WHISTLEBLOWERS BEWARE: State of Texas and TxDOT v. Lueck (Tex 2009)

Three ways to skin the whistleblower: 1. summary judgment; 2. special exceptions, and now, for good measure, culling tool no. 3: DISMISSAL ON THE PLEADINGS

OPEN SEASON ON WHISTLE BLOWERS

Regulatory Noncompliance Not Illegal, Supreme Court says (at least not when it comes to defeating whistleblower suits brought by terminated public employees)

Lawsuits by public employees in employment-related disputes, such as wrongful termination or discrimination, are usually responded to with motions for summary judgment or with special exceptions if the pleadings are arguably insufficient or otherwise defective. In its recent decision in State of Texas v. Lueck, the Texas Supreme Court approved a third method: Dismissal on the pleadings. Adding to its nearly spotless record of decisions favorable to governmental defendants, the Court gave its seal of approval to dismissal on the pleadings in a wrongful discharge suit brought under the Texas Whistleblower statute by an employee fired by TxDOT. The Act provides a statutory cause of action for public employees retaliated against for reporting illegal activity at work. Finding lack of jurisdiction -- one of the Court's favorite disposal doctrines -- the Court dismisses the whistleblower's suit outright without remand to the lower court. No opportunity to replead necessary.

It would be futile anyway.

For good measure, and although not necessary to kill the lawsuit at hand, the Court held that two necessary elements were not satisfied by the plaintiff's pleadings in this case, and thus warranted jurisdictional dismissal: (1) the recipient of the plaintiff's report of allegedly illegal activity was not a proper law enforcement authority, and (2) the complaint was not really about illegal acts, but merely “regulatory noncompliance,” as if administrative law weren't really law.

Two birds killed with one opinion. Two defenses to whistleblower claims beefed up and stamped with the court's seal of approval, and a new method to swiftly dispatch whistleblower suits without delving into evidence. Three new precedents handed to the defense bar for the price of one (appeal).

The basic thrust of the High Court's whistleblower jurisprudence matches the Court's commitment to quash tort claims against public entity defendants under the Texas Tort Claims Act: Such suits should not be brought in the first place, much less should the plaintiffs claims be vindicated. Plaintiffs claiming whistleblower protection, after all, create inconvenience to government officials and seek to impose liability on governmental defendants, a favored category of litigants at the High Court.

Such suits should be dismissed if at all possible. The earlier the better.

Indeed, the Supreme Court is seeing to it.

This latest installment in the Court's strings of pro-government and anti-employee rulings not only narrows the scope of the legislated immunity waiver effected by the Whistleblower Act, but also approves the summary disposition of whistleblower claims without even the need for a summary judgment motion to test the strength of the evidence.

Under the newly fashioned precedent, a plea to the jurisdiction will do. And lest the Plaintiff amend the pleadings to meet the Court's tightened standards of what constitutes a qualifying claim entailing protection against and a remedy for adverse employment actions, the Court also blesses denial of any opportunity to replead. The claim could not succeed anyhow, the Court opines. The Court no doubt is right. A favorable verdict and judgment for a whistleblower would surely not withstand Supreme Court review, whatever the rationale that might be offered to effect reversal.

But better still if whistleblowers' rants of retaliation do not go to a potentially sympathetic jury in the first instance. Safer to quash a whistleblower suit at its inception, and to deter others brazen enough to invoke the Act. The latest opinion promises to accomplish as much.

WOULD-BE WHISTLEBLOWERS BEWARE!

The Lueck opinion fits in neatly with the Texas Supreme Court's immunity jurisprudence. Immunity theories are indeed an awesome weapon in the arsenal of the defense. No wonder the Court is so fond of them. If immunity is established, the evidence does not matter. The merits become irrelevant. Pesky plaintiffs can be thrown out of the courthouse without much ado, not to mention the inconvenience of a trial to determine whether the allegations in the pleadings are supported by the facts. Judicial resources can thus be preserved. This has been a principal concern of the Court, an interest the Court has shown a deep commitment to vindicate. Time and again. At the expense of the plaintiff's constitutionally guaranteed right to access to the courts.

The court's opinion was authored by Justice Paul Green. Not a single member of the Court dissented. On an earlier occasion, it was the Chief himself who took the lead in weakening whistleblower protections. Jefferson authored the opinion in which the Court gave the nod of approval for petty retaliation by government managers in holding that the punishment complained of in that case fell short of discharge or demotion and did not rise to the level of an actionable adverse employment action under the Whistleblower Act. Montgomery County v. Park, 246 S.46 S.W.3d 610 (Tex. 2007). In that case, the Chief set the tone. Lueck marks a further step to erode the Whistleblower Act, and the notion that it affords a viable remedy, and thus undermines its purpose.

