TEXAS SUPREME COURT DISPENSES WITH ABATEMENT CONVENTION AND DECIDES MERITS
Abating the Mandamus Proceeding for reconsideration of the challenged ruling by different trial court judge?
But which trial court judge?
Mandamus is supposed to be directed to the judge that signed the order complained of. But what if no one judge stays with the case through its life and different judges will preside over different hearings? Supremes acknowledge problems created by San Antonio courts' rotating docket system and dispense with abatement procedure.
In Re Schmitz (Tex. 2009)
No. 07-0581 (Tex. May 22, 2009)(Brister) (factors considered in determining whether mandamus relief should be granted, shareholder derivative suit, sufficiency of pre-suit demand letter, notice)
FROM THE OPINION: As an initial matter, we must decide whether this case should be abated for reconsideration by a successor judge. The motion to dismiss here concerns a suit filed in the 288th District Court in Bexar County. After oral arguments in this Court, Judge Sol Casseb III replaced Judge Lori Massey as judge of that court. Normally, this would require abatement for reconsideration, as “[m]andamus will not issue against a new judge for what a former one did.”[4] But Judge Massey never heard the relators’ motion.
Under Bexar County’s central docket system, pretrial motions are generally heard by a presiding judge — one of the county’s 13 civil district judges who rotate monthly in that position.[5] The motion here was actually heard and denied by Judge Gloria Saldaña, who remains in office. The question is whether to abate this case for reconsideration when the judge who ceased to hold office never ruled on the motion, and the judge who did rule on it is still in office.
We hold that abatement is not required in these circumstances.
The proper respondent in a mandamus action is “the person against whom relief is sought.”[6] For judicial orders, that should generally be the judge who made the ruling. For example, in Remington Arms Co., Inc. v. Caldwell, we held the proper respondent in a challenge to a discovery sanction was the assigned judge who issued it rather than the presiding judge of the court in which the case was filed.[7]
But the courts of appeals have split on this issue. Some have held that the respondent in a mandamus proceeding should be the presiding judge rather than the judge who signed the challenged order.[8] Others have held the opposite — that the respondent should be the judge who signed the order rather than the presiding judge.[9] One has simply addressed the writ to both.[10] The only reason stated in any of these cases for naming a judge other than the one who signed the order is that the presiding judge alone has authority to sit in the case in the future.[11] But it is never entirely predictable who will preside over a case when it returns to a trial court, as Texas law allows judges to sit for one another whenever they choose.[12] This is especially true in counties with a central docket like Bexar County, as the presiding judge hearing pretrial matters changes monthly.
Generally, of course, the respondent is not critical in mandamus proceedings, as only the real party in interest actually appears, argues, and is affected by the outcome. Indeed, on at least two occasions we have changed the respondent on our own motion in a final opinion conditionally granting the writ.[13]
Of course, the writ must be directed to someone, but in the final analysis any judge sitting in the case after mandamus relief is granted would be compelled to obey it.[14] Accordingly, we adhere to the more practical rule treating the judge who signed the order as the respondent. As the judge who signed the order here has not left office, the abatement rule does not apply.
TERMS: PETITION FOR WRIT OF MANDAMUS, RESPONDENT IN MANDAMUS PROCEEDING, REAL PARTY IN INTEREST, ABUSE OF DISCRETION, ADEQUACY OF APPELLATE REMEDY, ABATEMENT OF MANDAMUS PROCEEDING PENDING IN COURT OF APPEALS, ROTATING DOCKET SYSTEM, JUDGES EXCHANGING BENCHES, SITTING FOR EACH OTHER
Wednesday, May 27, 2009
Monday, May 25, 2009
More Special Defects Jurismalprudence: TxDOT v. York (Tex 2009)
JURY'S DAMAGES AWARD TO ACCIDENT VICTIM'S SURVIVING SPOUSE UNDER TEXAS TORT CLAIMS ACT THROWN OUT & CASE DISMISSED
Texas Department of Transportation v. York, (Tex. 2009)(substituted opinion on rehearing dismissing case rather than remanding it for trial under alternative theory)
No. 07-0743 (Tex. May 22, 2009)(per curiam)(loose gravel does not qualify as special defect to bring it within the scope of immunity waiver provided by the Texas Tort Claims Act (TTCA) under the more lenient standard to establish liability for negligence)
TEXAS SUPREME COURT DEFENDS JUDGE-MADE SOVEREIGN IMMUNITY DOCTRINE AGAINST ENCROACHMENT BY LEGIS AND JURIES - ADDS NEW CHAPTERS TO ITS POTHOLE, GRAVEL & SPECIAL DEFECTS JURISPRUDENCE
To the apparent chagrin of the Texas Supreme Court, the Legislature has carved out a number of exceptions to the cherished sovereign immunity doctrine, wielded by the Supremes of Texas with abandon and to great effect to bump countless tort and contract claims against governmental defendants from the court dockets throughout the state regardless of merits and consideration of equity.
One such legislative grant of protection to the public, and a remedy for victims of governmental negligence, is the Texas Tort Claims Act (TTCA).
So what is the Court to do to when juries render verdicts for accident victims (or their survivors) under the Act?
The answer is to tinker with statutory definitions, such as "special defects" on public highways, which may be made the basis of suit for damages by victims of resulting wrecks.
In Tex. Dept. of Transportation v. York, a driver was killed after hitting a patch of loose gravel (left after road maintenance work) and skidding into an oncoming truck. The horrendous consequences were not enough to convince the Court that a "special defect" was in fact present. After all, its was just gravel spread on the road less than an inch deep.
You see....in order to state a viable claim under the Texas Tort Claims Act, the plaintiff does not just have to skid and crash, or even die, as a result of the defective condition of the road. What the Plaintiff needed to show, and the Court went looking for, was a "mound" of gravel, not just a thin spread left over after repaving work had not been properly completed.
No piles of gravel were in evidence in this case. Nor was there a pothole big enough to swallow up the hapless driver's vehicle, which instead ended up in the path of an oncoming truck. So, of course, the jury verdict for the crash victim's spouse must be thrown out.
In the earlier opinion, the case was remanded to the trial court for retrial on a different theory, but that was too much of a concession, so the Court foreclosed the possibility of another liability finding (and damages) in a second trial by outright dismissal on rehearing.
As Justice Hecht explained with great eloquence in a recent dissent: Nothing special with ordinary potholes. To his satisfaction, now the whole court chimes in in finding nothing special about loose gravel.
And that's a matter of law on which the court - not the jury - has the final say. Indeed, the only say.
Sorry. Sure. It's tragic.
