NOT IN MY CITY: RELIGIOUS FREEDOM RESTORATION ACT GIVEN TEETH IN NIMBY DISPUTE: PASTER PREVAILS IN FIGHT TO HAVE HALFWAY HOUSE ZONED OUT OF THE WAY.
Barr v. City of Sinton, (Tex. 2009)
No. 06-0074 (Tex. Jun. 19, 2009)(Hecht) (Texas Religious Freedom Restoration Act (TRFRA) enforced in local NIMBY dispute over halfway house for former prisoners run by pastor)
PASTOR RICK BARR AND PHILEMON HOMES, INC. v. CITY OF SINTON; from San Patricio County; 13th district (13-03-00727-CV, ___ SW3d ___, 11-23-05)motion to take judicial notice granted The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Hecht delivered the opinion of the Court.
EXCERPTS FROM THE PROFUSELY FOOT-NOTED 30-PAGE OPINION BY JUSTICE NATHAN HECHT:
The Texas Religious Freedom Restoration Act (TRFRA) provides that “a government agency may not substantially burden a person’s free exercise of religion [unless it] demonstrates that the application of the burden to the person . . . is in furtherance of a compelling governmental interest [and] is the least restrictive means of furthering that interest.”1 TRFRA does not immunize religious conduct from government regulation; it requires the government to tread carefully and lightly when its actions substantially burden religious exercise. In this case, a city resident, as part of a religious ministry, offered men recently released from prison free housing and religious instruction in two homes he owned. In response, the city passed a zoning ordinance that not only precluded the use of the homes for that purpose but effectively banned the ministry from the city. The trial court found that the city had not violated TRFRA, and the court of appeals affirmed.2 We reverse and remand to the trial court for further proceedings.
* * *
None of the arguments made by the City or the court of appeals supports the assertion that zoning ordinances are exempt from TRFRA.
* * *
Ordinance 1999-02 prohibited Barr from operating his halfway house ministry in the two homes he owned adjacent his supporting church, and the city manager testified that it was “a fair statement” that alternate locations were “probably . . . minimal” and “possibly” “pretty close to nonexistent”. The court of appeals stated that “there is nothing in the ordinance that precludes Barr from providing his religious ministry to parolees and probationers, from providing instruction, counsel, and helpful assistance in other facilities in Sinton, or from housing these persons outside the City and providing his religious ministry to them there.”75 But there is no evidence of any alternate location in the City of Sinton where the ordinance would have allowed Barr’s ministry to operate, or of possible locations outside the city. Moreover, while evidence of alternatives is certainly relevant to the issue whether zoning restrictions substantially burden free religious exercise, evidence of some possible alternative, irrespective of the difficulties presented, does not, standing alone, disprove substantial burden.76 In a related context, the Supreme Court has observed that “one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place.”77 As a practical matter, the ordinance ended Barr’s ministry, as the City Council surely knew it would.78 We therefore have no hesitation in concluding that Ordinance 1999-02 substantially burdened Barr’s ministry. The trial court’s unexplained finding to the contrary has no support in the evidence.
* * *
Although TRFRA places the burden of proving a substantial burden on the claimant, it places the burden of proving a compelling state interest on the government.
* * *
The City’s failure to establish a compelling interest in this case in no way suggests that the government never has a compelling interest in zoning for religious use of property or in regulating halfway houses operated for religious purposes.112 TRFRA guarantees a process, not a result. The City’s principal position in this case has been that it is exempt from TRFRA. We do not hold that the City could not have satisfied TRFRA; we hold only that it failed to do so.
* * *
Finally, TRFRA requires that even when the government acts in furtherance of a compelling interest, it must show that it used the least restrictive means of furthering that interest. The City has made no effort to show that it complied with this requirement. Ordinance 1999-02 is very broad. If as the city manager testified, locations in the City of Sinton more than 1,000 feet from a residential area, school, park, recreational area, or church are “pretty close to nonexistent”, the ordinance effectively prohibits any private “residential facility . . . operated for the purpose of housing persons . . . convicted of misdemeanors . . . within one . . . year after having been released from confinement in any penal institution” inside the city limits. Read literally, this would prohibit a Sinton resident from leasing a room to someone within a year of his having been jailed for twice driving with an invalid license.113 Such restrictions are certainly not the least restrictive means of insuring that religiously operated halfway houses do not jeopardize children’s safety and residents’ wellbeing.
* * *
We conclude, based on the record before us, that Ordinance 1999-02, as applied to Barr’s ministry, violates TRFRA. Accordingly, we reverse the judgment of the court of appeals. Because the trial court did not reach the issues of appropriate injunctive relief, actual damages, and attorney fees, we remand the case to the trial court for further proceedings in accordance with this opinion.
Sunday, June 21, 2009
PUNITIVE DAMAGES (CAP) SEQUEL: Columbia Medical Center v. Hogue III (Tex. 2009)
3 OF 9 SUPREMES ISSUE DISSENT TO CLARIFY THAT THE MANDATE NEEDS NO CLARIFICATION IN RARE CASE IN WHICH SUPREME COURT UPHELD EXEMPLARY DAMAGES IN MED-MAL SUIT - PARTIES HAD A DISPUTE ABOUT HOW TO READ THE MANDATE AND RECALCULATE DAMAGES FOLLOWING DELETION OF LOSS-OF-INHERITANCE DAMAGES BY THE SUPREME COURT.
Columbia Medical Center of Law Colinas, Inc. v. Hogue, (Tex. 2009)
No. 04-0575 (Tex. Jun 17, 2009) (Wainwright) (dissenting from majority's denial of petitioner's motion for clarification of the mandate)
FROM THE DISSENTING OPINION: Our original opinion, issued August 29, 2008, reversed $306,393 awarded as damages to the Hogues for loss of inheritance and affirmed the award of exemplary damages, capped by section 41.008 of the Texas Civil Practice and Remedies Code. 271 S.W.3d at 255, 257. The other amounts awarded as actual damages were not changed. We held that the evidence submitted to the jury was legally insufficient to support an award of damages for loss of inheritance. Id. at 255. However, the loss of inheritance damages had been included as economic damages in the trial court’s judgment to calculate the maximum amount of punitive damages that could be awarded under the applicable statutory cap. See Tex. Civ. Prac. & Rem. Code § 41.008(b). Under chapter 41, punitive damages were capped at (1) two times any amount of economic damages plus (2) an amount equal to any noneconomic damages not exceeding $750,000. Id.2
After the Court issued its opinion and judgment, Columbia Medical filed a motion for rehearing, which was denied January 16, 2009. That same day, we issued the mandate. Thirteen days later Columbia Medical issued a wire transfer to the trust account for the Hogues’ counsel in the amount of $8,906,385.50, which included payment of compensatory damages, punitive damages, and post-judgment interest at a ten percent rate, compounded annually. Columbia Medical’s tender had reduced the amount of damages by properly deducting the loss of inheritance damages from the compensatory damages and adjusting the exemplary damages award accordingly. In other words, Columbia Medical did not include $612,786—two times the amount awarded as loss of inheritance damages—in calculating the exemplary damages cap. The Hogues refused the tender.
* * *
The opinion and judgment are clear: The Hogues are not entitled to loss of inheritance damages, either directly or indirectly through an increase of the exemplary damages cap. By denying this motion, the Court is leaving the parties in a quandary. It is not denying that Columbia Medical’s position on the punitive damages cap is correct (which it undisputably is). If the Hogues continue to press the issue, at best the failure to address the motion to clarify will force Columbia Medical to continue to litigate this dispute, perhaps by filing a new action, having to pay post-judgment interest that continues to accrue, incurring additional attorneys’ fees, and expending time over a matter we settled nearly a year ago. It is possible that this matter will come before the Court again. At worst, the Court’s inaction today could result in a more than $612,000 windfall directly contrary to our opinion.
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) petitioner's motion to clarify mandate denied
Justice Wainwright delivered an opinion, in which Justice Hecht and Justice Brister joined, dissenting to the denial.