EXCERPTS FROM THE TEXAS SUPREME COURT'S ANTI-WHISTLEBLOWER OPINION IN STATE V. LUECK (TEX. 2009):

Under the Texas Whistleblower Act, sovereign immunity is waived when a public employee alleges a violation of Chapter 554 of the Government Code. TEX. GOV’T CODE § 554.0035. A violation under Chapter 554 occurs when a governmental entity retaliates against a public employee for making a good-faith report of a violation of law to an appropriate law enforcement authority. Id. § 554.002(a). George Lueck was fired from the Texas Department of Transportation (TxDOT) after he sent an e-mail to the director of the Transportation Planning and Programming Division, reporting what he believed to be violations of state and federal law. Lueck then sued the State of Texas and TxDOT under the Whistleblower Act, alleging that he “was fired because of his good faith reports of TxDOT’s violation of state and federal law.”

We hold that, because Lueck’s e-mail report only warned of regulatory non-compliance, not a violation of law, and because an agency supervisor is not an appropriate law enforcement authority to whom a report should be made, Lueck’s allegation affirmatively negates the court’s subject-matter jurisdiction over the cause. The State’s sovereign immunity is not waived, and thus, we reverse the court of appeals’ judgment and dismiss the case for lack of subject-matter jurisdiction.

* * *

TxDOT points to uncontroverted allegations within Lueck’s pleadings, claiming that they affirmatively negate jurisdiction because the e-mail sent to Randall did not report a violation of law to an appropriate law enforcement authority. As for the report element, Lueck’s pleadings affirmatively negate the existence of a reported violation. Lueck’s fifth amended petition states that Lueck “believed and reported in good faith that if the Department did not pursue an immediate and positive resolution to Cooper’s October 29, demand[,] the Department would violate federal and state law by failing to remedy non-compliance with the federal and state reporting requirements.” This allegation merely recites Lueck’s prediction of possible regulatory noncompliance. Such a regulatory non-compliance of this kind does not equate to a violation of law under which a law enforcement authority regulates or enforces within the meaning of the Whistleblower Act. See TEX. GOV’T. CODE § 554.002(b). Further, Lueck attached the e-mail report to his pleadings, and the only discernable violation in the report itself states that TxDOT’s current system for reporting traffic data “is not capable of handling this data and will, therefore, never be in compliance.” This references the violation reported in the 1995 Federal Highway Administration report, which is only intended to call TxDOT’s attention to a previous, publicly-known instance of regulatory non-compliance. At most, this reference to a previous violation of a federal standard expresses disagreement with remedial measures taken by TxDOT after it was already knowingly out of compliance. An internal policy recommendation of this kind is not a report of a violation of law that the Whistleblower Act was designed to protect. Even if this e-mail did report a violation of law, Lueck’s supervisor, Mr. Randall, is not an appropriate law enforcement authority to whom such a report should be made.

* * *

[A]s a matter of law, Lueck’s pleadings affirmatively demonstrate that he did not allege a violation under the Whistleblower Act.3 For these reasons, we reverse the court of appeals’ judgment and dismiss the cause for lack of subject-matter jurisdiction.

CASE STYLE AND DETAILS & LINKS: State of Texas and TxDoT v. Lueck, 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.]
View Electronic Briefs in State of Texas and TxDoT v. Lueck (Tex 2009)

JUDICIAL ESTOPPEL DID NOT BAR PERSONAL INJURY CLAIM

Ferguson v. Building Materials Corp. of America (Tex. 2009)

JUDICIAL ESTOPPEL HELD INAPPLICABLE

In this summary judgment appeal, the Texas Supreme Court holds that the Plaintiffs should not be prevented (estopped) from pursuing a personal injury claim against the Defendant because they had not included their cause of action as an asset in their bankruptcy. The omission appears to have been inadvertent as the Plaintiffs had disclosed the law suit in other bankruptcy court filings. The error was apparently corrected and no prejudice was caused thereby to an adverse party. Nor did the Plaintiffs benefit from the conduct which the Defendant made the basis of its motion for summary judgment on estoppel grounds. The Court accordingly disapproved the trial court's grant of summary judgment based on judicial estoppel, reversed it, and sent the case back to the trial court.