But we can't create precedent for government defendants actually having to pay damages for negligence (never mind the statutory cap). The Texas Legislature could not possibly have meant to include a case like this when it authorized suits for personal injury damages caused by special defects on public highways. - Not when the jury finds the government agency at fault and and awards a million dollars to the family of the motorist who perished in the crash.
And if the Legis did, in a lamentable deparature from social Darwinism and the cost-savings it bestows, at least there is this Court, which will spare no effort to protect and defended the state's sovereign immunity - and the public fisc.
TxDoT v. York, No. 07-0743 (Tex. May 22, 2009)(per curiam) (substituted opinion on motion for rehearing dismissing case on immunity grounds) (Texas Tort Claims Act, TTCA, road hazard, no liability)
The Supreme Court holds that loose gravel is not a special defect as a matter of law, and therefore, reverses the court of appeals’ judgment and dismisses the case.
TEXAS DEPARTMENT OF TRANSPORTATION v. JIMMY DON YORK, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF REBECCA YORK, DECEASED AND JAMES R. BODIFORD, JR., INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF REBECCA YORK, TONYA BODIFORD, AND SHIRLEY FOWLER; from Robertson County; 10th district (10-06-00210-CV, 234 SW3d 212, 08-08-07) motion for rehearing granted. The Court's opinion and judgment of December 5, 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 and dismisses the case. Per Curiam Opinion.
Justice O'Neill notes her dissent to granting the motion for rehearing [without separate opinion] (link to original superseded opinion)
MORE LOOSE GRAVEL IMMUNITY: THE COMPANION CASE
TxDoT v. Gutierrez, (Tex. 2009)
No. 07-1013 (Tex. May 22, 2009)(per curiam) (gravel left on road not special defect under the TTCA, case dismissed as barred by sovereign immunity)
FROM THE OPINION:
The Tort Claims Act does not define “special defect” but likens it to “excavations or obstructions.” Id. Thus, in York we stress that “the central inquiry is whether the condition is of the same kind or falls within the same class as an excavation or obstruction.” __ S.W.3d at __. As we hold today in York, loose gravel, unlike other conditions we have said are special defects, “does not form a hole in the road or physically block the road like an obstruction or excavation,” id. at __, nor does it “physically impair a car’s ability to travel on the road in the manner that an excavated road or obstruction blocking the road does,” id. at __ (internal quotation and citation omitted). It thus falls outside the special-defect class as a matter of law. Instead it “falls in the same class as ordinary premise defects—those conditions that do not reach the level of an obstruction or excavation.” Id. This case presents the same condition (loose gravel) due to the same re-paving procedure (a spot seal), and we reach the same result: loose gravel is a premise defect, not a special defect.
TEXAS DEPARTMENT OF TRANSPORTATION v. STEPHANIE GUTIERREZ AND RONNIE GUTIERREZ; from Jim Wells County; 4th district 04-06-00583-CV, 243 SW3d 127, 09-05-07) 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 dismisses the case. Per Curiam Opinion
Also see: Other Texas Texas Supreme Court Tort Claims Act Decisions Previous post: Accident victims' dangerous road to the Texas Supreme Court
Other commentary: Loose gravel caused by repaving is not a "special defect" creating state liability for an automobile accident (Order List for May 22, 2009) (Don Cruse Blog)
TERMS: SOVEREIGN GOVERNMENTAL IMMUNITY, WAIVER OF IMMUNITY TO SUIT AND LIABILTIY, GOVERNMENT TORT LIABILTIY, PREMISES LIABILITY, HAZARDOUS ROAD CONDITIONS, ACCIDENTS, SPECIAL DEFECT, NEGLIGENCE, ACTUAL KNOWLEDGE ELEMENT
Texas Department of Transportation v. York, (Tex. 2009)(substituted opinion on rehearing dismissing case rather than remanding it for trial under alternative theory)
No. 07-0743 (Tex. May 22, 2009)(per curiam)(loose gravel does not qualify as special defect to bring it within the scope of immunity waiver provided by the Texas Tort Claims Act (TTCA) under the more lenient standard to establish liability for negligence)
TEXAS SUPREME COURT DEFENDS JUDGE-MADE SOVEREIGN IMMUNITY DOCTRINE AGAINST ENCROACHMENT BY LEGIS AND JURIES - ADDS NEW CHAPTERS TO ITS POTHOLE, GRAVEL & SPECIAL DEFECTS JURISPRUDENCE
To the apparent chagrin of the Texas Supreme Court, the Legislature has carved out a number of exceptions to the cherished sovereign immunity doctrine, wielded by the Supremes of Texas with abandon and to great effect to bump countless tort and contract claims against governmental defendants from the court dockets throughout the state regardless of merits and consideration of equity.
One such legislative grant of protection to the public, and a remedy for victims of governmental negligence, is the Texas Tort Claims Act (TTCA).
So what is the Court to do to when juries render verdicts for accident victims (or their survivors) under the Act?
The answer is to tinker with statutory definitions, such as "special defects" on public highways, which may be made the basis of suit for damages by victims of resulting wrecks.
In Tex. Dept. of Transportation v. York, a driver was killed after hitting a patch of loose gravel (left after road maintenance work) and skidding into an oncoming truck. The horrendous consequences were not enough to convince the Court that a "special defect" was in fact present. After all, its was just gravel spread on the road less than an inch deep.
You see....in order to state a viable claim under the Texas Tort Claims Act, the plaintiff does not just have to skid and crash, or even die, as a result of the defective condition of the road. What the Plaintiff needed to show, and the Court went looking for, was a "mound" of gravel, not just a thin spread left over after repaving work had not been properly completed.
No piles of gravel were in evidence in this case. Nor was there a pothole big enough to swallow up the hapless driver's vehicle, which instead ended up in the path of an oncoming truck. So, of course, the jury verdict for the crash victim's spouse must be thrown out.
In the earlier opinion, the case was remanded to the trial court for retrial on a different theory, but that was too much of a concession, so the Court foreclosed the possibility of another liability finding (and damages) in a second trial by outright dismissal on rehearing.
As Justice Hecht explained with great eloquence in a recent dissent: Nothing special with ordinary potholes. To his satisfaction, now the whole court chimes in in finding nothing special about loose gravel.
And that's a matter of law on which the court - not the jury - has the final say. Indeed, the only say.
Sorry. Sure. It's tragic.
But we can't create precedent for government defendants actually having to pay damages for negligence (never mind the statutory cap). The Texas Legislature could not possibly have meant to include a case like this when it authorized suits for personal injury damages caused by special defects on public highways. - Not when the jury finds the government agency at fault and and awards a million dollars to the family of the motorist who perished in the crash.
