Davis v. Fisk Electric Co.(Tex 2008) Batson challenge should have been sustained, Supremes rule

PICKING AND ELIMINATING JURORS BASED ON RACE

Texas Supreme Court, in a majority opinion written by its first African-American chief justice, orders new trial in employment discrimination suit on finding that peremptory strikes in jury selection were based on (or at least correlated with) race.

Davis v. Fisk Electric Co.,
No. 06-0162 (Tex. Sep. 26, 2008)(Jefferson)(jury selection, failure to sustain Batson challenge to race-based juror strike was error, new trial ordered)

FROM THE OPINION BY WALLACE JEFFERSON, CHIEF JUSTICE:

Our rules generally permit each party in a civil action to exercise six peremptory strikes, which are challenges “made to a juror without assigning any reason therefor.” Tex. R. Civ. P. 232, 233. But peremptories exercised for an improper reason, like race or gender, are unconstitutional. In this case, the African American petitioner asserted that he was terminated based on his race.

The respondents used peremptory challenges at trial to exclude five of six African Americans from the venire but contend that their reasons for doing so had nothing to do with the potential jurors’ race. The stated reasons, however, when viewed in conjunction with the 83% removal rate and a comparative juror analysis, defy neutral explanation.

Because we conclude that at least two of the strikes were based on race, we reverse in part the court of appeals’ judgment and remand the case for a new trial.

DONALD DAVIS v. FISK ELECTRIC COMPANY, FISK TECHNOLOGIES & FISK MANAGEMENT, INC.; from Harris County; 14th district (14-04-00790-CV, 187 SW3d 570, 01-12-06)
The Court reverses in part the court of appeals' judgment and remands the case to the trial court . Chief Justice Jefferson delivered the opinion of the Court, joined by Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett.

Justice Brister wrote a concurring opinion, in which he faults the majority for not using the occasion to abolish peremptory challenges altogether, and concurs with the judgment only.

2008-09-26 Release of Opinions Resumes

Nearly four weeks into the new Fiscal Year, the Supreme Court issues its first batch of opinions: Two signed opinions (one by Scott Brister and one by Chief Jefferson with a concurrence by Brister) and five per curiams (two of those on motion for rehearing).

SIGNED OPINIONS

Chief Justice Jefferson writes majority opinion finding error in denying Batson challenge to race-based strikes of jurors.

Davis v. Fisk Electric Co.,
No. 06-0162 (Tex. Sep. 26, 2008) (Jefferson) (jury selection, denial of Batson challenge to race-based juror strike was error, new trial ordered)
DONALD DAVIS v. FISK ELECTRIC COMPANY, FISK TECHNOLOGIES & FISK MANAGEMENT, INC.; from Harris County; 14th district (14-04-00790-CV, 187 SW3d 570, 01-12-06). The Court reverses in part the court of appeals' judgment and remands the case to the trial court.Chief Justice Jefferson delivered the opinion of the Court, joined by Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett.
Justice Brister delivered a concurring opinion, in which Justice Medina joined as to Part III.

Justice Scott A. Brister leads Court in reversing jury award in PI case holding that evidence of corporate defendant's deep pockets should have been withheld from the jury.

Reliance Steel & Aluminum Co. v. Sevcik,
No. 06-0422 (Tex. Sep. 26, 2008)(Brister) (evidence of defendant's wealth in personal injury truck accident case not admissible; jury verdict reversed)
RELIANCE STEEL & ALUMINUM CO. AND SAMUEL ALVARADO v. MICHAEL SEVCIK AND CATHY LOTH; from Waller County; 13th district (13-03-00407-CV, ___ SW3d ___, 03-09-06) respondents' motion to strike petitioners' brief on the merits dismissed as moot. The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Brister delivered the opinion of the Court.

UNSIGNED PER CURIAM OPINIONS

MAY INSURER'S STAFF ATTORNEYS PROVIDE DEFENSE FOR INSURED?

