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)