And if the Legis did, in a lamentable deparature from social Darwinism and the cost-savings it bestows, at least there is this Court, which will spare no effort to protect and defended the state's sovereign immunity - and the public fisc.
TxDoT v. York, No. 07-0743 (Tex. May 22, 2009)(per curiam) (substituted opinion on motion for rehearing dismissing case on immunity grounds) (Texas Tort Claims Act, TTCA, road hazard, no liability)
The Supreme Court holds that loose gravel is not a special defect as a matter of law, and therefore, reverses the court of appeals’ judgment and dismisses the case.
TEXAS DEPARTMENT OF TRANSPORTATION v. JIMMY DON YORK, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF REBECCA YORK, DECEASED AND JAMES R. BODIFORD, JR., INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF REBECCA YORK, TONYA BODIFORD, AND SHIRLEY FOWLER; from Robertson County; 10th district (10-06-00210-CV, 234 SW3d 212, 08-08-07) motion for rehearing granted. The Court's opinion and judgment of December 5, 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 and dismisses the case. Per Curiam Opinion.
Justice O'Neill notes her dissent to granting the motion for rehearing [without separate opinion] (link to original superseded opinion)
MORE LOOSE GRAVEL IMMUNITY: THE COMPANION CASE
TxDoT v. Gutierrez, (Tex. 2009)
No. 07-1013 (Tex. May 22, 2009)(per curiam) (gravel left on road not special defect under the TTCA, case dismissed as barred by sovereign immunity)
FROM THE OPINION:
The Tort Claims Act does not define “special defect” but likens it to “excavations or obstructions.” Id. Thus, in York we stress that “the central inquiry is whether the condition is of the same kind or falls within the same class as an excavation or obstruction.” __ S.W.3d at __. As we hold today in York, loose gravel, unlike other conditions we have said are special defects, “does not form a hole in the road or physically block the road like an obstruction or excavation,” id. at __, nor does it “physically impair a car’s ability to travel on the road in the manner that an excavated road or obstruction blocking the road does,” id. at __ (internal quotation and citation omitted). It thus falls outside the special-defect class as a matter of law. Instead it “falls in the same class as ordinary premise defects—those conditions that do not reach the level of an obstruction or excavation.” Id. This case presents the same condition (loose gravel) due to the same re-paving procedure (a spot seal), and we reach the same result: loose gravel is a premise defect, not a special defect.
TEXAS DEPARTMENT OF TRANSPORTATION v. STEPHANIE GUTIERREZ AND RONNIE GUTIERREZ; from Jim Wells County; 4th district 04-06-00583-CV, 243 SW3d 127, 09-05-07) 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 dismisses the case. Per Curiam Opinion
Also see: Other Texas Texas Supreme Court Tort Claims Act Decisions Previous post: Accident victims' dangerous road to the Texas Supreme Court
Other commentary: Loose gravel caused by repaving is not a "special defect" creating state liability for an automobile accident (Order List for May 22, 2009) (Don Cruse Blog)
TERMS: SOVEREIGN GOVERNMENTAL IMMUNITY, WAIVER OF IMMUNITY TO SUIT AND LIABILTIY, GOVERNMENT TORT LIABILTIY, PREMISES LIABILITY, HAZARDOUS ROAD CONDITIONS, ACCIDENTS, SPECIAL DEFECT, NEGLIGENCE, ACTUAL KNOWLEDGE ELEMENT
Strangling the TTCA: Dallas County v. Posey (Tex. 2009)
SUPREME COURT SNUFFS OUT PARENTS' CIVIL SUIT OVER SON'S HANGING DEATH IN JAIL
Dallas County v. Posey, (Tex. 2009)
No. 08-0094 (Tex. May 22, 2009) (per curiam) (TTCA, prisoner suicide with cord of jail cell phone)
Should suicidal prisoners have a phone with a cord in their cell, with which they can kill themselves? Probably not a good idea. Dallas County concluded as much and started removing them and replacing them with cordless phones.
No rush warranted to make jail cells safe in addition to secure, though, at least not in terms of risk managment and potential legal liability.
In one of its most recent decisions in a series of Tort Claims Act rulings sapping life from the sovereign immunity waiver found in the TTCA, the Supremes absolve county of any responsibility for prisoner's death-by-hanging in a holding cell, - as usual on immunity grounds.
Tragic, no doubt, the Court concedes.
Case dismissed!
Survivors of accident victims suing under the Tort Claims Act suffer similar fate: Loose gravel on road not a special defect that would permit them to sue.
Jury verdict reversed. Case dismissed!
Also see: JCW Electronics, Inc. v. Garza, No. 05-1042 (Tex. June 27, 2008) (Opinion by Justice David Medina) (product liability, breach of implied warranty, prisoner strangled with cord of phone represented as safe for unsupervised use by inmates)
See other Texas Supreme Court Tort Claims Act Appeals (with predictable outcomes in finding that immunity bars suit contrary to the legislative purpose of the Tort Claims Act)
Prior post: Accident victims' perilous road to the Texas Supreme Court.
Dallas County v. Posey, (Tex. 2009)
No. 08-0094 (Tex. May 22, 2009) (per curiam) (TTCA, prisoner suicide with cord of jail cell phone)
Should suicidal prisoners have a phone with a cord in their cell, with which they can kill themselves? Probably not a good idea. Dallas County concluded as much and started removing them and replacing them with cordless phones.
No rush warranted to make jail cells safe in addition to secure, though, at least not in terms of risk managment and potential legal liability.
In one of its most recent decisions in a series of Tort Claims Act rulings sapping life from the sovereign immunity waiver found in the TTCA, the Supremes absolve county of any responsibility for prisoner's death-by-hanging in a holding cell, - as usual on immunity grounds.
Tragic, no doubt, the Court concedes.
Case dismissed!
Survivors of accident victims suing under the Tort Claims Act suffer similar fate: Loose gravel on road not a special defect that would permit them to sue.
Jury verdict reversed. Case dismissed!
Also see: JCW Electronics, Inc. v. Garza, No. 05-1042 (Tex. June 27, 2008) (Opinion by Justice David Medina) (product liability, breach of implied warranty, prisoner strangled with cord of phone represented as safe for unsupervised use by inmates)
See other Texas Supreme Court Tort Claims Act Appeals (with predictable outcomes in finding that immunity bars suit contrary to the legislative purpose of the Tort Claims Act)
Prior post: Accident victims' perilous road to the Texas Supreme Court.