UPLC v. Nationwide Mutual Ins. Co.,
No. 05-0130 (Tex. Sep. 26, 2008)(per curiam opinion on motion for rehearing)(legality of insurance company's use of staff attorneys to defend the insured, captive counsel, unauthorized practice of law)
UNAUTHORIZED PRACTICE OF LAW COMMITTEE v. NATIONWIDE MUTUAL INSURANCE COMPANY AND SEAN P. MARTINEZ; from Bexar County; 4th district
(04-04-00184-CV, 155 SW3d 590, 12-08-04) Per Curiam Opinion

MED-MAL CASE REMANDED TO ALLOW PLAINTIFF TO SEEK EXTENSION TO CURE DEFICIENCY IN EXPERT REPORT

Martinez-Partido v. Methodist Specialty and Transplant Hospital,
No. 06-0611 (Tex. Sep. 26, 2008)(per curiam) (HCLC, Plaintiff entitled to remand for opportunity to fix expert report found deficient on appeal) MAURICIO MARTINEZ-PARTIDO v. METHODIST SPECIALTY AND TRANSPLANT HOSPITAL; METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., L.L.P. D/B/A METHODIST SPECIALTY AND TRANSPLANT HOSPITAL; JANE OR JOHN DOE(S), HOSPITAL EMPLOYEE(S); AND JANE OR JOHN DOE(S), HOSPITAL NURSE(S); from Bexar County; 4th district (04-05-00868-CV, ___ SW3d ___, 06-14-06)Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court vacates the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion

AWARD OF FUTURE MENTAL ANGUISH DAMAGES APPROVED IN ABUSE CASE

Adams v. YMCA of San Antonio,
No. 07-0221 (Tex. Sep. 26, 2008)(per curiam) (jury's award of future mental anguish damages in child sexual abuse case supported by the evidence)
JOHN A. ADAMS AND JANE A. ADAMS, INDIVIDUALLY, AND AS NEXT FRIENDS OF A.A., A MINOR v. YMCA OF SAN ANTONIO, D/B/A YMCA OF SAN ANTONIO AND HILL COUNTRY; from Bexar County; 4th district (04-04-00931-CV, 220 SW3d 1, 07-12-06) 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 remands the case to that court. Per Curiam Opinion

ATTORNEYS' FEE CONTRACTS: PAROL EVIDENCE RULE BARS TESTIMONY OF ALLEGED ORAL AGREEMENT TO CAP FEES NOT REDUCED TO WRITING

Sacks v. Haden,
No. 07-0472 (Tex. Sep. 26, 2008)(substituted per curiam opinion on motion for rehearing)(parol evidence rule precludes consideration of evidence of oral agreement to cap attorney fees where written letter agreement on fees did not mention cap)
DAVID J. SACKS, P.C. D/B/A SACKS & ASSOCIATES v. CHARLES MCINTYRE HADEN, JR., INDIVIDUALLY, AND CHARLES MCINTYRE HADEN, JR. & COMPANY D/B/A HADEN & COMPANY; from Harris County; 1st district (01-01-00200-CV, 222 SW3d 580, 03-08-07) motion for rehearing granted. The Court's opinion and judgment of July 11, 2008 are withdrawn and the opinion and judgment of this date are substituted.
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, renders judgment in part, and remands the case to the court of appeals. Per Curiam Opinion

EMINENT DOMAIN: TEXAS SUPREME COURT AGAIN FAVORS THE STATE IN DISPUTE OVER CONDEMNATION DAMAGES

State of Texas v. Dawmar Partners, Ltd., No. 07-0548 (Tex. Sep. 26, 2008)(per curiam) (condemnation appeal, State prevails)
THE STATE OF TEXAS v. DAWMAR PARTNERS, LTD., A TEXAS LIMITED PARTNERSHIP, AND HOWARD WAYNE GRUETZNER AND BEVERLY ANN GRUETZNER (A/K/A BEVERLY G. SHAW), CO-INDEPENDENT EXECUTORS OF THE ESTATE OF MARTHA LILLIAN ATTAWAY GRUETZNER (A/K/A MARTHA LILLIAN ATTAWAY GRUETSNER); from McLennan County; 10th district (10-06-00136-CV, ___ SW3d ___, 05-30-07) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion

Texas Supreme Court Lets Debt Collector Win With Deemed Admissions

All-Republican Supreme Court rules for the Plaintiff. It's not a tort case, of course.

