denial of possession of or access . . . would significantly impair the child’s physical health or emotional well-being.” Id. § 153.433(2).

A trial court abuses its discretion when it grants access to a grandparent who has not met this standard. In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (per curiam).

Stacy complains that the trial court abused its discretion in awarding the paternal grandparents temporary visitation without affording her an opportunity to be heard. She further argues this temporary visitation order violates her fundamental right as a parent. Parents enjoy a fundamental right to make decisions concerning “the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality opinion). This “natural right which exists between parents and their children is one of constitutional dimensions,” Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 622 (Tex. 2004) (quoting Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976)), and is “far more precious than any property right,” In the Interest of M.S., 115 S.W.3d 534, 547 (Tex. 2003) (quoting Santosky v. Kramer, 455 U.S. 745, 758-59 (1982)).

“So long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family.” In re Mays-Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (per curiam) (quoting Troxel, 530 U.S. at 68). The State “[cannot] infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a better decision could be made.” Derzapf, 219 S.W.3d at 333 (quoting Troxel, 530 U.S. at 68).Here, the paternal grandparents concede Stacy is a fit parent and acknowledge Stacy would likely talk to J.A.C. about his father. Stacy also argues that if given the opportunity, she would present evidence that denying the grandparents visitation is in her child’s best interest. A parent must be given a meaningful opportunity to be heard before a trial court awards temporary grandparental visitation. Cf. In the Interest of J.W.T., 872 S.W.2d 189, 198 (Tex. 1994) (Hecht, J., concurring) (noting “that in a free society the State cannot deny a [parent] all right to his child without due process”); see also Stanley v. Illinois, 405 U.S. 645, 651 (1972) (finding that a parent’s right to “the companionship, care, custody, and management of his or her children” is an important constitutional interest that “undeniably warrants deference and, absent a powerful countervailing interest, protection”). Thus, the trial court abused its discretion in awarding the paternal grandparents temporary visitation with J.A.C. without affording Stacy a meaningful opportunity to be heard.

Without hearing oral argument, we conditionally grant mandamus relief and direct the trial court to vacate its August 14, 2007 temporary order granting grandparental visitation. Tex. R. App. P. 52.8(c). We are confident the trial court will promptly comply; our writ will issue only if it does not.

Links: Grandparent and nonparent child custody suits and intervention in Texas Other Family Law Rulings from the Texas Supreme Court

For grandparents rights cases in the Texas Courts of Appeals (most of which not reviewed by the state Supreme Court, see Texas Grandparents Rights TX (Case Law Blog of Grandparent custody, access, visitation)

Friday, June 20, 2008

2008-06-20 Texas Supreme Court Issues Mandamus in Two Cases


Forum Selection Clause enforced by Mandamus

In re Lyon Financial Services, Inc. (Tex. 2008)
No. 07-0486 (Tex. June 20, 2008)(per curiam) (orig. proc.) (mandamus, forum selection clause, motion to dismiss improperly denied)

Finding no evidence in the record to overcome the presumption that the forum-selection clause included in the documents executed by the parties is valid, the Texas Supreme Court, in a per curiam opinion, concludes that the trial court abused its discretion in denying Lyon’s motion to dismiss. The Court grants the petition for writ of mandamus and orders the trial court to vacate its order denying Lyon’s motion to dismiss MNI’s suit. As is the custom, the writ is issued conditionally, pending compliance by the lower court.

IN RE LYON FINANCIAL SERVICES, INC.; from Hidalgo County; 13th district (13-07-00269-CV, ___ SW3d ___, 05-31-07) Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion

No Waiver of Right to Enforce Arbitration Agreement Here

In Re Fleetwood Homes of Texas, LP (Tex. 2008)
No. 06-0943 (Tex. June 20, 2008)(per curiam) (original proceeding) (motion to compel arbitration, no waiver found, mandamus granted)

Finding that Gulf has failed to show that Fleetwood waived its contractual right to arbitrate, the Texas Supreme Court conditionally grants Fleetwood’s petition for writ of mandamus in a per curiam opinion and orders the trial court to send the parties to arbitration.