LINKS TO PRIOR OPINIONS:
Corrected Opinion Released Jan. 16, 2009:
Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, No. 04-0575 (Tex. 2009)(substituted corrected opinion) (reh'g denied) (medical malpractice, gross negligence, punitive damages)
Original Opinion Handed Down August 29, 2008:
Columbia Medical Center of Los Colinas v. Hogue, No. 04-0575 (Tex. Aug. 29, 2008) (Wainwright) (HCLC, medical malpractice, damages for gross negligence by hospital affirmed, contributory negligence, loss of inheritance damages, prejudgment interest, construction of the phrase "subject to appeal")
HOLDING: There is sufficient evidence to support the jury’s conclusion that Columbia Medical acted with conscious indifference to an extreme risk of serious injury when it (1) elected to outsource echo services without a guaranteed response time while providing emergency services, (2) failed to communicate this limitation to its medical staff so they could consider other options to treat critical care patients, and (3) delayed obtaining the echo in spite of the serious risk to Hogue’s health.We hold that there was insufficient evidence to support the jury’s award of loss of inheritance damages.
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 opposed trifurcation of trial and delivered a concurring opinion, in which Justice Medina joined.
Justice Green would reverse gross negligence damages against hospital and delivered an opinion concurring in part and dissenting in part, in which Justice Hecht joined.
Columbia Medical Center of Law Colinas, Inc. v. Hogue, (Tex. 2009)
No. 04-0575 (Tex. Jun 17, 2009) (Wainwright) (dissenting from majority's denial of petitioner's motion for clarification of the mandate)
FROM THE DISSENTING OPINION: Our original opinion, issued August 29, 2008, reversed $306,393 awarded as damages to the Hogues for loss of inheritance and affirmed the award of exemplary damages, capped by section 41.008 of the Texas Civil Practice and Remedies Code. 271 S.W.3d at 255, 257. The other amounts awarded as actual damages were not changed. We held that the evidence submitted to the jury was legally insufficient to support an award of damages for loss of inheritance. Id. at 255. However, the loss of inheritance damages had been included as economic damages in the trial court’s judgment to calculate the maximum amount of punitive damages that could be awarded under the applicable statutory cap. See Tex. Civ. Prac. & Rem. Code § 41.008(b). Under chapter 41, punitive damages were capped at (1) two times any amount of economic damages plus (2) an amount equal to any noneconomic damages not exceeding $750,000. Id.2
After the Court issued its opinion and judgment, Columbia Medical filed a motion for rehearing, which was denied January 16, 2009. That same day, we issued the mandate. Thirteen days later Columbia Medical issued a wire transfer to the trust account for the Hogues’ counsel in the amount of $8,906,385.50, which included payment of compensatory damages, punitive damages, and post-judgment interest at a ten percent rate, compounded annually. Columbia Medical’s tender had reduced the amount of damages by properly deducting the loss of inheritance damages from the compensatory damages and adjusting the exemplary damages award accordingly. In other words, Columbia Medical did not include $612,786—two times the amount awarded as loss of inheritance damages—in calculating the exemplary damages cap. The Hogues refused the tender.
* * *
The opinion and judgment are clear: The Hogues are not entitled to loss of inheritance damages, either directly or indirectly through an increase of the exemplary damages cap. By denying this motion, the Court is leaving the parties in a quandary. It is not denying that Columbia Medical’s position on the punitive damages cap is correct (which it undisputably is). If the Hogues continue to press the issue, at best the failure to address the motion to clarify will force Columbia Medical to continue to litigate this dispute, perhaps by filing a new action, having to pay post-judgment interest that continues to accrue, incurring additional attorneys’ fees, and expending time over a matter we settled nearly a year ago. It is possible that this matter will come before the Court again. At worst, the Court’s inaction today could result in a more than $612,000 windfall directly contrary to our opinion.
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) petitioner's motion to clarify mandate denied
Justice Wainwright delivered an opinion, in which Justice Hecht and Justice Brister joined, dissenting to the denial.
LINKS TO PRIOR OPINIONS:
Corrected Opinion Released Jan. 16, 2009:
Columbia Med. Ctr. of Las Colinas, Inc. v. Hogue, No. 04-0575 (Tex. 2009)(substituted corrected opinion) (reh'g denied) (medical malpractice, gross negligence, punitive damages)
Original Opinion Handed Down August 29, 2008:
Columbia Medical Center of Los Colinas v. Hogue, No. 04-0575 (Tex. Aug. 29, 2008) (Wainwright) (HCLC, medical malpractice, damages for gross negligence by hospital affirmed, contributory negligence, loss of inheritance damages, prejudgment interest, construction of the phrase "subject to appeal")
HOLDING: There is sufficient evidence to support the jury’s conclusion that Columbia Medical acted with conscious indifference to an extreme risk of serious injury when it (1) elected to outsource echo services without a guaranteed response time while providing emergency services, (2) failed to communicate this limitation to its medical staff so they could consider other options to treat critical care patients, and (3) delayed obtaining the echo in spite of the serious risk to Hogue’s health.We hold that there was insufficient evidence to support the jury’s award of loss of inheritance damages.
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 opposed trifurcation of trial and delivered a concurring opinion, in which Justice Medina joined.
Justice Green would reverse gross negligence damages against hospital and delivered an opinion concurring in part and dissenting in part, in which Justice Hecht joined.
Saturday, June 13, 2009
FORUM SELECTION CLAUSE ENFORCED BY MANDAMUS: In re International Profit Assoc. Inc. (Tex. 2009)
TEXAS SUPREME COURT GRANTS PETITION FOR MANDAMUS TO ENFORCE CONTRACTUAL FORUM-SELECTION CLAUSE
In re Int'l Profit Associates, Inc. (Tex. 2009)
No. 08-0531 (Tex. Jun. 12, 2009) (per curiam) (mandamus granted to enforce forum selection and choice-of-law clause) (methods to challenge forum selection clauses) (enforceability of forum selection clause) (sufficiency of disclosure of contractual terms)
FROM THE PER CURIAM OPINION:
In a recent case also involving IPA and the enforceability of a forum-selection clause, we explained that, as a general rule, forum-selection clauses are enforceable, and the party challenging the forum-selection clause bears a heavy burden of proof. In re Int’l Profit Assocs., Inc., 274 S.W.3d 672, 675 (Tex. 2009) (citing In re Lyon, 257 S.W.3d at 231–32).
A trial court abuses its discretion in refusing to enforce the forum-selection clause, unless the party opposing enforcement of the clause can clearly show that: (1) enforcement would be unreasonable or unjust, (2) the clause is invalid for reasons of fraud or overreaching, (3) enforcement would contravene a strong public policy of the forum where the suit was brought, or (4) the selected forum would be seriously inconvenient for trial. Id. Applying this standard to the present case, we conclude that the trial court clearly abused its discretion by placing the burden of proof on IPA to demonstrate that it showed the forum-selection clause to Riddell.
* * *
[T]he party challenging a forum-selection clause has the burden of proving the clause is invalid, and the party seeking to enforce the forum-selection clause is not obligated to prove that it specifically showed the clause to the opposing party as a condition of enforcement. Because the trial court placed the burden of proof on IPA and required the company to prove that it showed the forum-selection clause to Riddell, it clearly abused its discretion in denying IPA’s motion to dismiss. Accordingly, we conditionally grant mandamus relief and direct the trial court to vacate its order denying IPA’s motion to dismiss and enter an order granting the motion.
IN RE INTERNATIONAL PROFIT ASSOCIATES, INC., INTEGRATED BUSINESS ANALYSIS, INC., ACCOUNTANCY ASSOCIATES, LLC., INTERNATIONAL TAX ADVISORS, INC., AND HUEY MITCHELL, JR.; from Dallas County; 5th district (05-08-00809-CV, ___ SW3d ___, 06-30-08)stay order issued March 11, 2009, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.Per Curiam Opinion
Per Curiam Opinion [pdf version of opinion on Supreme Court's website]
RELATED CONCEPTS: ENFORCEABILITY OF CONTRACTS, WAIVERS: conspicuousness requirement, knowing waiver of right to jury trial Jury waiver enforceability of arbitration agreement CONTRACT FORMATION AND ENFORCEABILITY: party has duty to read what he signs
In re Int'l Profit Associates, Inc. (Tex. 2009)
No. 08-0531 (Tex. Jun. 12, 2009) (per curiam) (mandamus granted to enforce forum selection and choice-of-law clause) (methods to challenge forum selection clauses) (enforceability of forum selection clause) (sufficiency of disclosure of contractual terms)
FROM THE PER CURIAM OPINION:
In a recent case also involving IPA and the enforceability of a forum-selection clause, we explained that, as a general rule, forum-selection clauses are enforceable, and the party challenging the forum-selection clause bears a heavy burden of proof. In re Int’l Profit Assocs., Inc., 274 S.W.3d 672, 675 (Tex. 2009) (citing In re Lyon, 257 S.W.3d at 231–32).