Unifund CCR Partners v. Weaver (Tex. 2008)(per curiam)

Although the credit card debt claim may have been time-barred, and although the pro se consumer invoked the applicable statute of limitations, the Court says that he did not assert the limitations defense in the proper pleading and failed to establish that he served responses to requests for admission when plaintiff's counsel contested receipt in an affidavit and thus rebutted the presumption of receipt triggered by the defendant card holder's court-filed certificate of service. The debt collector then moved for summary judgment based on deemed admissions.

A little knowledge of the law may not be a dangerous thing, compared to no knowledge at all, but it may not be sufficient to successfully defend against legal claims against which there may actually exist a viable defense, -- at least not in a court that favors corporate interests.

The appeals court below had actually ruled in the consumer's favor and had reversed the trial court's summary judgment for the debt collector, only to be in turn reversed by the Texas Supreme Court.

Unifund CCR Partners v. Weaver, No. 07-0682 (Tex. Aug. 29, 2008)(per curiam)
(credit card debt suit, deemed admissions, statute of limitations defense not properly pleaded)
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.

2008-09-05 Texas Supreme Court begins new FY without fanfare

First Friday of new fiscal year turns out rather uneventful compared to the deadline-driven delivery of a flurry of opinions and other orders the week prior:

No new opinions. No new non-opinions (i.e., opinions announcing denial, expressly refusing to decide the issue presented, and implicitly reserving it for future deliberation). - Just a few routine orders.

To avoid cluttering up the blog, I am not reproducing them here. Click through to the web pages listing denied petitions and the encompassing the residual category of Other Texas Supreme Court Orders (i.e., orders other than denials of petitions for review, orders granting petitions, and orders setting granted cases for oral argument.)

No-Duty Court guts jury's award of damages to family of crime victim

JUDICIAL TORT REFORM: Trammell Crow v. Gutierrez (Tex. 2008)

Applying one of its favorite jurisprudential hatchets to kill awards of damages by Texas juries, the Texas Supreme Court here decides as a matter of law that the landowner owed the person killed on its premises no duty to provide adequate security to prevent the deadly attack.

No duty - no liability, regardless of the jury might have found based on the evidence presented.

The shooting was not foreseeable, the majority, in an opinion by Don R. Willett concludes, although 227 crimes had been reported over the course of the prior two years at the same location. Because most of these crimes were less severe and only a dozen or so involved robber, assault and/or guns, the land owner had no reason to anticipate that things might escalate. The shooting victim suffered the effects of a more serious crime than what was common for the area, the mall owner had no duty to provide security against that more serious risk, and therefore his survivors deserve having the jury verdict in their favor reversed.

Or so the Supremes' reasoning goes.

In reaching this result, the majority of the Court finds comfort in expert evidence in the case that showed that less crime occurred at the mall in question than in the city as a whole. The obvious fact that the entire population does not daily parade through the mall, much less reside there on a permanent basis - i.e., that the incidence of crime would have to be measured against the number of people at risk, rather than the city's population as a whole was merely acknowledged in passing.

Trammell Crow Central Texas, Ltd v. Gutierrez, No. 07-0091 (Tex. Aug. 29, 2008)(Willett) (premises liability, owner liability for crime on property, forseeability, no duty)
TRAMMELL CROW CENTRAL TEXAS, LTD. v. MARIA GUTIERREZ, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF LUIS GUTIERREZ; AND KAROL FERMAN AS NATURAL
PARENT AND AS NEXT FRIEND OF LUIS ANGEL GUTIERREZ; from Bexar County; 4th district
(04-05-00056-CV, 220 SW3d 33, 12-20-06)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Willett delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright, Justice
Medina, and Justice Green joined.
Chief Justice Jefferson delivered a concurring opinion, in which Justice Hecht, Justice Brister, and Justice
Johnson joined.