Shareholder Derivative Action Nixed | In Re Schmitz (Tex. 2009)
TEXAS SUPREME COURT WIELDS MANDAMUS AXE TO KILL SHAREHOLDER DERIVATIVE SUIT
What is a sufficient presuit demand? - Supremes won't tell, but know it when they don't see it.
In Re Schmitz, (Tex 2009)
Mandamus issued to require trial court to dismiss shareholder derivative action on ground that presuit letter demanding that a buyout offer at $23 a share be seriously entertained (and pending deal at $22 a share be put on hold) was too vague; but Court wont' tell what a sufficiently particularized demand letter would look like. Apparently that is to be determined on a case-by-case basis.
For purposes of nixing the action at hand, the Court opines that the demand letter was not detailed enough and should not have been made anonymously. Never mind that the statute does not require that the shareholder be identified by name. So much for statutory (re)construction on this occasion. Fact scenarios in future cases may be deserving of a different rationale.
AS SUMMED UP BY JUSTICE BRISTER: We do not attempt today to explore all the ways in which a demand might or might not meet article 5.14’s “with particularity” requirement. Whether a demand is specific enough will depend on the circumstances of the corporation, the board, and the transaction involved in the complaint. But given the size of this corporation and the nature of this transaction, this demand was clearly inadequate.
Freely paraphrased: We don't like class actions and shareholder suits and will find a reason to undo them. Count on it! If everything else fails, we'll delve into the totality of the circumstances.
In Re Schmitz, No. 07-0581 (Tex. May 22, 2009)(Brister)(criteria for mandamus relief, shareholder derivative suit, sufficiency of pre-suit demand letter, adequacy of appellate remedy after final judgment)
IN RE HAROLD R. SCHMITZ, ET AL.; from Bexar County; 4th district (04-07-00359-CV, ___ SW3d ___, 07-11-07) The Court conditionally grants the petition for writ of mandamus. Justice Scott A. Brister delivered the opinion of the Court. (Chief Justice Jefferson not sitting)
What is a sufficient presuit demand? - Supremes won't tell, but know it when they don't see it.
In Re Schmitz, (Tex 2009)
Mandamus issued to require trial court to dismiss shareholder derivative action on ground that presuit letter demanding that a buyout offer at $23 a share be seriously entertained (and pending deal at $22 a share be put on hold) was too vague; but Court wont' tell what a sufficiently particularized demand letter would look like. Apparently that is to be determined on a case-by-case basis.
For purposes of nixing the action at hand, the Court opines that the demand letter was not detailed enough and should not have been made anonymously. Never mind that the statute does not require that the shareholder be identified by name. So much for statutory (re)construction on this occasion. Fact scenarios in future cases may be deserving of a different rationale.
AS SUMMED UP BY JUSTICE BRISTER: We do not attempt today to explore all the ways in which a demand might or might not meet article 5.14’s “with particularity” requirement. Whether a demand is specific enough will depend on the circumstances of the corporation, the board, and the transaction involved in the complaint. But given the size of this corporation and the nature of this transaction, this demand was clearly inadequate.
Freely paraphrased: We don't like class actions and shareholder suits and will find a reason to undo them. Count on it! If everything else fails, we'll delve into the totality of the circumstances.
In Re Schmitz, No. 07-0581 (Tex. May 22, 2009)(Brister)(criteria for mandamus relief, shareholder derivative suit, sufficiency of pre-suit demand letter, adequacy of appellate remedy after final judgment)
IN RE HAROLD R. SCHMITZ, ET AL.; from Bexar County; 4th district (04-07-00359-CV, ___ SW3d ___, 07-11-07) The Court conditionally grants the petition for writ of mandamus. Justice Scott A. Brister delivered the opinion of the Court. (Chief Justice Jefferson not sitting)
Wednesday, May 13, 2009
Texas Supreme Court's Pro Bono Jurisprudence Belies Charges of Bias
SUPREME CHARITY
Garrett vs. Borden (Tex. 2009) (per curiam)
Who said only big business, insurance companies, and government defendants win in the Texas Supreme Court? - Supremos issue another procedural mercy ruling in a prisoner's pro se IFP suit, okaying handwritten verbatim copy of inmate grievance decision in lieu of photocopy to satisfy requirement for judicial review (exhaustion of administrative remedies). Justice Brister did not even write a dissent.
In a previous case, the Supremos agreed to apply the mailbox rule to prisoner's filing although prisoner did not have access to a receptacle for outgoing mail maintained and operated by the U.S. Postal Service.
It will not make much of a difference since prisoners routinely lose their suits anyway, but a ruling in favor of an inmate litigant can help boost Court's legitimacy by creating the appearance that those at the bottom rungs of society have a fair shot at justice too, while not giving anything away substantively.
But that's not the only bonus that comes along with jurisprudential charity on access-to-justice issues. The latest opinion will also provide occasion for the Chief to tout the success of the new Pro Bono Referral Program, which not only curbs pro se pleading excessess - not to mention hand-written "briefs" - but also affords volunteer lawyers opportunities to gain or enhance supreme appellate experience.
Charity not only for writ writer riff-raff.
Charity with a purpose!
Garrett vs. Borden (Tex. 2009) (per curiam)
Who said only big business, insurance companies, and government defendants win in the Texas Supreme Court? - Supremos issue another procedural mercy ruling in a prisoner's pro se IFP suit, okaying handwritten verbatim copy of inmate grievance decision in lieu of photocopy to satisfy requirement for judicial review (exhaustion of administrative remedies). Justice Brister did not even write a dissent.
In a previous case, the Supremos agreed to apply the mailbox rule to prisoner's filing although prisoner did not have access to a receptacle for outgoing mail maintained and operated by the U.S. Postal Service.
It will not make much of a difference since prisoners routinely lose their suits anyway, but a ruling in favor of an inmate litigant can help boost Court's legitimacy by creating the appearance that those at the bottom rungs of society have a fair shot at justice too, while not giving anything away substantively.
But that's not the only bonus that comes along with jurisprudential charity on access-to-justice issues. The latest opinion will also provide occasion for the Chief to tout the success of the new Pro Bono Referral Program, which not only curbs pro se pleading excessess - not to mention hand-written "briefs" - but also affords volunteer lawyers opportunities to gain or enhance supreme appellate experience.
Charity not only for writ writer riff-raff.
Charity with a purpose!
Saturday, May 9, 2009
Accident victims' hazardous road to the Texas Supreme Court
Another premises liability (road hazard) case with predictable outcome; even more predictable since a governmental entity would have had to pay for injuries. That's a no-no for the Supremos. Since the Legislature waived sovereign immunity by enacting the Texas Tort Claims Act, the legislation must be construed to prevent an outcome that could actually make government liable for personal injury damages caused to innocent citizens. To their credit, three dissented, including the Chief.