FROM THE PER CURIAM OPINION:

At issue in this appeal is whether the plaintiffs in a personal injury suit should be estopped from pursuing their claim because they initially omitted it as a listed asset in a pending bankruptcy.The court of appeals, in a divided opinion, concluded that the doctrine of judicial estoppel should apply and affirmed the trial court’s dismissal of the plaintiffs’ personal injury claim. 276 S.W.3d 45.

The court of appeals reasoned that the doctrine applied because of the plaintiffs failure to add the personal injury claim as an asset in their bankruptcy proceeding before the personal-injury defendant pointed out the omission and moved for dismissal.

Because we disagree that the doctrine is invoked under the circumstances of this case, we reverse and remand the personal injury claim to the trial court.
* * *
A few months after filing the personal injury suit against Building Materials, the Fergusons filed for bankruptcy, which required them to disclose their income, assets, and liabilities to the bankruptcy court, the bankruptcy trustee, and their creditors. See 11 U.S.C. § 521 (a)(1)(A) & (B)(i),(ii),(iii). To comply with these disclosures, the Fergusons completed several forms, including a Statement of Financial Affairs and a Schedule of Personal Property. The Fergusons disclosed the pending lawsuit in the Statement of Financial Affairs, providing the caption and style of the suit, nature of the claim, cause number, and the court in which it had been filed. The Fergusons, however, failed to include it on their Schedule of Personal Property.
* * *
The Fergusons have neither taken a clearly inconsistent position nor gained an unfair advantage in their bankruptcy proceeding. As the dissenting justice in the court of appeals noted, the Fergusons never attempted to conceal the existence of the personal injury suit. 276 S.W.3d at 54. Rather, the Fergusons listed it on their Statement of Financial Affairs and also disclosed it to the trustee at the creditors meeting, at which time they acknowledged the suit and directed the trustee to contact plaintiffs’ counsel if the trustee needed additional information. And, although the Fergusons omitted it from the bankruptcy plan initially confirmed by the court, when the omission was called to their attention, they amended their bankruptcy plan to include its value and agreed to recalculate the amount owed to the creditors. Thus, even assuming the existence of an inconsistent position, the Fergusons have gained no advantage and more importantly, neither Building Materials in the pending personal injury suit nor the creditors in the bankruptcy have suffered any disadvantage.

The doctrine of judicial estoppel simply does not apply under these circumstances. See Pleasant Glade Assembly of God, 264 S.W.3d at 6-8.We review a grant of summary judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007).

Because the Fergusons have taken neither a clearly inconsistent position nor obtained an unfair advantage, the court of

appeals erred in affirming the dismissal of their personal injury claim under the doctrine of judicial estoppel. We accordingly grant the petition for review and, without hearing oral argument, reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings.

CASE DETAILS AND LINKS TO OPINIONS AND BRIEFS FOR Ferguson v. Building Materials Corp. of America, No. 08-0589 (Tex. Jul. 3, 2009)(per curiam) (judicial estoppel based on failure to list lawsuit as asset in bankruptcy proceeding does not apply; summary judgment granted on the basis of judicial estoppel reversed)
JASON FERGUSON AND BOBBIE FERGUSON v. BUILDING MATERIALS CORPORATION OF AMERICA, CPC LOGISTICS, INC., AND ROBERT JAMES MADDOX; from Dallas County; 8th district (08-07-00051-CV, 276 SW3d 45, 06-12-08 Opinion of the Eight Court of Appeals below)
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 [pdf] Electronic Briefs in Tex. 2009 No. 08-0589 FERGUSON v. BUILDING MATERIALS CORP. OF AM.

New Trial Granted on Defense Verdict: Supremes Find Trial Judges Guilty of Abuse of Discretion (under new rule decreed hereby)

IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, SUBSIDIARY, L.P. D/B/A LAS COLINAS MEDICAL CENTER, ANTONETTE CONNER, AND ANNA MATHEW (TEX. 2009)

EX POST FACTO (CASE) LAW FOR THE OCCASION:

Supreme Court to trial judges: If you follow existing law and grant a new trial in the interests of justice, you may be abusing your discretion. If you did not know, we are telling you now.

Suggestion for bench and bar: Keep in mind how the Supremes would feel about Defendants having a favorable verdict taken from them! And also be nice to the Defense. Don't ask for, and don't grant, default judgment just because the defendant's lawyer went AWOL after the jury was selected.

SUPREME COURT CRACKS DOWN ON JUDGES WHO GRANT NEW TRIALS

Under Texas law, the decision to grant a new trial has long been reserved to the discretion of the trial court judge, who may do so in the interest of justice. No more. Mere justice, without more, will no longer suffice as a reason, after last week's Supreme Court decision in In Re Columbia Medical Center of Las Colinas, No. 06-0416 (Tex. Jul. 3, 2009)(Johnson).