Supreme Court again favors the State in an eminent domain dispute

Award of attorney's fees in favor of landowner reversed in opinion by Justice Phil Johnson. Justice O'Neill, writing separately, would have remanded case to trial court to consider imposing sanctions on the TxDOT for improper conduct in the botched condemnation proceeding that cost landowner an arm and a leg in legal fees.

State of Texas v. Brown,
No. 05-0236 (Tex. Aug. 29, 2008)(Johnson) ("[W]e grant the State’s petition for review. Without hearing oral argument, we reverse the court of appeals’ judgment and render judgment that Brown take nothing on his claim for attorney’s fees and expenses.")

THE STATE OF TEXAS v. J. GRADY BROWN, JR.; from Denton County; 2nd district
(02-04-00035-CV, 158 SW3d 68, 01-27-05)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, and Justice Willett joined.

Justice O'Neill delivered an opinion concurring in part and dissenting in part:

I agree fully with the Court’s conclusion that Property Code sections 21.019 and 21.0195 do not authorize the award of all fees and expenses under these circumstances. I dissent only because I would remand the case, rather than render judgment, so that the trial court may consider imposing any sanctions available under the Texas Rules of Civil Procedure. See, e.g., Tex. R. Civ. P. 13 (authorizing sanctions when a pleading is groundless or not brought in good faith); Tex. R. Civ. P. 70 (permitting a trial court to require a party whose amended or supplemental pleading surprises and prejudices another party to pay the additional costs and expenses incurred by the surprised party as a result of the surprise); Tex. R. Civ. P. 215 (providing for sanctions when a party abuses or fails to comply with discovery proceedings and requests).

As the Court notes, we recently held that such sanctions against a condemning authority are available because Property Code section 21.018(b) stipulates that condemnation trials are to be conducted in the same manner as any other civil trial. PR Invs. & Specialty Retailers, Inc. v. Texas, 251 S.W.3d 472, 480 (Tex. 2008).

As we noted in PR Investments, appropriate sanctions under the Rules of Civil Procedure may not constitute the entirety of the fees and costs; for example, perhaps only the costs associated with the untimeliness of the amendment to the petition are available here. Because PR Investments was decided after the trial court’s decision, in the interests of justice and fairness, I would remand to permit the trial court to consider sanctions under the Rules of Civil Procedure in light of PR Investments.

NO MANDAMUS (for now): Supremes put case on hold for Judge Jim Jordan - Democratic would-be Chief Justice of the Texas Supreme Court

In this mandamus proceeding involving a dispute about whether a motion for new trial following a jury verdict was properly granted / ungranted in the trial court, a majority of the Texas Supreme Court decides to abate the case to let the new trial judge, who also happens to be Chief Justice Jefferson's opponent in the Nov. 2008 judicial elections, revisit the orders rendered by his predecessor(s) on the Dallas district court bench. Justice Phil Johnson, who also has a date with the voters coming up, wrote a separate opinion, advocating that the post-trial procedural conundrum presented by this case (and others) be addressed through the exercise of the Court's rulemaking power.

In re Baylor Medical Center at Garland,
No. 06-0491 (Tex. Aug. 29, 2008)(Brister)("[W]e overrule Porter v. Vick, and abate this case for Judge Jordan to reconsider whether to enter judgment on the jury verdict or to grant a new trial.")