A trial court abuses its discretion in refusing to enforce the forum-selection clause, unless the party opposing enforcement of the clause can clearly show that: (1) enforcement would be unreasonable or unjust, (2) the clause is invalid for reasons of fraud or overreaching, (3) enforcement would contravene a strong public policy of the forum where the suit was brought, or (4) the selected forum would be seriously inconvenient for trial. Id. Applying this standard to the present case, we conclude that the trial court clearly abused its discretion by placing the burden of proof on IPA to demonstrate that it showed the forum-selection clause to Riddell.
* * *
[T]he party challenging a forum-selection clause has the burden of proving the clause is invalid, and the party seeking to enforce the forum-selection clause is not obligated to prove that it specifically showed the clause to the opposing party as a condition of enforcement. Because the trial court placed the burden of proof on IPA and required the company to prove that it showed the forum-selection clause to Riddell, it clearly abused its discretion in denying IPA’s motion to dismiss. Accordingly, we conditionally grant mandamus relief and direct the trial court to vacate its order denying IPA’s motion to dismiss and enter an order granting the motion.
IN RE INTERNATIONAL PROFIT ASSOCIATES, INC., INTEGRATED BUSINESS ANALYSIS, INC., ACCOUNTANCY ASSOCIATES, LLC., INTERNATIONAL TAX ADVISORS, INC., AND HUEY MITCHELL, JR.; from Dallas County; 5th district (05-08-00809-CV, ___ SW3d ___, 06-30-08)stay order issued March 11, 2009, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.Per Curiam Opinion
Per Curiam Opinion [pdf version of opinion on Supreme Court's website]
RELATED CONCEPTS: ENFORCEABILITY OF CONTRACTS, WAIVERS: conspicuousness requirement, knowing waiver of right to jury trial Jury waiver enforceability of arbitration agreement CONTRACT FORMATION AND ENFORCEABILITY: party has duty to read what he signs
Saturday, June 6, 2009
Trustee-Removal Anytime - No Limitations Bar
UNLIKE CAUSE OF ACTION FOR BREACH OF FIDUCIARY DUTY, SUIT TO REMOVE TRUSTEE NOT GOVERNED BY 4-YEAR STATUTE OF LIMITATIONS, TEXAS HIGH COURT SAYS.
Ditta v. Conte, No. 07-1026 (Tex. Jun. 5, 2009) (Willett) (statute of limitations does not apply to suit to remove trustee; but suit for breach of fiduciary duty is subject to four-year SoL)
FROM THE OPINION BY JUSTICE DON R. WILLET:
The court of appeals held that this trustee-removal suit was barred by the four-year statute of limitations applicable to breach-of-fiduciary-duty suits. We disagree and hold that no statutory limitations period restricts a court’s discretion to remove a trustee. A limitations period, while applicable to suits seeking damages for breach of fiduciary duty, has no place in suits that seek removal rather than recovery. Accordingly, we reverse the court of appeals’ judgment that the case was time-barred and remand to that court for further proceedings.
* * *
Here, the probate court found that Susan, in her role as trustee, committed a breach of trust, and that her role as trustee was compromised due to her indebtedness to the Trust and her tenuous relationship with Joseph Jr. and Doris. These findings indicate that the potential for injury to the Trust would remain as long as Susan continued in her role as trustee; therefore, we hold that Ditta’s claim for Susan’s removal was not time-barred. Unlike Ford, Ditta is not merely attempting to recast a potentially time-barred claim (breach of fiduciary duty) as a claim for equitable relief (removal of Susan as trustee).
The remedy Ditta seeks in this action is removal of Susan as trustee, not monetary or other relief. While removal actions are sometimes premised on a trustee’s prior behavior, they exist to prevent the trustee from engaging in further behavior that could potentially harm the trust. Any prior breaches or conflicts on the part of the trustee indicate that the trustee could repeat her behavior and harm the trust in the future. At the very least, such prior conduct might lead a court to conclude that the special relationship of trust and confidence remains compromised. Like cloud-on-title cases, as long as potential harm to the trust remains, an action to remove the trustee should be allowed to proceed.We therefore hold that a trustee removal action, regardless of the underlying grounds on which it is brought, is not subject to a limitations analysis.[27]
However, limitations periods continue to dictate when claims for fiduciary breaches must be brought. While the four-year limitations period proscribes whether an interested person can obtain monetary recovery from a trustee’s fiduciary breach, it does not affect whether the interested person can seek that trustee’s removal. To hold otherwise would allow trustees who previously harmed the trust relationship to remain in their fiduciary roles, regardless of their past transgressions.
Conclusion
No statute of limitations period applies in a trustee-removal suit.
Trusts are fiduciary relationships, and as such, their nature and character often change throughout the years of administration, as the Trust here did.
Because the court of appeals decided this case on the limitations issue, it did not reach issues relating to the merits of Ditta’s removal action, the reformation of the Trust, or the appointment of Frost Bank as successor trustee. Accordingly, we reverse the court of appeals’ judgment and remand the case to that court for consideration of those issues.
LOUIS M. DITTA, GUARDIAN OF THE ESTATE OF DORIS L. CONTE, AN INCAPACITATED PERSON v. SUSAN C. CONTE AND JOSEPH P. CONTE, JR.; from Harris County; 1st district (01-05-00603-CV, ___ SW3d ___, 08-31-07)motion to strike petitioner's appendix to brief on the merits dismissed as mootThe Court reverses the court of appeals' judgment and remands the case to that court.Justice Willett delivered the opinion of the Court.
Ditta v. Conte, No. 07-1026 (Tex. Jun. 5, 2009) (Willett) (statute of limitations does not apply to suit to remove trustee; but suit for breach of fiduciary duty is subject to four-year SoL)
FROM THE OPINION BY JUSTICE DON R. WILLET:
The court of appeals held that this trustee-removal suit was barred by the four-year statute of limitations applicable to breach-of-fiduciary-duty suits. We disagree and hold that no statutory limitations period restricts a court’s discretion to remove a trustee. A limitations period, while applicable to suits seeking damages for breach of fiduciary duty, has no place in suits that seek removal rather than recovery. Accordingly, we reverse the court of appeals’ judgment that the case was time-barred and remand to that court for further proceedings.
* * *
Here, the probate court found that Susan, in her role as trustee, committed a breach of trust, and that her role as trustee was compromised due to her indebtedness to the Trust and her tenuous relationship with Joseph Jr. and Doris. These findings indicate that the potential for injury to the Trust would remain as long as Susan continued in her role as trustee; therefore, we hold that Ditta’s claim for Susan’s removal was not time-barred. Unlike Ford, Ditta is not merely attempting to recast a potentially time-barred claim (breach of fiduciary duty) as a claim for equitable relief (removal of Susan as trustee).
The remedy Ditta seeks in this action is removal of Susan as trustee, not monetary or other relief. While removal actions are sometimes premised on a trustee’s prior behavior, they exist to prevent the trustee from engaging in further behavior that could potentially harm the trust. Any prior breaches or conflicts on the part of the trustee indicate that the trustee could repeat her behavior and harm the trust in the future. At the very least, such prior conduct might lead a court to conclude that the special relationship of trust and confidence remains compromised. Like cloud-on-title cases, as long as potential harm to the trust remains, an action to remove the trustee should be allowed to proceed.We therefore hold that a trustee removal action, regardless of the underlying grounds on which it is brought, is not subject to a limitations analysis.[27]
However, limitations periods continue to dictate when claims for fiduciary breaches must be brought. While the four-year limitations period proscribes whether an interested person can obtain monetary recovery from a trustee’s fiduciary breach, it does not affect whether the interested person can seek that trustee’s removal. To hold otherwise would allow trustees who previously harmed the trust relationship to remain in their fiduciary roles, regardless of their past transgressions.