Trial judges must now justify themselves, lest they be found guilty of abuse by higher authority.

UNWITTING ABUSE OF DISCRETION

In this case, and in two others decided the same day, the trial court judge followed established precedent in granting a new trial “in the interest of justice” following jury verdicts favorable to the health care providers (and an asbestos defendant in another case).

What were the Supremes to do to assure the “right” outcome for the favorite constituencies when current law does not permit it? The answer is simple: Change the law.

Existing law gave trial judges much discretion in deciding to grant a new trial after a jury verdict “in the interest of justice” No rule or statute required the trial judge to explain the specific reasons why doing so was necessary. Nor would a request for findings of facts and conclusions of law have been appropriate under such circumstances. After all, this type of order is anything but an order disposing of all claims and parties with a final judgment. For the same reason, the ruling for a new trial could not be appealed. Nor is there a statutory basis for an interlocutory appeal from an order granting a new trial.

But not to worry. Where there is power, there is a way.

Existing precedents favoring plaintiffs? So it be. Who says that precedent cannot be made more favorable when med-mal and asbestos defendants suffer the indignity of having the fruits of a favorable jury verdict taken away from them (a fate the Supremes inflict with regularity on tort Plaintiffs and their lawyers). Who says we can't set new precedent?

And so they did. Five of Nine. And that suffices.

Justice O'Neill, joined by Chief Jefferson, Medina, and Green, dissented in jurisprudential disgust at the majority's disrespect for precedent and bewailed the majority's attack on the integrity of the judges below.

SUPREME LAWMAKERS AT WORK

Acknowledging that the type of order at issue could not immediately be appealed because no statutory authorization existed for interlocutory appellate review, much less by the Supreme Court, the majority - spearheaded by Johnson – invokes its discretionary mandamus powers instead as a basis to intervene in the pending proceedings below. The extraordinary writ is necessary, it reasons, because otherwise the defendants would not have a remedy.

The majority, in effect, finds that the trial judges who had ruled against the defendants in the three cases, had abused their discretion by not including specific reasons in their new trial orders, something they had no obligation to do until the majority established such a duty by fiat last Friday.

The lesson: With us, you can't win. If the law is on your side, we will just change the law. If a rule we would like to use to produce the desired outcome does not exists, we'll just create it. And if the legislature has not provided for us to get immediately involved when defendants are unjustly deprived of the courtroom victory they undoubtedly deserve (by authorizing interlocutory appeal), we'll just expand our mandamus powers to call the trial judge to task, and hold them accountable.

So what is the new standard for articulating a sufficient reason for setting aside a jury verdict and granting a new trial? None. The Supremes keep the trial courts guessing. But the message is clear. If you grant a new trial after the defense has had its way with the jury, be prepared to be charged with - and found guilty of - abuse of discretion. And we'll put your name in the written opinion for the whole world to see. After all, we are mandamusing you. We get to meddle with you and how you run your court, but you don't get to mess with us.

The ultimate irony: Mandamus is a remedy to be issued against a specific judge to correct an error. But in at least two of the cases at issue, the original judge is no longer in office. The mandamus goes against successor judges who did not preside over the jury trials. How are they to devine the reasons why their predecessors concluded that something serious enough went awry in those trials to warrant a new trial “in the interest of justice”? How are they to fill the void created by the Supreme's newly established duty to deliver a written justification?

And how are the judges who left office ever to clear themselves of the allegations of abuse with respect to the propriety of their ruling?

SUPREME COURT ORDERS TRIAL COURTS TO EXPLAIN WHY THEY GRANTED NEW TRIALS: "In the Interest of Justice" WILL NO LONGER BE GOOD ENOUGH

In Re Columbia Medical Center of Las Colinas, No. 06-0416 (Tex. Jul. 3, 2009)(Johnson) (mandamus
granted) (jury trial, reasons for trial court judge disregarding jury verdict and granting new trial required)
(mandamus granted to order trial court to state specific reasons for setting aside jury verdict and granting a
new trial)
IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, SUBSIDIARY, L.P. D/B/A LAS COLINAS MEDICAL
CENTER, ANTONETTE CONNER, AND ANNA MATHEW; from Dallas County; 5th district (05-06-00611-CV, ___ SW3d ___, 05-12-06 Opinion of the Dallas Court of Appeals) as reinstated; stay order issued August 29, 2008, lifted. The Court conditionally grants in part and denies in part the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. [pdf]
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice
Green joined.