IN RE BAYLOR MEDICAL CENTER AT GARLAND; from Dallas County; 5th district(05-05-01663-CV, ___ SW3d ___, 01-04-06) abatement order issued, stay order issued
The Court abates this cause pursuant to Texas Rule of Appellate Procedure 7.2. Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Green, Justice Medina, and Justice Willett joined.
Justice Johnson delivered a dissenting opinion. [excerpt follows below]

The Court is remanding for the third judge to consider whether a new trial is appropriate or whether judgment should be entered on the verdict. When a new trial has been granted and a new judge takes over the case for any reason, why would the party who prevailed during the first trial not move for judgment to be entered on the result of the trial under today’s decision? And this rule may also entail political consideration for judges who have granted new trials. Further, under the Court’s construct, a trial court theoretically has the power to grant more than one new trial and then pick the verdict or result the judge prefers. There needs to be some cutoff beyond which the parties and the trial court can proceed to the new trial without having the spectre of the prior verdict and judgment hanging over them. That can be, and in my view should be, done by rule.I would follow Porter and would not remand for the current judge to reconsider the order granting a new trial. I would hold that the trial court’s plenary power to vacate the order has expired and to remand would be useless. I would address the issues of whether Baylor is entitled to mandamus review, and if so, whether it is entitled to relief.

Chief Jefferson on proper way to go wet (or stay dry)

LEGALIZING BOOZE BY POPULAR VOTE

Texas Supreme Court, in opinion by Chief Justice Wallace Jefferson, offers guidance on how to turn dry area wet where boundaries of original, historical unit that voted to ban alcohol has changed and/or otherwise no longer exists as a distinct political entity.

Online opinion features scanned image of Dallas-area prohibition map (in color) and hyperlinks to cited handbook article on prohibition in Texas. HTML Opinion page has case style and cause number in the title tag, a practice finally adopted by the court's webmaster(s) that will facilitate identification through search engines. Kudos!

In re Calla Davis, No. 07-0147 (Tex. Aug. 29, 2008)(Jefferson) (mandamus denial)(election law) (alcohol regulation by vote, procedure for local option referendum to turn dry area wet when boundaries of relevant area have changed)
IN RE CALLA DAVIS, MELVIN HURST III, AND ANN B. HEARN; 5th district(05-07-00198-CV, ___ SW3d ___, 02-22-07)motion to strike response to mandamus, as amended, deniedPursuant to Texas Rule of Appellate Procedure 52.8(a), the Court denies the petition for writ of mandamus.Chief Justice Jefferson delivered the opinion of the Court.

In the context of a local option election to change the status of a historical justice precinct, we conclude that the Commissioners Court must, upon request, delineate the boundaries of that historical precinct. After it has done so, qualified voters of that historical precinct may apply for local option election petitions. Tex. Elec. Code § 501.023(a). If the petitions are returned and certified, the Commissioner Court must then order a local option election for that historical precinct. Id. § 501.021.

Click here to read full opinion, view exhibit, and follow hyperlinks.

High Court answers another set of certified [insurance law] questions

TEXAS SUPREME COURT ANSWERS CERTIFIED QUESTIONS FROM FIFTH CIRCUIT REGARDING COVERAGE AND DUTY TO DEFEND

Don's Building Supply, Inc. v. Onebeacon Ins. Co.,
No. 07-0639 (Tex. Aug. 29, 2008)(Willett) (cert. questions)
(insurance coverage dispute, duty to defend)
DON'S BUILDING SUPPLY, INC. v. ONEBEACON INSURANCE COMPANY, AS ASSIGNEE OF POTOMAC INSURANCE COMPANY OF ILLINOISThe Court answers the questions certified by the United States Court of Appeals for the Fifth Circuit.
Justice Willett delivered the opinion of the Court.

The Fifth Circuit asks generally when property damage “occurs” under Texas law for purposes of an occurrence-based commercial general liability insurance policy, a question this Court has never answered. More specifically, is an insurer’s duty to defend triggered where damage is alleged to have occurred during the policy period but was inherently undiscoverable until after the policy expired? As to this policy, which focuses on when damage comes to pass, not when damage comes to light, we answer “yes”—the insurer’s duty is triggered under Texas law; the key date is when injury happens, not when someone happens upon it.

Ineffective assistance of counsel - May the claim be raised for the first time on appeal in a termination-of-parental-rights case?

Unfortunately, the Texas Supreme Court won't tell whether a complaint about lousy lawyering in a proceeding resulting in termination of the parent-child relationship may be made in the court of appeals, where right to appeal had been forfeited by counsel's failure to timely file statement of points in the trial court to satisfy statutory requirements for termination appeals.