Denton County v. Beynon,
No. 08-0016 (Tex. May 1, 2009) (Majority opinion by Willett) (Texas Tort Claims Act TTCA governmental immunity waiver, flood gate pole that pointed toward oncoming traffic and impaled car in accident did not qualify as special defect to bring personal injury claim within TTCA's waiver of immunity in crash victim's suit against county)
FROM JUSTICE O'NEILL'S DISSENT:
It is hard to imagine anything more dangerous than a seventeen-foot metal pole pointing like a spear in the direction of oncoming traffic. The Court doesn’t appear to disagree. It concludes, however, that ordinary users of the roadway are not expected to veer off the asphalt pavement, so anything they might encounter if they do cannot be a special defect.
I would agree with the Court if the particular hazard were farther from the road than the metal pole that impaled the plaintiff’s vehicle here. But departing a mere three feet from the road to avoid a collision is not out of the ordinary, and the floodgate arm’s close proximity to the road’s edge posed a threat that normal users of the road would not expect. Because the Court concludes otherwise, I respectfully dissent.
Rhiannon Beynon was a passenger in the backseat of a vehicle driven by Mark Hilz. While driving on Old Alton Road in Denton County, Hilz observed an oncoming vehicle with its brights on driving down the center of the road. To avoid the oncoming car, Hilz steered his vehicle toward the edge of the road. As Hilz moved his car over, the right tires left the pavement and dropped about eight inches onto the unpaved, unimproved shoulder. Hilz quickly turned his wheels to the left and returned to the road briefly. But in his attempt to correct the path of the car, he lost control. Hilz turned the car left and then tried to correct by turning to the right. When he turned back to the right, the front wheels left the road and the car’s undercarriage caught the edge of the pavement. The vehicle began to slide along the road at a forty-five degree angle with its rear wheels still on the pavement. While the car slid along the pavement, a floodgate arm punctured the driver’s door.
In its proper position the floodgate arm, a seventeen-foot metal pole attached to a base buried in the ground, would have been facing away from traffic and secured in place. However, the arm was unsecured and improperly pointing toward oncoming traffic when Hilz’s car collided with it three feet from the pavement.
The arm penetrated the driver’s door, pierced Rhiannon’s leg, and exited through the floorboard. The car stopped its slide at the base of the floodgate. Hilz did not see the floodgate arm or realize that the car had collided with it until he heard Rhiannon’s screams. Rhiannon’s injuries resulted in amputation of her leg below the knee.
The Court does not dispute that the floodgate arm was in the wrong position, that the floodgate arm impaled the vehicle[1], or that its open position was unexpected and dangerous. The Court concludes, however, that because Hilz veered three feet from the asphalt, he was no longer an ordinary user of the road and Denton County’s plea to the jurisdiction should have been granted.
I disagree.
Special defects are “defects of the same kind or class as ‘excavations or obstructions on highways, roads, or streets’ that present an ‘unexpected and unusual danger to ordinary users of roadways.’” City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008) (citation omitted). To be a special defect, the condition must also “unexpectedly and physically impair a car’s ability to travel on the road.” State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999).
A special defect need not occur on the surface of a road, but “[w]hether on a road or near one, . . . conditions can be [special defects] only if they pose a threat to the ordinary users of a particular roadway.” State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 n.3 (Tex. 1992).The Court concludes the floodgate arm is not a special defect because it was not blocking the road and the objective expectations of an “ordinary user” would not include veering off the road and onto the grass. But “ordinary users” of roads sometimes stray outside the lines, else there would be no need for shoulders.
In my view, vehicle operators do not cease to be ordinary users every time they veer onto a shoulder. As the court of appeals observed, normal users of the road nearly always drive on the paved surface, yet “it is certainly not inconceivable that a normal user of the road might pull off or leave the edge of the road onto the unimproved shoulder for one reason or another, either intentionally or accidentally.” 242 S.W.3d at 174. In the ordinary course of driving, hazards like road debris, livestock, or other drivers who don’t respect their lanes are often encountered that require prudent drivers to take advantage of the shoulder, whether improved or unimproved.
The Court’s conclusion that a driver was no longer an ordinary user because two of his tires left the roadway as the result of his efforts to escape a head-on collision is inconsistent with what objectively reasonable drivers do every day.The Court recognizes that the test for determining the expectations of an ordinary user is an objective one. Yet it fails to conduct an objective analysis, citing only Hilz’s statement that “the ‘normal course of travel for [Old Alton Road] would be the asphalt pavement.’” Hilz’s testimony merely states the obvious: users of the road normally drive on the paved surface. That doesn’t mean veering three feet from the asphalt to avoid a collision, with two wheels still on the road, places a driver beyond the normal course of travel.
The Court’s concept of “ordinary user” limits special defects to those that appear only within the lines between the shoulders of the road, contrary to our acknowledgment in Payne that a number of courts have recognized that “conditions threatening normal users of a road may be special defects even though they do not occur on the surface of a road.” 838 S.W.2d at 238 n.3 (citations omitted); see, e.g., Harris County v. Ciccia ex rel. Ciccia, 125 S.W.3d 749, 754–55 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (holding that a culvert yards beyond the road’s end where a “right-turn only” lane directed traffic is a special defect); see also Tex. Dep’t of Transp. v. Dorman, No. 05-97-00531-CV, 1999 WL 374167 at *2–4 (Tex. App.—Dallas June 10, 1999, pet. denied); Morse v. State, 905 S.W.2d 470, 474–76 (Tex. App.—Beaumont 1995, writ denied).Not all off-road objects a driver might encounter in the ordinary course of travel qualify as special defects; to the contrary, few do.
Obstructions like road signs, construction equipment in marked construction zones, and properly secured floodgate arms are not unexpected and do not pose an unusual danger to ordinary travelers. See City of Dallas v. Giraldo, 262 S.W.3d 864, 871 (Tex. App.—Dallas 2008, no pet.) (holding that a bulldozer parked eight to ten feet off the edge of the road is “not of the same kind or class as the excavations or obstructions the statute contemplates” and “did not pose a threat to the ordinary users of the roadway”); Harris County v. Smoker, 934 S.W.2d 714, 719 (Tex. App.—Houston [1st Dist.] 1996, writ denied) (“[A] longstanding, routine, or permanent condition is not a special defect.”).
But an unsecured floodgate arm pointing directly at oncoming traffic a mere three feet from the road’s edge is out of the ordinary, unexpected, and extremely dangerous to ordinary users of the roadway.Under the particular circumstances presented in this case, I consider the floodgate arm a special defect and would affirm the court of appeals’ judgment. Because the Court does not, I respectfully dissent.