Conclusion
No statute of limitations period applies in a trustee-removal suit.
Trusts are fiduciary relationships, and as such, their nature and character often change throughout the years of administration, as the Trust here did.
Because the court of appeals decided this case on the limitations issue, it did not reach issues relating to the merits of Ditta’s removal action, the reformation of the Trust, or the appointment of Frost Bank as successor trustee. Accordingly, we reverse the court of appeals’ judgment and remand the case to that court for consideration of those issues.
LOUIS M. DITTA, GUARDIAN OF THE ESTATE OF DORIS L. CONTE, AN INCAPACITATED PERSON v. SUSAN C. CONTE AND JOSEPH P. CONTE, JR.; from Harris County; 1st district (01-05-00603-CV, ___ SW3d ___, 08-31-07)motion to strike petitioner's appendix to brief on the merits dismissed as mootThe Court reverses the court of appeals' judgment and remands the case to that court.Justice Willett delivered the opinion of the Court.
June 2009 Texas Supreme Court Decisions
June 26, 2009 - Supreme Court Hands Down Bevy of Opinions
COURT FINDS VAGUENESS IN CURRENT LAW AND SPLITS ON EFFECTIVE DATE OF APPELLATE DECISION
Edwards Aquifer Authority v. Chemical Lime, Ltd. (Tex. 2009),
No. 06-0911 (Tex. Jun. 26, 2009)(Hecht) (administrative law, water law, attorney's fees under the UDJA aka DJA)
EDWARDS AQUIFER AUTHORITY, ET AL. v. CHEMICAL LIME, LTD.; from Comal County; 3rd district(03-04-00379-CV, 212 SW3d 683, 09-14-06) (op. on 2nd motion for rehearing in the court below) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Hecht delivered the opinion of the Court, [pdf 22 pgs], in which Chief Justice Jefferson, Justice O’Neill, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, Justice Johnson and Justice Willett joined. [pdf]
Justice Brister delivered a concurring opinion. [pdf]
Justice Willett delivered a concurring opinion. [pdf]
See Electronic Briefs in Edwards Aquifer Authority v. Chemical Lime, Ltd. (Tex. 2009)
ANOTHER WHISTLEBLOWER BITES THE DUST AT THE SUPREME COURT - Court takes the position that Plaintiff did not qualify as a whistleblower under the statute
State of Texas and TxDoT v. Lueck (Tex. 2009) ,
No. 06-1034 (Tex. Jun. 26, 2009)(Green) (Whistleblower Act claim dismissed) (allegation of regulatory noncompliance insufficient, report not to proper law-enforcement agency)
THE STATE OF TEXAS AND THE TEXAS DEPARTMENT OF TRANSPORTATION v. GEORGE LUECK; from Travis County; 3rd district (03-05-00510-CV, 212 SW3d 630, 08-16-06) motion to dismiss denied The Court reverses the court of appeals' judgment and dismisses the case for lack of jurisdiction. Justice Green delivered the opinion of the Court. [pdf 16 pgs.] Link to Electronic Briefs in State of Texas and TxDoT v. Lueck (Tex 2009)
MOTOR VEHICLE ACCIDENTS: DOES THE STATUTE OF LIMITATIONS RUN WHILE DRIVER WHO CAUSED ACCIDENT IN TEXAS IS OUT OF STATE?
Ashley v. Hawkins (Tex. 2009) ,
No. 07-0572 (Tex. Jun. 26, 2009)(Green) (statute of limitations, no tolling when car wreck defendant is out of state, but subject to being served there) (lack of diligence in securing promt service of citation on defendant amendable to process in another state).
GAIL ASHLEY v. DORIS D. HAWKINS; from Montgomery County; 9th district (09-06-00359-CV, ___ SW3d ___, [opinion in the Beaumont court of appeals] 06-07-07) The Court reverses the court of appeals' judgment and reinstates the trial court's judgment. Justice Green delivered the opinion of the Court. [pdf 10 pgs.] View Electronic Briefs in ASHLEY v. HAWKINS (Tex. 2009)
PROBATE: UNDER WHAT CIRCUMSTANCES CAN THE EXECUTOR SUE THE ATTORNEY OF THE DECEASED?
Smith v. O'DonnelL (Tex. 2009),
No. 07-0697 (Tex. Jun. 26, 2009) (O'Neill) (PROBATE LAW: legal malpractice suit by executor of estate against decedent's attorney, non-estate planning) PAUL H. SMITH, ET AL. v. THOMAS O'DONNELL, EXECUTOR OF THE ESTATE OF CORWIN DENNEY; from Bexar County; 4th district (04-04-00108-CV, 234 SW3d 135, 07-25-07) 2 petitions. The Court affirms the court of appeals' judgment. Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Brister, Justice Medina, and Justice Johnson joined. [pdf - 11 pgs]
Justice Willett delivered a dissenting opinion, in which Justice Wainwright joined. [pdf] (Justice Hecht and Justice Green not sitting) Go to Electronic Briefs in Smith v. O'Donnell (Tex. 2009)
PROBATE: RIGHT TO SURVIVORSHIP WITH RESPECT TO ASSETS/ACCOUNTS BETWEEN SPOUSES
Holmes v. Beatty (Tex. 2009), No. 07-0784 (Tex. Jun. 26, 2009)(Jefferson)(probate law, right to survivorship accounts, community property survivorship agreement)
HARRY HOLMES, II, INDEPENDENT EXECUTOR OF THE ESTATE OF THOMAS J. HOLMES, SR., DECEASED AND AS TRUSTEE OF ANY TRUST NAMED AS A LEGATEE IN THE WILL OF THOMAS J. HOLMES, SR., DECEASED v. DOUGLAS G. BEATTY, INDEPENDENT EXECUTOR OF THE ESTATE OF KATHRYN V. HOLMES, DECEASED; from Harris County; 14th district (14-03-00663-CV, 233 SW3d 475, 08-14-07) Electronic briefs in Holmes v. Beatty No. 07-0784 (Tex. 2009)
consolidated with
Holmes v. Beatty (htm), No. 07-0785 (Tex. Jun. 26, 2009)(Jefferson) (nontestamentary transfer of assets between spouses, right to survivorship accounts) HARRY HOLMES, II, INDEPENDENT EXECUTOR OF THE ESTATE OF THOMAS J. HOLMES, SR., DECEASED AND AS TRUSTEE OF ANY TRUST NAMED AS A LEGATEE IN THE WILL OF THOMAS J. HOLMES, SR., DECEASED v. DOUGLAS G. BEATTY, INDEPENDENT EXECUTOR OF THE ESTATE OF KATHRYN V. HOLMES, DECEASED; from Harris County; 14th district (14-05-00474-CV, 233 SW3d 494, 08-14-07) 2 petitions. The Court reverses and renders in part and affirms in part the court of appeals' judgment. Chief Justice Jefferson delivered the opinion of the Court. [pdf 19 pgs] Click through to Electronic Briefs for 07-0785
DIFFERENCE BETWEEN STATUTE OF REPOSE AND LIMITATIONS EXPLAINED - WORKS FOR DEFENDANT
Galbraith Engineering Consultants, Inc. v. Pochucha (Tex. 2009),
No. 07-1051 (Tex. Jun. 26, 2009)(Medina) (claim based on construction defect causing water damage barred by statute of repose) (statute of repose vs. statute of limitations)
GALBRAITH ENGINEERING CONSULTANTS, INC. v. SAM POCHUCHA AND JEAN POCHUCHA; from Bexar County; 4th district (04-07-00119-CV, 243 SW3d 138, 09-12-07)motion for leave to file response to post submission brief grantedThe Court reverses the court of appeals' judgment and renders judgment.Justice Medina delivered the opinion of the Court. [pdf 11pgs] Read Electronic Briefs in GILBRAITH ENGINEERING CONSULTANTS, INC. v. POCHUCHA (Tex. 2009)
STATE'S CONDEMNATION DAMAGES EXPERT SHOULD NOT HAVE BEEN STRUCK, TEXAS SUPREME COURT SAYS
State of Texas v. Central Expressway Sign Ass'n (Tex. 2009),
No. 08-0061 (Tex. Jun. 26, 2009)(O'Neill) (admissibility of expert testimony, methods of appraising value of condemned property, here billboard easement)(exclusion of expert witness testimony was erroneous and harmful, judgment reversed)
THE STATE OF TEXAS v. CENTRAL EXPRESSWAY SIGN ASSOCIATES, ET AL.; from Dallas County; 5th district (05-06-00003-CV, 238 SW3d 800, 08-31-07) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice O'Neill delivered the opinion of the Court. [pdf] View E-Briefs in THE STATE OF TEXAS v. CENTRAL EXPRESSWAY SIGN ASSOCIATES (Tex. 2009)
EMPLOYEE MUST ARBITRATE EVEN THOUGH DEFENDANT EMPLOYER NOT SPECIFICALLY IDENTIFIED IN ARB AGREEMENT
In Re Macy's Texas, Inc (Tex. 2009).,
No. 08-0584 (Tex. Jun. 26, 2009)(per curiam)(arbitration mandamus granted in employment dispute, injury at work claim)(conclusory affidavit) IN RE MACY'S TEXAS, INC.; from Bexar County; 4th district (04-08-00469-CV, ___ SW3d ___, [per curiam opinion of the San Antonio Court of Appeals denying mandamus relief] 07-23-08) stay order issued October 10, 2008, liftedPursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion [pdf] View Electronic Briefs in IN RE MACY'S TEXAS, INC. (Tex. 2009)
HOW MANY MEMBERS OF THE PUBLIC ARE ENOUGH FOR AN ATTORNEY DISCIPLINARY PANEL?
