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 The Court's opinion and judgment of December 5, 2008 are withdrawn and the opinion and judgment of this date are substituted.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.
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