SUPREMELY UNHELPFUL

For the second time this year, the Supremes have issued a (non) opinion declining review in a SAPCR case and going on the record with their express refusal to decide the merits of an issue of constitutional importance raised by the case:

In Interest of GB, No. 08-0380 (Tex. Aug. 29, 2008)(per curiam) (termination, ineffective counsel)
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

════════════════════════════════════════════════════

PER CURIAM OPINION

The petition for review is denied. In denying the petition, we neither approve nor disapprove the holding of the court of appeals regarding whether Texas Family Code section 263.405(i) prohibits an appellate court from considering an ineffective assistance of counsel claim that was raised for the first time on appeal.

OPINION DELIVERED: August 29, 2008

════════════════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE HOUSTON COURT OF APPEALS FOR THE FIRST DISTRICT:

Bernia v. Department of Family and Protective Services (Tex.App. - Houston [1st Dist.] 2008) (termination of parental rights, ineffective counsel) ("Because Bermea could not have prevailed on her legal and factual sufficiency arguments, we cannot say that the result of the proceeding would have been any different if she had had effective counsel. Therefore, Bermea did not suffer any harm from her counsel's deficient conduct.")

2008-08-29 Signed Majority, Dissenting, and Concurring Opinions

As expected, Texas Supreme Court Justices delivered volley of opinions just prior to the end of the Fiscal Year. Members of the Court found much to disagree on, as seen in a substantial number of dissents and concurrences.

In the oldest case disposed of, the Majority headed by Wainright second-guessed and reversed the jury in a wrongful death case only on loss-of-inheritance damages. Judicial moderation on the tort reform front - Texas-style. Justices Green and Hecht would have thrown out the jury's award of gross negligence damages too, opining that the hospital's negligence that caused the patient's death was merely ordinary.

Columbia Medical Center of Los Colinas v. Hogue, No. 04-0575 (Tex. Aug. 29, 2008)(Wainwright) (HCLC med-mal gross negligence damages, contributory negligence, trifurcation of trial)
COLUMBIA MEDICAL CENTER OF LAS COLINAS, INC. D/B/A LAS COLINAS MEDICAL CENTER v. ATHENA HOGUE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF ROBERT HOGUE, JR., DECEASED, CHRISTOPHER HOGUE, AND ROBERT HOGUE, III; from Dallas County; 5th district
(05-03-00279-CV, 132 SW3d 671, 04-13-04)
The Court affirms in part and reverses in part the court of appeals' judgment.
Justice Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Brister, Justice Medina, Justice Johnson, and Justice Willett joined, and in Parts II-A, II-C, and II-D of which Justice Hecht and Justice Green joined.
Justice Brister delivered a concurring opinion, in which Justice Medina joined.
Justice Green delivered an opinion concurring in part and dissenting in part, in which Justice Hecht joined.

In re Poly-America, LP, No. 04-1049 (Tex. Aug. 29, 2008)(O'Neill)
(arbitration in employment context, retaliatory discharge, mandamus granted)
IN RE POLY-AMERICA, L.P., IND. AND D/B/A POL-TEX INTERNATIONAL, AND POLY-AMERICA GP, L.L.C.; from Chambers County; 1st district
(01-03-01055-CV, 175 SW3d 315, 09-09-04)
The Court conditionally grants the petition for writ of mandamus.
Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Medina, Justice Green, and Justice Johnson joined.
Justice Brister delivered a dissenting opinion. (Justice Willett not sitting)

State of Texas v. Brown, No. 05-0236 (Tex. Aug. 29, 2008)(Johnson)
(condemnation, fees to landowner reversed))
THE STATE OF TEXAS v. J. GRADY BROWN, JR.; from Denton County; 2nd district
(02-04-00035-CV, 158 SW3d 68, 01-27-05)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment. Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, and Justice Willett joined.
Justice O'Neill delivered an opinion concurring in part and dissenting in part.