IN RE FLEETWOOD HOMES OF TEXAS, L.P. AND FLEETWOOD ENTERPRISES, INC.; from Walker County; 10th district (10-06-00312-CV, ___ SW3d ___, 10-25-06) Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.

Wednesday, June 18, 2008

Damon Hollimon Case Update: Abatement order lifted in wrongful prison death suit

Texas Supreme Court reinstates appeal

Thomas v. TDCJ-ID (Tex.App. - Houston [1st Dist.] April 19, 2007) (civil suit brought by survivors and estate of prison inmate killed by guards who broke prisoner's neck dismissed on immunity grounds)

Orders Pronounced June 16, 2008

MISCELLANEOUS
THE FOLLOWING CASE IS REINSTATED:
07‑0457
LINDA THOMAS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DAMON HOLLIMON, DECEASED AND ASHLEY DOMINQUE HOLLIMON, INDIVIDUALLY v. INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE AND GLENDA PIERSON; from Walker County; 1st district (01‑04‑01084‑CV, ___ SW3d ___, 04‑19‑07)
abatement order issued March 5, 2008, liftedmotion to amend petition for review granted petition reinstated as amended

Friday, June 13, 2008

Petition for Review (PFR) Granted (Tex.App., pet. granted)

June 13, 2008 - Today the Texas Supreme Court agreed to hear

the following appeals in civil cases on the merits:

ORDERS ON CASES GRANTED

THE FOLLOWING PETITION FOR REVIEW IS GRANTED:

07‑0541

TXI TRANSPORTATION COMPANY, ET AL. v. RANDY HUGHES, ET AL.; from Wise County; 2nd district (02‑04‑00242‑CV, 224 SW3d 870, 05‑24‑07)
as amended


[Note: The date and time for oral argument are yet to be determined.]

THE FOLLOWING PETITION FOR WRIT OF MANDAMUS IS SET FOR ORAL ARGUMENT:

07‑0322

IN RE JAMES ALLEN HALL; from Bexar County; 4th district (04‑07‑00050‑CV, ___ SW3d ___, 02‑14‑07)


[Note: The date and time for oral argument are yet to be determined.]

Petitions Denied (Tex. App., pet .denied)

June 13, 2008 - Texas Supreme Court Orders
Petitions for Review Denied with today's orders

Today the Texas high court denied the following appeals in civil cases brought by petition for review, thus letting stand the decisions of the intermediate court of appeals that decided the appeal in the first instance:


07‑0265

MCKENNA MEMORIAL HOSPITAL, INC. AND ROBERT DONOVAN BUTTER, D.O. v. SANDRA QUINNEY; from Comal County; 3rd district (03‑06‑00119‑CV, ___ SW3d ___, 11‑10‑06)


08‑0069

BAYLOR UNIVERSITY MEDICAL CENTER, AND SARA THOMAS, R.N. v. DIANNA ROSA; from Dallas County; 5th district (05‑07‑00639‑CV, 240 SW3d 565, 12‑07‑07)


08‑0139

MARYLAND CASUALTY COMPANY, NATIONAL STANDARD INSURANCE COMPANY, AND MARYLAND LLOYDS v. SOUTH TEXAS MEDICAL CLINICS, P.A.; from Wharton County; 13th district (13‑06‑00089‑CV, ___ SW3d ___, 01‑10‑08)


08‑0261

STUART SPITZER, M.D. v. MADELON BERRY, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE/ADMINISTRATOR/EXECUTOR OF THE ESTATE OF TOMMY BERRY; from Henderson County; 12th district (12‑07‑00276‑CV, 247 SW3d 747, 02‑22‑08)
respondents' motion to dismiss for want of jurisdiction denied