In the Matter of Allison (Tex. 2009),
No. 08-0705 (Tex. Jun. 26, 2009)(Jefferson)(attorney disciplinary appeal, dispute about minimum level of public's representation on panel, rounding up or down)
IN THE MATTER OF BOMA O. ALLISON The Court affirms the Board of Disciplinary Appeals' judgment.Chief Justice Jefferson delivered the opinion of the Court. [pdf] View Electronic Briefs in ALLISON v. COMMISSION FOR LAWYER DISCIPLINE (Tex. 2009)
The Supreme's June 19, 2009 Releases:
Barr v. City of Sinton, No. 06-0074 (Tex. Jun. 19, 2009) (Hecht)
(Texas Religious Freedom Restoration Act (TRFRA) applied in local zoning dispute involving religious half-house for released prisoners)(NIMBY litigation with faith component)
PASTOR RICK BARR AND PHILEMON HOMES, INC. v. CITY OF SINTON; from San Patricio County; 13th district (13-03-00727-CV, ___ SW3d ___, 11-23-05) motion to take judicial notice granted. The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Hecht delivered the opinion of the Court.
ANOTHER NO-DUTY ABSOLUTION (FOR EMPLOYER WHO REQUIRED 12 HOUR SHIFTS - FATIGUED WORKER CAUSE WRECK AFTER GETTING OFF WORK)
Nabors Drilling, USA, Inc. v. Escoto,
No. 06-0890 (Tex. Jun. 19, 2009)(Green) (employer found to have no duty / liability for deaths in head-on collision caused by fatigued employee after 12 hour shift) NABORS DRILLING, U.S.A., INC. v. FRANCISCA ESCOTO, ET AL.; from Willacy County; 13th district(13-02-00171-CV, 200 SW3d 716, 06-08-06) The Court reverses the court of appeals' judgment and reinstates the trial court's judgment. Justice Green delivered the opinion of the Court.
POLICE OFFICER GETS SECOND CHANCE TO (S)ELECT GRIEVANCE PROCESS UPON REMAND
City of Desoto, Tx v. White,
No. 07-1031(Tex. Jun. 19, 2009)(Green) (public employment, police officers, disciplinary process, election of grievance remedies, city's failure to give pre-appeal notice not jurisdictional)
CITY OF DESOTO, TEXAS v. JUSTIN WHITE; from Dallas County; 5th district (05-06-01469-CV, 232 SW3d 379, 08-28-07). The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Green delivered the opinion of the Court.
A RARE BIRD IN THE UPPER ECHELONS OF THE COURT SYSTEM:
SUPREME COURT OPINION IN DISPUTE OVER MANDATE ISSUED IN EARLIER APPEAL, WHICH YIELDED TWO OPINIONS
Columbia Med. Ctr. v. Hogue III:
THE MOTION IN THE FOLLOWING CAUSE IS DENIED:
Columbia Medical Center of Law Colinas, Inc. v. Hogue,
No. 04-0575 (Tex. Jun 17, 2009)(Wainwright) 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) petitioner's motion to clarify mandate denied Justice Wainwright delivered an opinion, in which Justice Hecht and Justice Brister joined, dissenting to the denial.
June 12 , 2009 Opinions
JUVENILE NOT ENTITLED TO FREE LAWYER FOR HABEAS PETITION ONCE HE TURNS AN ADULT (ALTHOUGH SERVING SENTENCE ("Detention") IMPOSED AS JUVENILE UNDER JUVENILE JUSTICE CODE)
In re Hall, (Tex. 2009)
No. 07-0322 (Tex, Jun. 12, 2009) (Medina) (juvenile justice, habeas corpus, access to justice, free appointed counsel, status as juvenile vs. adult, transfer to state jail for adults, statutory construction)
IN RE JAMES ALLEN HALL; from Bexar County; 4th district (04-07-00050-CV, ___ SW3d ___, 02-14-07) The petition for writ of mandamus is denied. Justice Medina delivered the opinion of the Court.
SUPREME COURT GRANTS MANDAMUS TO ENFORCE FORUM SELECTION (AND CHOICE-OF-LAW) CLAUSE
In re International Profit Associates, Inc. (Tex. 2009) (per curiam)
No. 08-0531 (Tex. Jun. 12, 2009)(per curiam) (mandamus to enforce forum selection clause choice of law clause granted)(who has evidentiary burden in dispute over forum selection clause, where dispute should be litigated?)
IN RE INTERNATIONAL PROFIT ASSOCIATES, INC., INTEGRATED BUSINESS ANALYSIS, INC., ACCOUNTANCY ASSOCIATES, LLC., INTERNATIONAL TAX ADVISORS, INC., AND HUEY MITCHELL, JR.; from Dallas County; 5th district (05-08-00809-CV, ___ SW3d ___, 06-30-08) stay order issued March 11, 2009, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.Per Curiam Opinion [pdf]
June 5, 2009 Orders
This week's batch of opinions brings more of the usual - reversal of jury judgment against hospital (on erroneous instruction grounds this time), mandamus relief in favor of health care provider in discovery dispute, finding of "no defect" in products liability case involving another injured truck driver - but also a significant ruling on a core issue in civil procedure:
Is a non-answering defendant entitled to service with a new citation when the plaintiff files an amended pleading seeking greater relief than in the original petition?
The Chief answers - but not with the unanimous consent of the court - that service pursuant to TRCP 21a - i.e, by certified mail or fax - is sufficient. Justice Brister would continue to afford greater procedural protection to defendants and writes separately to express his displeasure with the majority, with Wainwright and Willett in tow. - The issue usually arises when a default judgment is challenged, here in a SAPCR modification case, but the effect of the Supreme Court's ruling is much more far-reachiing.
On the issues-of-first-impression front (or shall we say in the legislating-from-the-bench department) the Court on Friday announced that the removal of a trustee is not governed by any statute of limitations, such as the four-year statute of limitations applicable to breach of fiduciary duty, because - among other rationales - no money damages are being sought for a tort, and evolving circumstances may warrant the grant of equitable relief to oust a wayward trustee caught stuffing his or her own pockets with trust assets at any time. (Needless to say, the Supremes did not quite put it that way). I don't mean to say that it is improper for the Supremes to perform this role as policymakers. What is improper - and hypocritical - is to claim and pretend that it ain't happening, - that "legislating" from the bench isn't a core function of the upper echelons of the judicial branch. If it weren't so, Westlaw and Lexis-Nexis would be out of business
JURY INSTRUCTION ERROR FOUND ON ISSUE OF DOC AS INDEPENDENT CONTRACTOR
Columbia Rio Grande Healthcare, LP v. Hawley, (Tex. 2009)
No. 06-0372 (Tex. Jun. 5, 2009)(Johnson) (HCLC, med-mal suit against hospital, physician as independent contractor, lost chance of survival, jury instructions error as grounds for reversal and new trial)(trial court found to have erred in refusing jury instructions; retrial ordered on remand) COLUMBIA RIO GRANDE HEALTHCARE, L.P. D/B/A RIO GRANDE REGIONAL HOSPITAL v. ALICE H. HAWLEY AND JAMES A. HAWLEY; from Hidalgo County; 13th district (13-03-00427-CV, 188 SW3d 838, 03-23-06) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Phil Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Brister, Justice Green, and Justice Willett joined, and in all but Part II-D 2 of which Justice O'Neill and Justice Medina joined.