Coastal Oil & Gas Corp. v. Garza Energy Trust, No. 05-0466 (Tex. Aug. 29, 2008)(Hecht)
(oil and gas law, trespass, rule of capture)
COASTAL OIL & GAS CORPORATION AND COASTAL OIL & GAS USA, L.P. v. GARZA ENERGY TRUST ET AL.; from Hidalgo County; 13th district (13-02-00136-CV, 166 SW3d 301, 05-05-05)
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to the trial court. Justice Hecht delivered the opinion of the Court, in which Justice Brister, Justice Green, Judge Christopher, and Justice Pemberton joined, and in all but Part II-B of which Chief Justice Jefferson, Justice Medina, Justice Johnson, and Justice Willett joined.
Justice Willett delivered a concurring opinion.
Justice Johnson delivered an opinion concurring in part and dissenting in part, in which Chief Justice Jefferson joined, and in Part I of which Justice Medina joined.
(Judge Tracy Christopher and Justice Robert Pemberton sitting by appointment pursuant to section 22.005 of the Texas Government Code) (Justice O'Neill and Justice Wainwright not sitting)

Kerlin v. Sauceda, No. 05-0653 (Tex. Aug. 29, 2008)(O'Neill)(oil and gas royalties, claims barred by limitations)GILBERT KERLIN, INDIVIDUALLY, GILBERT KERLIN, TRUSTEE, WINDWARD OIL & GAS CORP., AND PI CORP. v. CONCEPCION SAUCEDA, ET AL.; from Cameron County; 13th district (13-01-00062-CV, 164 SW3d 892, 06-09-05)
petitioners' motion to consolidate dismissed as moot
The Court reverses the court of appeals' judgment and renders judgment.
Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Medina, Justice Green, and Justice Johnson joined.
Justice Brister delivered a concurring opinion, in which Justice Hecht, Justice Medina, and Justice Willett joined.

In Re McAllen Medical Center , No. 05-0892 (Tex. Aug 29, 2008)(Corrected Opinion by Brister) IN RE MCALLEN MEDICAL CENTER, INC., D/B/A MCALLEN MEDICAL CENTER AND UNIVERSAL HEALTH SERVICES, INC.; from Hidalgo County; 13th district
(13-05-00441-CV, ___ SW3d ___, 10-05-05)
real parties in interest's motion for oral argument denied
corrected opinion issued

Forest Oil Corp v. McAllen, No. 06-0178 (Tex. Aug. 29, 2008)(Willett)(arbitration, commercial contact, fraudulent inducement claim barred by contractual waiver of reliance languageFOREST OIL CORPORATION AND DANIEL B. WORDEN v. JAMES ARGYLE MCALLEN, EL RUCIO LAND AND CATTLE COMPANY, INC., SAN JUANITO LAND PARTNERSHIP, AND MCALLEN TRUST PARTNERSHIP; from Hidalgo County; 13th district (13-05-00419-CV, ___ SW3d ___, 12-15-05) stay order issued November 2, 2007, lifted
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Willett delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice
Wainwright, Justice Brister, Justice Green, and Justice Johnson joined.
Chief Justice Jefferson delivered a dissenting opinion, in which Justice Medina joined.

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

In re Baylor Medical Center at Garland, No. 06-0491 (Tex. Aug. 29, 2008)(Brister)(HCLC, mandamus proceeding abated to afford new trial judge opportunity to reconsider issue of granting / ungranting new trial, plenary power)
IN RE BAYLOR MEDICAL CENTER AT GARLAND; from Dallas County; 5th district
(05-05-01663-CV, ___ SW3d ___, 01-04-06)
abatement order issued, stay order issued
The Court abates this cause pursuant to Texas Rule of Appellate Procedure 7.2.
Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Green, Justice Medina, and Justice Willett joined.
Justice Johnson delivered a dissenting opinion. (would address problem raised by the case through Court's rulemaking power)

Zurich American Ins. Co. v. Nokia Inc., No. 06-1030 (Tex. Aug. 29,2008)(Jefferson) (insurance coverage, duty to defend)
ZURICH AMERICAN INSURANCE COMPANY, FEDERAL INSURANCE COMPANY, AND NATIONAL UNION FIRE INSURANCE COMPANY v. NOKIA, INCORPORATED; from Dallas County; 5th district(05-04-01729-CV, 202 SW3d 384, 08-21-06)
The Court modifies the court of appeals' judgment and affirms that judgment as modified.Chief Justice Jefferson delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Hecht delivered a dissenting opinion, in which Justice Brister joined.