Harriet O’Neill
Justice
OPINION DELIVERED: May 1, 2009
[1] The Court summarily concludes that the floodgate arm “is not of the same kind or class as an excavation or obstruction . . . .” It is hard to envision a more significant obstruction than a seventeen-foot metal pole piercing a vehicle’s door and floorboard. Moreover, as we have noted, “The examples in the statute are not exclusive, and courts are to construe ‘special defects’ to include defects of the same kind or class as the ones expressly mentioned in the statute.” City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997).
In my view, a metal pole that pierced a vehicle, preventing it from traveling farther down the road, is similar enough to an obstruction to fall within the statute’s ambit.
Denton County v. Beynon,
No. 08-0016 (Tex. May 1, 2009) (Majority opinion by Willett) (Texas Tort Claims Act TTCA governmental immunity waiver, flood gate pole that pointed toward oncoming traffic and impaled car in accident did not qualify as special defect to bring personal injury claim within TTCA's waiver of immunity in crash victim's suit against county)
FROM JUSTICE O'NEILL'S DISSENT:
It is hard to imagine anything more dangerous than a seventeen-foot metal pole pointing like a spear in the direction of oncoming traffic. The Court doesn’t appear to disagree. It concludes, however, that ordinary users of the roadway are not expected to veer off the asphalt pavement, so anything they might encounter if they do cannot be a special defect.
I would agree with the Court if the particular hazard were farther from the road than the metal pole that impaled the plaintiff’s vehicle here. But departing a mere three feet from the road to avoid a collision is not out of the ordinary, and the floodgate arm’s close proximity to the road’s edge posed a threat that normal users of the road would not expect. Because the Court concludes otherwise, I respectfully dissent.
Rhiannon Beynon was a passenger in the backseat of a vehicle driven by Mark Hilz. While driving on Old Alton Road in Denton County, Hilz observed an oncoming vehicle with its brights on driving down the center of the road. To avoid the oncoming car, Hilz steered his vehicle toward the edge of the road. As Hilz moved his car over, the right tires left the pavement and dropped about eight inches onto the unpaved, unimproved shoulder. Hilz quickly turned his wheels to the left and returned to the road briefly. But in his attempt to correct the path of the car, he lost control. Hilz turned the car left and then tried to correct by turning to the right. When he turned back to the right, the front wheels left the road and the car’s undercarriage caught the edge of the pavement. The vehicle began to slide along the road at a forty-five degree angle with its rear wheels still on the pavement. While the car slid along the pavement, a floodgate arm punctured the driver’s door.
In its proper position the floodgate arm, a seventeen-foot metal pole attached to a base buried in the ground, would have been facing away from traffic and secured in place. However, the arm was unsecured and improperly pointing toward oncoming traffic when Hilz’s car collided with it three feet from the pavement.
The arm penetrated the driver’s door, pierced Rhiannon’s leg, and exited through the floorboard. The car stopped its slide at the base of the floodgate. Hilz did not see the floodgate arm or realize that the car had collided with it until he heard Rhiannon’s screams. Rhiannon’s injuries resulted in amputation of her leg below the knee.
The Court does not dispute that the floodgate arm was in the wrong position, that the floodgate arm impaled the vehicle[1], or that its open position was unexpected and dangerous. The Court concludes, however, that because Hilz veered three feet from the asphalt, he was no longer an ordinary user of the road and Denton County’s plea to the jurisdiction should have been granted.
I disagree.
Special defects are “defects of the same kind or class as ‘excavations or obstructions on highways, roads, or streets’ that present an ‘unexpected and unusual danger to ordinary users of roadways.’” City of Dallas v. Reed, 258 S.W.3d 620, 622 (Tex. 2008) (citation omitted). To be a special defect, the condition must also “unexpectedly and physically impair a car’s ability to travel on the road.” State v. Rodriguez, 985 S.W.2d 83, 85 (Tex. 1999).
A special defect need not occur on the surface of a road, but “[w]hether on a road or near one, . . . conditions can be [special defects] only if they pose a threat to the ordinary users of a particular roadway.” State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 238 n.3 (Tex. 1992).The Court concludes the floodgate arm is not a special defect because it was not blocking the road and the objective expectations of an “ordinary user” would not include veering off the road and onto the grass. But “ordinary users” of roads sometimes stray outside the lines, else there would be no need for shoulders.
In my view, vehicle operators do not cease to be ordinary users every time they veer onto a shoulder. As the court of appeals observed, normal users of the road nearly always drive on the paved surface, yet “it is certainly not inconceivable that a normal user of the road might pull off or leave the edge of the road onto the unimproved shoulder for one reason or another, either intentionally or accidentally.” 242 S.W.3d at 174. In the ordinary course of driving, hazards like road debris, livestock, or other drivers who don’t respect their lanes are often encountered that require prudent drivers to take advantage of the shoulder, whether improved or unimproved.
The Court’s conclusion that a driver was no longer an ordinary user because two of his tires left the roadway as the result of his efforts to escape a head-on collision is inconsistent with what objectively reasonable drivers do every day.The Court recognizes that the test for determining the expectations of an ordinary user is an objective one. Yet it fails to conduct an objective analysis, citing only Hilz’s statement that “the ‘normal course of travel for [Old Alton Road] would be the asphalt pavement.’” Hilz’s testimony merely states the obvious: users of the road normally drive on the paved surface. That doesn’t mean veering three feet from the asphalt to avoid a collision, with two wheels still on the road, places a driver beyond the normal course of travel.
The Court’s concept of “ordinary user” limits special defects to those that appear only within the lines between the shoulders of the road, contrary to our acknowledgment in Payne that a number of courts have recognized that “conditions threatening normal users of a road may be special defects even though they do not occur on the surface of a road.” 838 S.W.2d at 238 n.3 (citations omitted); see, e.g., Harris County v. Ciccia ex rel. Ciccia, 125 S.W.3d 749, 754–55 (Tex. App.—Houston [1st Dist.] 2003, pet. denied) (holding that a culvert yards beyond the road’s end where a “right-turn only” lane directed traffic is a special defect); see also Tex. Dep’t of Transp. v. Dorman, No. 05-97-00531-CV, 1999 WL 374167 at *2–4 (Tex. App.—Dallas June 10, 1999, pet. denied); Morse v. State, 905 S.W.2d 470, 474–76 (Tex. App.—Beaumont 1995, writ denied).Not all off-road objects a driver might encounter in the ordinary course of travel qualify as special defects; to the contrary, few do.