DISCOVERY MANDAMUS GRANTED TO VACATE PROTECTIVE ORDER IN MED-MAL SUIT
In re Lester Collins, MD, (Tex 2009)
No. 07-0737 (Tex. Jun. 5, 2009) (O'Neill)(discovery mandamus, protective order lifted covering ex parte contacts with witnesses in med-mal case, medical privacy, HIPAA) IN RE LESTER COLLINS, M.D.; from Smith County; 12th district(12-06-00078-CV, 224 SW3d 798, 05-14-07) The Court conditionally grants the petition for writ of mandamus. Justice Harriet O'Neill delivered the opinion of the Court.
NO DUE PROCESS VIOLATION FOUND IN GARNISHMENT OF INMATE TRUST ACCOUNT TO PAY COURT COSTS
Harrell v. State of Texas, (Tex. 2009)
No. 07-0806 (Tex. Jun. 5, 2009) (Willett)(whether order to prison officials to siphon money from inmate trust account to pay courts costs incurred in underlying criminal case is a civil or a criminal matter; what due process prisoner is entitled to). WALTER E. HARRELL v. THE STATE OF TEXAS; from Terry County; 7th district (07-06-00469-CR&07-06-00470-CR, ___ SW3d ___, 08-13-07) The Court reverses the court of appeals' judgment dismissing the case for want of jurisdiction and renders judgment affirming the trial court's order.
Justice Don R. Willett delivered the opinion of the Court.
SUIT TO REMOVE TRUSTEE NOT LIMITED BY STATUTE OF LIMITATIONS
Ditta v. Conte, (Tex. 2009)
No. 07-1026 (Tex. Jun. 5, 2009) (Willett) (removal of trustee, statute of limitations does not apply, trustee may be removed at any time, but suit seeking money damages for breach of fiduciary duty governed by four-year SoL)
LOUIS M. DITTA, GUARDIAN OF THE ESTATE OF DORIS L. CONTE, AN INCAPACITATED PERSON v. SUSAN C. CONTE AND JOSEPH P. CONTE, JR.; from Harris County; 1st district (01-05-00603-CV, ___ SW3d ___, 08-31-07) motion to strike petitioner's appendix to brief on the merits dismissed as mootThe Court reverses the court of appeals' judgment and remands the case to that court. Justice Willett delivered the opinion of the Court.
SUPREME COURT DISAGREES WITH COURT OF APPEALS - NO PRODUCT LIABILITY
Timpte Industries, Inc. v. Gish, (Tex. 2009)
No. 08-0043 (Jun. 5, 2009) (Medina)(product liability, Supreme Court finds no defect in design of trailer from which worker fell) TIMPTE INDUSTRIES, INC. AND TIMPTE INC. v. ROBERT GISH AND PINNACOL ASSURANCE; from Hale County; 7th district (07-06-00215-CV, ___ SW3d ___, 11-30-07) The Court reverses the court of appeals' judgment and renders judgment. Justice David Medina delivered the opinion of the Court.
SUFFICIENCY OF SERVICE UNDER RULE 21A OF AMENDED PLEADING ON DEFENDANT WHO HAS NOT ANSWERED
In the Interest of E.A., (Tex. 2009)
No. 08-0157 (Tex. Jun. 5, 2009)(Jefferson)(method of service of amended petition, sufficiency of service by certified mail under rule 21a when Defendant has been served with civil process, but has not filed an answer or made appearance) (SAPCR child custody modification proceeding) IN THE INTEREST OF E.A. AND D.A., CHILDREN; from Wichita County; 2nd district (02-07-00215-CV, ___ SW3d ___, 12-06-07) 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. Chief Justice Jefferson delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice Medina, Justice Green, and Justice Johnson joined.
Justice Scott A. Brister delivered a concurring opinion, in which Justice Wainwright and Justice Willett joined. (default judgment not to be based on amended petition seeking more onerous relief against nonanswering defendant if not served with new citation)
COURT FINDS VAGUENESS IN CURRENT LAW AND SPLITS ON EFFECTIVE DATE OF APPELLATE DECISION
Edwards Aquifer Authority v. Chemical Lime, Ltd. (Tex. 2009),
No. 06-0911 (Tex. Jun. 26, 2009)(Hecht) (administrative law, water law, attorney's fees under the UDJA aka DJA)
EDWARDS AQUIFER AUTHORITY, ET AL. v. CHEMICAL LIME, LTD.; from Comal County; 3rd district(03-04-00379-CV, 212 SW3d 683, 09-14-06) (op. on 2nd motion for rehearing in the court below) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Hecht delivered the opinion of the Court, [pdf 22 pgs], in which Chief Justice Jefferson, Justice O’Neill, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, Justice Johnson and Justice Willett joined. [pdf]
Justice Brister delivered a concurring opinion. [pdf]
Justice Willett delivered a concurring opinion. [pdf]
See Electronic Briefs in Edwards Aquifer Authority v. Chemical Lime, Ltd. (Tex. 2009)
ANOTHER WHISTLEBLOWER BITES THE DUST AT THE SUPREME COURT - Court takes the position that Plaintiff did not qualify as a whistleblower under the statute
State of Texas and TxDoT v. Lueck (Tex. 2009) ,
No. 06-1034 (Tex. Jun. 26, 2009)(Green) (Whistleblower Act claim dismissed) (allegation of regulatory noncompliance insufficient, report not to proper law-enforcement agency)
THE STATE OF TEXAS AND THE TEXAS DEPARTMENT OF TRANSPORTATION v. GEORGE LUECK; from Travis County; 3rd district (03-05-00510-CV, 212 SW3d 630, 08-16-06) motion to dismiss denied The Court reverses the court of appeals' judgment and dismisses the case for lack of jurisdiction. Justice Green delivered the opinion of the Court. [pdf 16 pgs.] Link to Electronic Briefs in State of Texas and TxDoT v. Lueck (Tex 2009)
MOTOR VEHICLE ACCIDENTS: DOES THE STATUTE OF LIMITATIONS RUN WHILE DRIVER WHO CAUSED ACCIDENT IN TEXAS IS OUT OF STATE?
Ashley v. Hawkins (Tex. 2009) ,
No. 07-0572 (Tex. Jun. 26, 2009)(Green) (statute of limitations, no tolling when car wreck defendant is out of state, but subject to being served there) (lack of diligence in securing promt service of citation on defendant amendable to process in another state).
GAIL ASHLEY v. DORIS D. HAWKINS; from Montgomery County; 9th district (09-06-00359-CV, ___ SW3d ___, [opinion in the Beaumont court of appeals] 06-07-07) The Court reverses the court of appeals' judgment and reinstates the trial court's judgment. Justice Green delivered the opinion of the Court. [pdf 10 pgs.] View Electronic Briefs in ASHLEY v. HAWKINS (Tex. 2009)
PROBATE: UNDER WHAT CIRCUMSTANCES CAN THE EXECUTOR SUE THE ATTORNEY OF THE DECEASED?