08‑0296

MIRNA ACOSTA, INDIVIDUALLY AND AS NEXT FRIEND, NATURAL PARENT, AND LEGAL GUARDIAN OF DENIS ACOSTA, A MINOR v. MEMORIAL HERMANN HOSPITAL SYSTEM, MEMORIAL HERMANN HOSPITAL SYSTEM D/B/A MEMORIAL HERMANN SOUTHWEST HOSPITAL AND GREATER HOUSTON ANESTHESIOLOGY, P.A.; from Harris County; 14th district (14‑07‑00001‑CV, ___ SW3d ___, 01‑22‑08)


See other Petitions for Review (PFR) denied by the Texas Supreme Court

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]

Wednesday, June 11, 2008

Prison neck-breaking case processed at less than breakneck speed

Texas Supreme Court grants another extension in appeal from lawsuit stemming from killing of mentally disturbed inmate by prison guards while a prison nurse stood by and did nothing. Justice Sam Nuchia, a former police chief, who wrote the majority opinion dismissing the suit against the governmental defendants, has since been denied the chance for reelection in the Republican primary and will step down at the end of the year. Justice Keyes wrote a vigorous dissent. The controversial case remains on hold in the Supreme Court, to wit:

Orders Pronounced June 11, 2008

ORDERS ON PETITIONS FOR REVIEW
THE ABATEMENT ORDER IS EXTENDED IN THE FOLLOWING PETITION FOR REVIEW:
07‑0457 LINDA THOMAS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF DAMON HOLLIMON, DECEASED AND ASHLEY DOMINQUE HOLLIMON, INDIVIDUALLY v. INSTITUTIONAL DIVISION OF THE TEXAS DEPARTMENT OF CRIMINAL JUSTICE AND GLENDA PIERSON; from Walker County; 1st district (01‑04‑01084‑CV, ___ SW3d ___, 04‑19‑07)
[Note: The abatement order issued March 5, 2008 is extended to June 16, 2008, by which time the parties must file either a status report or a motion to dismiss.]


Link to Case in the Houston Court of Appeals below:

TDCJ v. Thomas No. 01-04-01084 (Tex.App.- Houston [1st Dist.] Apr. 19, 2007, pet. filed, briefing requested)(Nuchia) (Tort Claims Act, plea to the jurisdiction, suit against government entity, public officials/employees)
REVERSE TC JUDGMENT AND RENDER JUDGMENT:
Opinion by Justice Sam Nuchia
Before Justices Nuchia, Keyes and Hanks
Texas Department of Criminal Justice and Glenda Pierson v. Linda Thomas as Personal Representative for the Estate of Damon Hollimon, Deceased, and Ashley Dominique HollimonAppeal from 278th District Court of Walker County

Justice Evelyn Keyes dissented in TDCJ v. Thomas

DISSENTING OPINION

This is a case brought by the estate and survivors of a young, strong, healthy, but mentally disturbed prison inmate, Damon Hollimon. When Hollimon, a paranoid schizophrenic, became agitated and violent, a five-man team of correctional officers of the Texas Department of Criminal Justice (TDCJ) assigned to transfer him to a psychiatric unit subdued him in his cell by repeatedly spraying him with O.C. pepper spray and, when that proved insufficient, throwing him face down on the floor, where four security personnel suited in protective gear secured his hands and feet, while another member of the team knelt on his neck until it broke. Hollimon's heart stopped, he quit breathing, and his eyes dilated and fixed.

The nurse assigned to approve the use of chemical restraint and to be on hand to provide medical assistance during the forced move, Glenda Pierson (Pierson), did nothing other than approve the use of the O.C. pepper spray, don a gas mask, record the events, and, after Hollimon was removed from his cell, take Hollimon's vital signs and discover that there were none. Pierson then continued to stand by and do nothing, other than to order that Hollimon be taken to the infirmary, for seven minutes while prison employees transported Hollimon, including a five minute delay to fetch a key to unlock an unattended locked wing picket gate between the cell block and the prison medical department. Pierson testified that she knew Hollimon needed cardiopulmonary resuscitation (CPR) as soon as he was taken out of his cell, but she did not give him mouth-to-mouth resuscitation because she would have had to remove her gas mask and the pepper spray would have disabled her. She subsequently did remove her mask, but she still did not attempt to give Hollimon CPR. CPR was attempted by medical personnel when Hollimon was taken into the infirmary, but Hollimon did not respond and was pronounced dead.