Obstructions like road signs, construction equipment in marked construction zones, and properly secured floodgate arms are not unexpected and do not pose an unusual danger to ordinary travelers. See City of Dallas v. Giraldo, 262 S.W.3d 864, 871 (Tex. App.—Dallas 2008, no pet.) (holding that a bulldozer parked eight to ten feet off the edge of the road is “not of the same kind or class as the excavations or obstructions the statute contemplates” and “did not pose a threat to the ordinary users of the roadway”); Harris County v. Smoker, 934 S.W.2d 714, 719 (Tex. App.—Houston [1st Dist.] 1996, writ denied) (“[A] longstanding, routine, or permanent condition is not a special defect.”).
But an unsecured floodgate arm pointing directly at oncoming traffic a mere three feet from the road’s edge is out of the ordinary, unexpected, and extremely dangerous to ordinary users of the roadway.Under the particular circumstances presented in this case, I consider the floodgate arm a special defect and would affirm the court of appeals’ judgment. Because the Court does not, I respectfully dissent.
Harriet O’Neill
Justice
OPINION DELIVERED: May 1, 2009
[1] The Court summarily concludes that the floodgate arm “is not of the same kind or class as an excavation or obstruction . . . .” It is hard to envision a more significant obstruction than a seventeen-foot metal pole piercing a vehicle’s door and floorboard. Moreover, as we have noted, “The examples in the statute are not exclusive, and courts are to construe ‘special defects’ to include defects of the same kind or class as the ones expressly mentioned in the statute.” City of Grapevine v. Roberts, 946 S.W.2d 841, 843 (Tex. 1997).
In my view, a metal pole that pierced a vehicle, preventing it from traveling farther down the road, is similar enough to an obstruction to fall within the statute’s ambit.
OTHER RECENT TTCA DECISIONS FROM THE TEXAS SUPREME COURT:
City of Dallas v. Reed, No. 07-0469 (Tex. May 16, 2008)(per curiam) (TTCA, premises liability, unsafe road condition, plea to the jurisdiction)
UT-PAN AM v. Aguilar, No. 07-0424 (Tex. Apr. 18, 2008)(per curiam) (Texas Tort Claims Act, TTCA, premises liability, dangerous condition, ostrich defense, know-nothing defense)
City of Corsicana v. Stewart, No. 07-0058 (Tex. Mar. 28, 2008)(per curiam) (TTCA, premises liability, dangerous condition, children's drowning deaths, flooded roads)
Saturday, May 2, 2009
May 2009 Texas Supreme Court Opinions
May 22, 2009 Tex. Opinions
SUPREME COURT MANDAMUS ENDS SHAREHOLDER DERIVATIVE SUIT
No. 07-0581 (Tex. May 22, 2009)(Brister) (criteria for mandamus relief, shareholder derivative suit, sufficiency of pre-suit demand letter, notice) IN RE HAROLD R. SCHMITZ, ET AL.; from Bexar County; 4th district (04-07-00359-CV, ___ SW3d ___, 07-11-07)The Court conditionally grants the petition for writ of mandamus.Justice Scott Brister delivered the opinion of the Court. (Chief Justice Jefferson not sitting)
JURY VERDICT FOR ACCIDENT VICTIM UNDER TEXAS TORT CLAIMS ACT THROWN OUT
TxDOT v. York, (Tex. 2009)(per curiam) (opinion on rehearing)
No. 07-0743 (Tex. May 22, 2009)(per curiam) (TTCA, loose gravel on road not a special defect) TEXAS DEPARTMENT OF TRANSPORTATION v. JIMMY DON YORK, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF REBECCA YORK, DECEASED AND JAMES R. BODIFORD, JR., INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF REBECCA YORK, TONYA BODIFORD, AND SHIRLEY FOWLER; from Robertson County; 10th district (10-06-00210-CV, 234 SW3d 212, 08-08-07) motion for rehearing granted. The Court's opinion and judgment of December 5, 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 and dismisses the case. Per Curiam Opinion. Justice O'Neill notes her dissent to granting the motion for rehearing [no dissenting opinion, though]
LOOSE GRAVEL NOT A SPECIAL DEFECT
TxDoT v. Gutierrez, (Tex. 2009)
No. 07-1013 (Tex. May 22, 2009)(per curiam) (TTCA, loose gravel not a special defect) TEXAS DEPARTMENT OF TRANSPORTATION v. STEPHANIE GUTIERREZ AND RONNIE GUTIERREZ; from Jim Wells County; 4th district 04-06-00583-CV, 243 SW3d 127, 09-05-07)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 dismisses the case. Per Curiam Opinion
COUNTY HELD IMMUNE FROM LIABILITY IN INMATE'S DEATH WITH PHONE CORD
Dallas County v. Posey, (Tex. 2009)
No. 08-0094 (Tex. May 22, 2009) (per curiam) (TTCA, prisoner suicide with telephone cord in holding cell) DALLAS COUNTY v. KIM POSEY, ET AL.; from Dallas County; 5th district (05-06-01373-CV, 239 SW3d 336, 08-28-07. 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 dismisses the case. Per Curiam Opinion
May 15, 2009 Tex. Sup. Ct. Opinions
MERE CONFLICT OF INTEREST NOT VALID REASON FOR REMOVING INDEPENDENT EXECUTOR OF ESTATE
Kappus v. Kappus, (Tex. 2009)
No. 08-0136 (Tex. May 1, 2009)(Willett) (probate case, mere conflict of interest not enough to warrant removal of independent executor of estate)
JOHN KAPPUS v. SANDRA L. KAPPUS; from Anderson County; 12th district (12-06-00233-CV, 242 SW3d 182, 11-30-07) The Court reverses the court of appeals' judgment and renders judgment. Justice Willett delivered the opinion of the Court
JUDICIAL TORT REFORM: DEFENDANT'S MOTION FOR SANCTIONS STILL VIABLE DESPITE NONSUIT SUPREME COURT REMANDS NON-SUITED MALPRACTICE CASE TO TRIAL COURT FOR SANCTIONS AGAINST PLAINTIFF
Crites, MD v. Collins, (Tex. 2009)
No. 07-0315 (Tex. May 1, 2009)(per curiam) (medical malpractice, failure to file expert report) (defendant's counterclaim for sanctions in the form of attorney's fees may proceed following med-mal plaintiff's nonsuit)(finality of judgment, timeliness of notice of appeal, deadline for filing notice of appeal)
FRANCES B. CRITES, M.D. v. LINDA COLLINS AND WILLIE COLLINS; from Dallas County; 5th district (05-06-00453-CV, ___ SW3d ___, 02-28-07) 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.