Smith v. O'DonnelL (Tex. 2009),
No. 07-0697 (Tex. Jun. 26, 2009) (O'Neill) (PROBATE LAW: legal malpractice suit by executor of estate against decedent's attorney, non-estate planning) PAUL H. SMITH, ET AL. v. THOMAS O'DONNELL, EXECUTOR OF THE ESTATE OF CORWIN DENNEY; from Bexar County; 4th district (04-04-00108-CV, 234 SW3d 135, 07-25-07) 2 petitions. The Court affirms the court of appeals' judgment. Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Brister, Justice Medina, and Justice Johnson joined. [pdf - 11 pgs]
Justice Willett delivered a dissenting opinion, in which Justice Wainwright joined. [pdf] (Justice Hecht and Justice Green not sitting) Go to Electronic Briefs in Smith v. O'Donnell (Tex. 2009)
PROBATE: RIGHT TO SURVIVORSHIP WITH RESPECT TO ASSETS/ACCOUNTS BETWEEN SPOUSES
Holmes v. Beatty (Tex. 2009), No. 07-0784 (Tex. Jun. 26, 2009)(Jefferson)(probate law, right to survivorship accounts, community property survivorship agreement)
HARRY HOLMES, II, INDEPENDENT EXECUTOR OF THE ESTATE OF THOMAS J. HOLMES, SR., DECEASED AND AS TRUSTEE OF ANY TRUST NAMED AS A LEGATEE IN THE WILL OF THOMAS J. HOLMES, SR., DECEASED v. DOUGLAS G. BEATTY, INDEPENDENT EXECUTOR OF THE ESTATE OF KATHRYN V. HOLMES, DECEASED; from Harris County; 14th district (14-03-00663-CV, 233 SW3d 475, 08-14-07) Electronic briefs in Holmes v. Beatty No. 07-0784 (Tex. 2009)
consolidated with
Holmes v. Beatty (htm), No. 07-0785 (Tex. Jun. 26, 2009)(Jefferson) (nontestamentary transfer of assets between spouses, right to survivorship accounts) HARRY HOLMES, II, INDEPENDENT EXECUTOR OF THE ESTATE OF THOMAS J. HOLMES, SR., DECEASED AND AS TRUSTEE OF ANY TRUST NAMED AS A LEGATEE IN THE WILL OF THOMAS J. HOLMES, SR., DECEASED v. DOUGLAS G. BEATTY, INDEPENDENT EXECUTOR OF THE ESTATE OF KATHRYN V. HOLMES, DECEASED; from Harris County; 14th district (14-05-00474-CV, 233 SW3d 494, 08-14-07) 2 petitions. The Court reverses and renders in part and affirms in part the court of appeals' judgment. Chief Justice Jefferson delivered the opinion of the Court. [pdf 19 pgs] Click through to Electronic Briefs for 07-0785
DIFFERENCE BETWEEN STATUTE OF REPOSE AND LIMITATIONS EXPLAINED - WORKS FOR DEFENDANT
Galbraith Engineering Consultants, Inc. v. Pochucha (Tex. 2009),
No. 07-1051 (Tex. Jun. 26, 2009)(Medina) (claim based on construction defect causing water damage barred by statute of repose) (statute of repose vs. statute of limitations)
GALBRAITH ENGINEERING CONSULTANTS, INC. v. SAM POCHUCHA AND JEAN POCHUCHA; from Bexar County; 4th district (04-07-00119-CV, 243 SW3d 138, 09-12-07)motion for leave to file response to post submission brief grantedThe Court reverses the court of appeals' judgment and renders judgment.Justice Medina delivered the opinion of the Court. [pdf 11pgs] Read Electronic Briefs in GILBRAITH ENGINEERING CONSULTANTS, INC. v. POCHUCHA (Tex. 2009)
STATE'S CONDEMNATION DAMAGES EXPERT SHOULD NOT HAVE BEEN STRUCK, TEXAS SUPREME COURT SAYS
State of Texas v. Central Expressway Sign Ass'n (Tex. 2009),
No. 08-0061 (Tex. Jun. 26, 2009)(O'Neill) (admissibility of expert testimony, methods of appraising value of condemned property, here billboard easement)(exclusion of expert witness testimony was erroneous and harmful, judgment reversed)
THE STATE OF TEXAS v. CENTRAL EXPRESSWAY SIGN ASSOCIATES, ET AL.; from Dallas County; 5th district (05-06-00003-CV, 238 SW3d 800, 08-31-07) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice O'Neill delivered the opinion of the Court. [pdf] View E-Briefs in THE STATE OF TEXAS v. CENTRAL EXPRESSWAY SIGN ASSOCIATES (Tex. 2009)
EMPLOYEE MUST ARBITRATE EVEN THOUGH DEFENDANT EMPLOYER NOT SPECIFICALLY IDENTIFIED IN ARB AGREEMENT
In Re Macy's Texas, Inc (Tex. 2009).,
No. 08-0584 (Tex. Jun. 26, 2009)(per curiam)(arbitration mandamus granted in employment dispute, injury at work claim)(conclusory affidavit) IN RE MACY'S TEXAS, INC.; from Bexar County; 4th district (04-08-00469-CV, ___ SW3d ___, [per curiam opinion of the San Antonio Court of Appeals denying mandamus relief] 07-23-08) stay order issued October 10, 2008, liftedPursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion [pdf] View Electronic Briefs in IN RE MACY'S TEXAS, INC. (Tex. 2009)
HOW MANY MEMBERS OF THE PUBLIC ARE ENOUGH FOR AN ATTORNEY DISCIPLINARY PANEL?
In the Matter of Allison (Tex. 2009),
No. 08-0705 (Tex. Jun. 26, 2009)(Jefferson)(attorney disciplinary appeal, dispute about minimum level of public's representation on panel, rounding up or down)
IN THE MATTER OF BOMA O. ALLISON The Court affirms the Board of Disciplinary Appeals' judgment.Chief Justice Jefferson delivered the opinion of the Court. [pdf] View Electronic Briefs in ALLISON v. COMMISSION FOR LAWYER DISCIPLINE (Tex. 2009)
The Supreme's June 19, 2009 Releases:
Barr v. City of Sinton, No. 06-0074 (Tex. Jun. 19, 2009) (Hecht)
(Texas Religious Freedom Restoration Act (TRFRA) applied in local zoning dispute involving religious half-house for released prisoners)(NIMBY litigation with faith component)
PASTOR RICK BARR AND PHILEMON HOMES, INC. v. CITY OF SINTON; from San Patricio County; 13th district (13-03-00727-CV, ___ SW3d ___, 11-23-05) motion to take judicial notice granted. The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Hecht delivered the opinion of the Court.
ANOTHER NO-DUTY ABSOLUTION (FOR EMPLOYER WHO REQUIRED 12 HOUR SHIFTS - FATIGUED WORKER CAUSE WRECK AFTER GETTING OFF WORK)
Nabors Drilling, USA, Inc. v. Escoto,
No. 06-0890 (Tex. Jun. 19, 2009)(Green) (employer found to have no duty / liability for deaths in head-on collision caused by fatigued employee after 12 hour shift) NABORS DRILLING, U.S.A., INC. v. FRANCISCA ESCOTO, ET AL.; from Willacy County; 13th district(13-02-00171-CV, 200 SW3d 716, 06-08-06) The Court reverses the court of appeals' judgment and reinstates the trial court's judgment. Justice Green delivered the opinion of the Court.
POLICE OFFICER GETS SECOND CHANCE TO (S)ELECT GRIEVANCE PROCESS UPON REMAND
City of Desoto, Tx v. White,
No. 07-1031(Tex. Jun. 19, 2009)(Green) (public employment, police officers, disciplinary process, election of grievance remedies, city's failure to give pre-appeal notice not jurisdictional)
CITY OF DESOTO, TEXAS v. JUSTIN WHITE; from Dallas County; 5th district (05-06-01469-CV, 232 SW3d 379, 08-28-07). The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Green delivered the opinion of the Court.
A RARE BIRD IN THE UPPER ECHELONS OF THE COURT SYSTEM:
SUPREME COURT OPINION IN DISPUTE OVER MANDATE ISSUED IN EARLIER APPEAL, WHICH YIELDED TWO OPINIONS
Columbia Med. Ctr. v. Hogue III:
THE MOTION IN THE FOLLOWING CAUSE IS DENIED:
Columbia Medical Center of Law Colinas, Inc. v. Hogue,
No. 04-0575 (Tex. Jun 17, 2009)(Wainwright) 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) petitioner's motion to clarify mandate denied Justice Wainwright delivered an opinion, in which Justice Hecht and Justice Brister joined, dissenting to the denial.