Federal Ins. Co. v. Samsung Electronics America, No. 06-1040 (Tex. Aug. 29, 2008)(Jefferson)(duty to defend cell phone company against consumer class action found)
FEDERAL INSURANCE COMPANY v. SAMSUNG ELECTRONICS AMERICA, SAMSUNG TELECOMMUNICATIONS AMERICA, L.P. F/K/A SAMSUNG TELECOMMUNICATIONS AMERICA, INC. AND SAMSUNG ELECTRONICS CO., LTD.; from Dallas County; 5th district(05-04-01316-CV, 202 SW3d 372, 08-21-06)The Court affirms the court of appeals' judgment.Chief Justice Jefferson delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined. Justice Hecht delivered a dissenting opinion, in which Justice Brister joined.

Trinity Universal Ins. Co. v. Cellular One Group, No. 07-0140 (Tex. Aug. 29, 2008)(Jefferson)(insurance law, duty to defend, companion case to Zurich v. Nokia)
TRINITY UNIVERSAL INSURANCE COMPANY v. CELLULAR ONE GROUP; from Dallas County; 5th district (05-04-01641-CV, ___ SW3d ___, 01-09-07) The Court affirms the court of appeals' judgment.Chief Justice Jefferson delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined. Justice Hecht delivered a dissenting opinion, in which Justice Brister joined.

Trammell Crow Central Texas, Ltd v. Gutierrez, No. 07-0091 (Tex. Aug. 29, 2008)(Willett)(premises liability, owner liability for crime on property, forseeability, no duty)
TRAMMELL CROW CENTRAL TEXAS, LTD. v. MARIA GUTIERREZ, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF LUIS GUTIERREZ; AND KAROL FERMAN AS NATURAL PARENT AND AS NEXT FRIEND OF LUIS ANGEL GUTIERREZ; from Bexar County; 4th district (04-05-00056-CV, 220 SW3d 33, 12-20-06)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Willett delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright, Justice Medina, and Justice Green joined.
Chief Justice Jefferson delivered a concurring opinion, in which Justice Hecht, Justice Brister, and Justice Johnson joined.

In re Calla Davis, No. 07-0147 (Tex. Aug. 29, 2008)(Jefferson) (mandamus denial) (election law) (alcohol regulation by vote, procedure for local option referendum to turn dry area wet when boundaries of relevant area have changed)
IN RE CALLA DAVIS, MELVIN HURST III, AND ANN B. HEARN; 5th district
(05-07-00198-CV, ___ SW3d ___, 02-22-07)
motion to strike response to mandamus, as amended, denied
Pursuant to Texas Rule of Appellate Procedure 52.8(a), the Court denies the petition for writ of
mandamus. Chief Justice Jefferson delivered the opinion of the Court.

Don's Building Supply, Inc. v. Onebeacon Ins. Co., No. 07-0639 (Tex. Aug. 29, 2008)(Willett)
(cert. questions)(insurance coverage dispute, duty to defend, eight corners rule, belated discovery of residential construction defect)
DON'S BUILDING SUPPLY, INC. v. ONEBEACON INSURANCE COMPANY, AS ASSIGNEE OF POTOMAC INSURANCE COMPANY OF ILLINOIS
The Court answers the questions certified by the United States Court of Appeals for the Fifth Circuit. Justice Willett delivered the opinion of the Court.

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

See separate post with list of per curiam opinions released by the Texas Supreme Court on Aug. 29, 2008