EMINENT DOMAIN: TEXAS SUPREME COURT AGAIN RULES AGAINST PROPERTY OWNER IN CONDEMNATION DISPUTE
State of Texas v. Bristol Hotel Asset Co., (Tex. 2009)
No. 07-0896 (Tex. May 15, 2009)(per curiam) (condemnation, uncompensable losses, lost revenue testimony should not have been admitted)
THE STATE OF TEXAS v. BRISTOL HOTEL ASSET CO.; from Bexar County; 4th district (04-06-00150-CV, ___ SW3d ___, 07-18-07) 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 the trial court. Per Curiam Opinion.
Supremes revisit sovereign immunity issues in several decisions issued May 1, 2009; hand down long-awaited decision on constitutionality of appellate procedure in parental rights termination cases.
MORE TOXIC JURISPRUDENCE: POISON GAS CLAIM INACTIONABLE AS PUBLIC NUISANCE, TAKINGS CLAIM
City of San Antonio v. Pollock, (Tex. 2009)
No. 04-1118 (Tex. May 1, 2009)(Hecht)(no municipal liability for public nuisance, underground poison gas leak seepage, causal connection, knowledge, predictibility of consequences)
CITY OF SAN ANTONIO v. CHARLES POLLOCK AND TRACY POLLOCK, INDIVIDUALLY AND AS NEXT FRIENDS OF SARAH JANE POLLOCK, A MINOR CHILD; from Bexar County; 4th district (04-03-00403-CV, 155 SW3d 322, 08-18-04) The Court reverses the court of appeals' judgment and renders judgment.Justice Hecht delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice Johnson, and Justice Willett joined, and in all but Part II-C of which Justice Brister joined.
Justice Medina delivered a dissenting opinion, in which Justice O'Neill joined. (Justice Green not sitting)
SUB-GOVERNMENTAL QUASI-SOVEREIGN IMMUNITY
Harris County Hospital District v. Tomball Regional Hospital,
No. 05-0986 (Tex. May 1, 2009)(Johnson) (sovereign immunity of hospital district)
HARRIS COUNTY HOSPITAL DISTRICT v. TOMBALL REGIONAL HOSPITAL; from Harris County; 14th district (14-04-00263-CV, 178 SW3d 244, 07-28-05) The Court reverses the court of appeals' judgment and dismisses the case.Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Medina, and Justice Green joined.
Chief Justice Jefferson delivered a dissenting opinion, in which Justice O'Neill, Justice Brister, and Justice Willett joined. (plaintiff should be permitted to pursue equitable relief for constitutional violation)
GOVERNMENTAL IMMUNITY / PROPER DEFENDANT / AVAILABLE AND UNAVAILABLE FORM OF RELIEF / OFFICIAL CAPACITY SUITS
City of El Paso v. Heinrich, (Tex. 2009)
No. 06-0778 (Tex. May 1, 2009)(Jefferson) (governmental immunity, retrospective vs. prospective relief, equitable relief against official capacity defendant not barred by sovereign immunity doctrine)
THE CITY OF EL PASO, ET AL. v. LILLI M. HEINRICH; from El Paso County; 8th district (08-05-00203-CV, 198 SW3d 400, 07-20-06) The Court affirms in part and 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.
RES JUDICATA EFFECT OF DIVORCE DECREE / COLLATERAL ATTACK BARRED / DIVISION OF RETIREMENT / DISABILITY BENEFITS
Hagen v. Hagen, (Tex. 2009)
No. 07-1065 (Tex. May 1 2009)(Johnson)(family law, divorce decree, postjudgment clarification vs. modification of final decree, retirement disability benefits division, res judicata, relitigation)
RAOUL HAGEN v. DORIS J. HAGEN; from Bexar County; 4th district (04-06-00705-CV, ___ SW3d ___, 08-01-07) The Court reverses the court of appeals' judgment and affirms the trial court's judgment. Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Green, and Justice Willett joined.
Justice Brister delivered a dissenting opinion, in which Justice O'Neill and Justice Medina joined.
GOVERNMENTAL IMMUNITY / TORT CLAIMS ACT / SPECIAL DEFECT
Denton County v. Beynon, (Tex. 2009)
No. 08-0016 (Tex. May 1, 2009) (Willett) (Texas Tort Claims Act TTCA governmental immunity waiver, special defect hazardous road condition)
DENTON COUNTY, TEXAS v. DIANNE BEYNON AND ROGER BEYNON, INDIVIDUALLY, ET AL.; from Denton County; 2nd district (02-07-00066-CV, 242 SW3d 169, 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 dismisses the case.
Justice Don R. Willett delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, Justice Green, and Justice Johnson joined.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Medina joined.
CONSTITUTIONALITY OF STRINGENT APPELLATE REQUIREMENTS IN PARENTAL RIGHTS TERMINATION APPEALS
In Interest of JOA, (Tex. 2009)
No. 08-0379 (Tex. May 1, 2009)(Medina) (termination of parental rights appeal, constitutionality of statement of points required for appeals from orders terminating a parent's rights, appellate procedure, parent-child relationship)
IN THE INTEREST OF J.O.A., T.J.A.M., T.J.M., AND C.T.M., CHILDREN; from Collingsworth County; 7th district (07-07-00042-CV, 262 SW3d 7, 02-25-08) The Court modifies the court of appeals' judgment, affirms the judgment as modified, and remands the case to the trial court.
Justice David Medina delivered the opinion of the Court.
Justice Willett delivered a concurring opinion.
STATUTORY CONSTRUCTION: WHAT IS A COPY?
Garrett v. Borden, (Tex. 2009)
No. 08-0506 (Tex. May 1, 2009)(per curiam)(statutory construction; does hand-written copy qualify as a copy required by the prison inmate litigation statute?)
MICHAEL LOU GARRETT v. JACK M. BORDEN, ET AL.; from Potter County; 7th district (07-07-00163-CV, ___ SW3d ___, 05-29-08) 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 the trial court.
Per Curiam Opinion.
ON DENIAL OF MOTION FOR REHEARING:
Substituted Concurring Opinion in In Re Watkins, MD (Tex 2009)
No. 06-0653 (Tex. 2009) (Substituted concurrence by Phil Johnson)
IN RE MARY LOUISE WATKINS, M.D.; from Cameron County; 13th district (13-05-00765-CV & 13-06-00080-CV, 192 SW3d 672, 05-04-06) The concurring opinion by Justice Johnson issued January 23, 2009 is withdrawn and the concurring opinion issued this date is substituted. The remaining opinions, issued January 23, 2009, remain in place.
Subscribe to:
Posts (Atom)