June 12 , 2009 Opinions
JUVENILE NOT ENTITLED TO FREE LAWYER FOR HABEAS PETITION ONCE HE TURNS AN ADULT (ALTHOUGH SERVING SENTENCE ("Detention") IMPOSED AS JUVENILE UNDER JUVENILE JUSTICE CODE)
In re Hall, (Tex. 2009)
No. 07-0322 (Tex, Jun. 12, 2009) (Medina) (juvenile justice, habeas corpus, access to justice, free appointed counsel, status as juvenile vs. adult, transfer to state jail for adults, statutory construction)
IN RE JAMES ALLEN HALL; from Bexar County; 4th district (04-07-00050-CV, ___ SW3d ___, 02-14-07) The petition for writ of mandamus is denied. Justice Medina delivered the opinion of the Court.
SUPREME COURT GRANTS MANDAMUS TO ENFORCE FORUM SELECTION (AND CHOICE-OF-LAW) CLAUSE
In re International Profit Associates, Inc. (Tex. 2009) (per curiam)
No. 08-0531 (Tex. Jun. 12, 2009)(per curiam) (mandamus to enforce forum selection clause choice of law clause granted)(who has evidentiary burden in dispute over forum selection clause, where dispute should be litigated?)
IN RE INTERNATIONAL PROFIT ASSOCIATES, INC., INTEGRATED BUSINESS ANALYSIS, INC., ACCOUNTANCY ASSOCIATES, LLC., INTERNATIONAL TAX ADVISORS, INC., AND HUEY MITCHELL, JR.; from Dallas County; 5th district (05-08-00809-CV, ___ SW3d ___, 06-30-08) stay order issued March 11, 2009, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.Per Curiam Opinion [pdf]
June 5, 2009 Orders
This week's batch of opinions brings more of the usual - reversal of jury judgment against hospital (on erroneous instruction grounds this time), mandamus relief in favor of health care provider in discovery dispute, finding of "no defect" in products liability case involving another injured truck driver - but also a significant ruling on a core issue in civil procedure:
Is a non-answering defendant entitled to service with a new citation when the plaintiff files an amended pleading seeking greater relief than in the original petition?
The Chief answers - but not with the unanimous consent of the court - that service pursuant to TRCP 21a - i.e, by certified mail or fax - is sufficient. Justice Brister would continue to afford greater procedural protection to defendants and writes separately to express his displeasure with the majority, with Wainwright and Willett in tow. - The issue usually arises when a default judgment is challenged, here in a SAPCR modification case, but the effect of the Supreme Court's ruling is much more far-reachiing.
On the issues-of-first-impression front (or shall we say in the legislating-from-the-bench department) the Court on Friday announced that the removal of a trustee is not governed by any statute of limitations, such as the four-year statute of limitations applicable to breach of fiduciary duty, because - among other rationales - no money damages are being sought for a tort, and evolving circumstances may warrant the grant of equitable relief to oust a wayward trustee caught stuffing his or her own pockets with trust assets at any time. (Needless to say, the Supremes did not quite put it that way). I don't mean to say that it is improper for the Supremes to perform this role as policymakers. What is improper - and hypocritical - is to claim and pretend that it ain't happening, - that "legislating" from the bench isn't a core function of the upper echelons of the judicial branch. If it weren't so, Westlaw and Lexis-Nexis would be out of business
JURY INSTRUCTION ERROR FOUND ON ISSUE OF DOC AS INDEPENDENT CONTRACTOR
Columbia Rio Grande Healthcare, LP v. Hawley, (Tex. 2009)
No. 06-0372 (Tex. Jun. 5, 2009)(Johnson) (HCLC, med-mal suit against hospital, physician as independent contractor, lost chance of survival, jury instructions error as grounds for reversal and new trial)(trial court found to have erred in refusing jury instructions; retrial ordered on remand) COLUMBIA RIO GRANDE HEALTHCARE, L.P. D/B/A RIO GRANDE REGIONAL HOSPITAL v. ALICE H. HAWLEY AND JAMES A. HAWLEY; from Hidalgo County; 13th district (13-03-00427-CV, 188 SW3d 838, 03-23-06) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Phil Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Brister, Justice Green, and Justice Willett joined, and in all but Part II-D 2 of which Justice O'Neill and Justice Medina joined.
DISCOVERY MANDAMUS GRANTED TO VACATE PROTECTIVE ORDER IN MED-MAL SUIT
In re Lester Collins, MD, (Tex 2009)
No. 07-0737 (Tex. Jun. 5, 2009) (O'Neill)(discovery mandamus, protective order lifted covering ex parte contacts with witnesses in med-mal case, medical privacy, HIPAA) IN RE LESTER COLLINS, M.D.; from Smith County; 12th district(12-06-00078-CV, 224 SW3d 798, 05-14-07) The Court conditionally grants the petition for writ of mandamus. Justice Harriet O'Neill delivered the opinion of the Court.
NO DUE PROCESS VIOLATION FOUND IN GARNISHMENT OF INMATE TRUST ACCOUNT TO PAY COURT COSTS
Harrell v. State of Texas, (Tex. 2009)
No. 07-0806 (Tex. Jun. 5, 2009) (Willett)(whether order to prison officials to siphon money from inmate trust account to pay courts costs incurred in underlying criminal case is a civil or a criminal matter; what due process prisoner is entitled to). WALTER E. HARRELL v. THE STATE OF TEXAS; from Terry County; 7th district (07-06-00469-CR&07-06-00470-CR, ___ SW3d ___, 08-13-07) The Court reverses the court of appeals' judgment dismissing the case for want of jurisdiction and renders judgment affirming the trial court's order.
Justice Don R. Willett delivered the opinion of the Court.
SUIT TO REMOVE TRUSTEE NOT LIMITED BY STATUTE OF LIMITATIONS
Ditta v. Conte, (Tex. 2009)
No. 07-1026 (Tex. Jun. 5, 2009) (Willett) (removal of trustee, statute of limitations does not apply, trustee may be removed at any time, but suit seeking money damages for breach of fiduciary duty governed by four-year SoL)
LOUIS M. DITTA, GUARDIAN OF THE ESTATE OF DORIS L. CONTE, AN INCAPACITATED PERSON v. SUSAN C. CONTE AND JOSEPH P. CONTE, JR.; from Harris County; 1st district (01-05-00603-CV, ___ SW3d ___, 08-31-07) motion to strike petitioner's appendix to brief on the merits dismissed as mootThe Court reverses the court of appeals' judgment and remands the case to that court. Justice Willett delivered the opinion of the Court.
SUPREME COURT DISAGREES WITH COURT OF APPEALS - NO PRODUCT LIABILITY
Timpte Industries, Inc. v. Gish, (Tex. 2009)
No. 08-0043 (Jun. 5, 2009) (Medina)(product liability, Supreme Court finds no defect in design of trailer from which worker fell) TIMPTE INDUSTRIES, INC. AND TIMPTE INC. v. ROBERT GISH AND PINNACOL ASSURANCE; from Hale County; 7th district (07-06-00215-CV, ___ SW3d ___, 11-30-07) The Court reverses the court of appeals' judgment and renders judgment. Justice David Medina delivered the opinion of the Court.
SUFFICIENCY OF SERVICE UNDER RULE 21A OF AMENDED PLEADING ON DEFENDANT WHO HAS NOT ANSWERED
In the Interest of E.A., (Tex. 2009)
No. 08-0157 (Tex. Jun. 5, 2009)(Jefferson)(method of service of amended petition, sufficiency of service by certified mail under rule 21a when Defendant has been served with civil process, but has not filed an answer or made appearance) (SAPCR child custody modification proceeding) IN THE INTEREST OF E.A. AND D.A., CHILDREN; from Wichita County; 2nd district (02-07-00215-CV, ___ SW3d ___, 12-06-07) 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. Chief Justice Jefferson delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice Medina, Justice Green, and Justice Johnson joined.
Justice Scott A. Brister delivered a concurring opinion, in which Justice Wainwright and Justice Willett joined. (default judgment not to be based on amended petition seeking more onerous relief against nonanswering defendant if not served with new citation)
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