The majority holds that Appellee's suit against Appellants, TDCJ and Pierson, must be dismissed because TDCJ had no notice of Linda Thomas's claim and Pierson proved as a matter of law that she was not "deliberately indifferent" to the risk to Hollimon from failure to receive CPR and is thus entitled to official immunity from liability for the harm he sustained from not receiving CPR in time to save his life.

In my view, the majority makes serious mistakes of law in deciding both issues. If its opinion is correct, the burden of proof of notice is so high and the standard of proof of official immunity so low that it would be surprising if a suit could be maintained against any Texas state agency or Texas state employee under the Texas Tort Claims Act, the Texas Wrongful Death and Survival statutes, or section 1983 of the United States Code ever again, making the applicable statutes otiose.

Therefore, I dissent.

I would affirm the trial court's denial of TDCJ's plea to the jurisdiction and Pierson's motion for summary judgment on her qualified immunity affirmative defense. [Read Entire Dissenting Opinion by Justice Keyes]

Friday, June 6, 2008

2008-06-06 Texas Supreme Court Decisions with Links to Opinions


Court issues two mandamus decisions involving sufficiency of expert reports in health care liability suits and one eminent domain ruling involving the University of Houston. Supreme Court also denies numerous petitions for review with today's orders.

FKM Partnership, Ltd. v. Bd. of Regents of Univ. of Houston System, No. 05-0661 (Tex. Jun 6, 2008) (Phil Johnson) (eminent domain, condemnation)
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.

In Re Roberts, No. 05-0362 (Tex. Jun 6, 2008)(per curiam) (med-mal, grant of 30-day extension to cure deficiencies in expert report was proper, mandamus granted against court of appeals which ruled otherwise)
IN RE SUSAN ROBERTS AND JOHN R. ROBERTS, JR., INDIVIDUALLY AND AS NEXT FRIENDS OF THEIR MINOR CHILDREN JAMIE ROBERTS, JOSHUA ROBERTS, AND HALEY ROBERTS; from Potter County; 7th district (07-04-00363-CV, ___ S.W.3d ___, 4-27-05) relators' motion for emergency relief deniedPursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.Per Curiam Opinion (Justice Johnson not sitting)

In re Methodist Healthcare System of San Antonio, Ltd, No. 05-0575 (Tex. Jun 6, 2008)(per curiam)(HCLC, sufficiency of expert report, in medical malpractice suit)(court below instructed to apply new mandamus standard)
IN RE METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., D/B/A METROPOLITAN METHODIST HOSPITAL; from Bexar County; 4th district (04-05-00305-CV, ___ S.W.3d ___, 05-25-05) stay order issued September 16, 2005, liftedmotion to consolidate dismissed as moot Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.
Per Curiam Opinion

Sunday, June 1, 2008

Family Reunification Week at the Texas Supreme Court

FLDS-YFZ kids to be released by CPS and returned to their Moms; Dad held in contempt without notice of charges returned to his kids. (In more mundane appellate litigation news from the capitol, Justice Medina writes opinion on district's authority to regulate extraction and use of ground-water).

Guitar Holding Co. LP vs. Hudspeth County Underground Water Conservation District, No. 06-0904 (Tex. May 30, 2008)
(Justice Medina) (water rights) (13 page opinion in pdf)
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 and 08-05-00115-CV, 209 S.W.3d 172, 08-31-06)
The Court reverses the court of appeals' judgment and renders judgment.
Justice David Medina authored the opinion of the Court.

Supreme Court grants habeas corpus relief in criminal child support contempt case on due process grounds

In Re Zandi, No. 07­0919 (Tex. May 30, 2008)(per curiam)
(child support contempt, habeas corpus granted, due process)
IN RE REZA ZANDI; from Denton County; 2nd district (02-07-00348-CV, ___ S.W.3d ___, 10-18-07) Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the petition for writ of habeas corpus is granted and relator is ordered discharged. Per Curiam

Opinions released May 29, 2008

Supreme Court agrees with Third Court of Appeals to undo CPS anti-polygamy "class-action" against FLDS parents and kids, at least with respect to emergency foster care resulting from the child snatching raid. High Court approves decision of the Austin court of appeals to return the children to their mothers, stating that trial court judge may impose other, less drastic restrictions - if warranted - while the case remains pending. Supreme Court, too, issues its opinion per curiam, but not unanimously.

In re TDFPS (CPS), No. 08-0391 (Tex. May 29, 2008)(per curiam)
(CPS case against FLDS sect, Texas Supreme Court family law decisions)
IN RE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES; from Schleicher County; 3rd district (03-08-00235-CV, ___ S.W.3d ___, 05-22-08) motion for emergency relief denied Per Curiam Opinion
Justice
O'Neill delivered an opinion concurring in part and dissenting in part, in which Justice Johnson and Justice Willett joined.

In re Texas DFPS (CPS), No. 08-0403 (Tex. May 29, 2008)(per curiam) (CPS mass custody case) (companion case)
IN RE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES; from Schleicher County; 3rd district (
03-08-00298-CV, ___ S.W.3d ___, 05-22-08)motion for emergency relief deniedmotion to exceed page limit granted
Per Curiam Opinion
Justice O'Neill, joined by Justice Johnson and Justice Willett, concurring in part and dissenting in part for the reasons explained in Justice O'Neill's separate opinion in No. 08-0391.

Prayer Heard - Dad's Body Ordered Released

Texas Supreme Court rediscovers its role in correcting a miscarriage of justice; grants habeas corpus on finding that father should not be jailed on criminal contempt for not paying child support for the kids while they were living with him - at least not without proper notice. And it's not even Father's Day yet. Gaudeamus igitur.

In Re Zandi, No. 07­0919 (Tex. May 30, 2008)(per curiam) (child support contempt, habeas corpus granted on due process grounds; father entitled to notice and opportunity to establish affirmative defense of offset and/or reimbursement)

“Texas courts have consistently held that alleged constructive contemnors are entitled to procedural due process protections before they may be held in contempt.” Ex parte Johnson, 654 S.W.2d 415, 420 (Tex. 1983). There is “no meaningful distinction between an individual’s rights which are at stake in a constructive criminal contempt hearing . . . and those at stake in an ordinary criminal trial where confinement is a possible penal sanction.” Id. at 421. “Due process of law requires that the constructive contemnor be given ‘full and complete notification’ and a reasonable opportunity to meet the charges by way of defense or explanation.” Ex parte Gordon, 584 S.W.2d 686, 688 (Tex. 1979).

A motion to revoke criminal probation “must be specific enough to give the accused notice of alleged violation of law contrary to conditions of probation.” Chacon v. State, 558 S.W.2d 874, 876 (Tex. Crim. App. 1977). Similarly, section 157.214 of the Family Code provides that a motion to revoke suspension of commitment for contempt for failure to pay child support must “alleg[e] specifically that certain conduct of the respondent constitutes a violation of the terms and conditions of community supervision.” In the present case, no motion was filed to revoke Zandi’s suspension of commitment.

* * *
The purpose of notice is to apprise the respondent of the allegations he faces and provide him time to prepare to respond. Because that notice was lacking in this case, the court’s order revoking suspension of commitment must be set aside. Accordingly, we grant the petition for habeas corpus, and without hearing oral argument, Tex. R. App. P. 52.8(c), order that Zandi and his bond are discharged.

IN RE REZA ZANDI; from Denton County; 2nd district (02-07-00348-CV, ___ S.W.3d ___, 10-18-07)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the petition for writ of habeas corpus is granted and relator is ordered discharged. Per Curiam Opinion

Links: Other Texas Child Support Contempt Cases Other Texas Family Law cases 2008 Texas Supreme Court Decisions with Links to Opinions