AFTER MANDAMUS PETITION-ABATEMENT PING-PONG INVOLVING THREE DIFFERENT TRIAL COURT JUDGES, SUPREMES ORDER THE LAST ONE TO COME UP WITH A VALID EXPLANATION WHY NEW TRIAL WAS GRANTED.

In Re Baylor Medical Center at Garland, No. 06-0491 (Tex. Jul 3, 2009) (mandamus granted)(Johnson)
(trial judge granted new trial and then resigned, mandamus abatement, current judge ordered to provide
reasons for granting new trial)
IN RE BAYLOR MEDICAL CENTER AT GARLAND; from Dallas County;
5th district (05-05-01663-CV, ___ SW3d ___, 01-04-06 Opinion of the Dallas Court below)
as reinstated, stay order issued August 29, 2008, lifted. The Court conditionally grants in part and denies in part the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice
Green joined.

TRIAL JUDGE ORDERED TO FURNISH EXPLANATION FOR GRANTING NEW TRIAL

In Re E.I. Du Pont de Nemours and Co., No. 08-0625 (Tex. Jul. 3, 2009)(Johnson) (mandamus granted: trial court's grant of new trial following jury verdict requires specific explanation)
IN RE E.I. DU PONT DE NEMOURS AND COMPANY; from Jefferson County;
9th district (09-08-00318-CV, ___ SW3d ___, 07-24-08 Opinion of the Ninth Court of Appeals)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court
conditionally grants in part and denies in part the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice
Green joined.

Default Judgment Etiquette Enforced: Dolgencorp of Texas, Inc. v. Lerma (Tex. 2009)

Be Nice to the Defense Counsel and Don't Ask for Entry of Default Judgment While He Is Busy In Another Venue

... or else we will reverse.

Dolgencorp of Texas v. Lerma (Tex. 2009)

In this appeal from a post-answer (and post-jury-selection) default judgment the Supremes remind court and counsel to be understanding when it comes to the logistics of being in two places at the same time. Supremes find that the elements of the Craddock test to set aside default for no-show at trial were satisfied where defense counsel was actually in trial in a different county and there was no secret about it, or lack of effort to deal with and resolve the scheduling problem. The trial judge just wouldn't go along with the continuance, and now stands rebuked.

FROM THE PER CURIAM OPINION:

Finally, this record compels us to note that judges and lawyers should, and in most instances do, extend common and professional courtesies to other judges and lawyers. See Tex. Code Jud. Conduct, Preamble (noting, in part, that judges must strive to enhance and maintain confidence in our legal system and should be governed in their judicial conduct by general ethical standards); Tex. Lawyer’s Creed-A Mandate for Professionalism, III(11) (“I will not take advantage, by causing any default or dismissal to be rendered, when I know the identity of an opposing counsel, without first inquiring about that counsel’s intention to proceed.”). Here, despite attempts by other judges to contact the trial judge and both Lerma’s counsel and the trial judge being aware that Dollar General’s counsel was in trial elsewhere, judgment was entered against a party that by neither word nor deed exhibited intention to abandon or frustrate the proceedings. It is a credit to the trial bench and bar that this type of record rarely ends up before appellate courts.

We reverse the judgment of the court of appeals. The case is remanded to the trial court for a new trial.

CASE DETAILS AND LINKS FOR Dolgencorp of Texas, Inc. v. Lerma, No. 08-0032 (Tex. Jul. 3, 2009)(per curiam) (motion for new trial after post-answer default judgment due to counsel's scheduling conflict should have been granted)
DOLGENCORP OF TEXAS, INC., D/B/A DOLLAR GENERAL STORE v. MARIA ISABEL LERMA, INDIVIDUALLY, ET AL.; from Cameron County; 13th district (13-03-00314-CV, 241 SW3d 584, 08-23-07 Opinion by the Thirteenth Court of Appeals below)
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

RELATED CONCEPTS: POST-ANSWER DEFAULT JUDGMENTS, MOTION FOR NEW TRIAL, POST-JUDGMENT MOTIONS, ELEMENTS OF CRADDICK TEST, CONSCIOUS INDIFFERENCE, ACCIDENT OR MISTAKE AS REASON FOR MISSING TRIAL SETTING.

Texas Supreme Court Again Expands Mandamus Powers [for the benefit of favored defendants]

July 3, 2009 - Opinions Released

TEXAS SUPREME COURT ORDERS JUDGES TO EXPLAIN AND JUSTIFY WHY THEY GRANTED NEW TRIALS [in cases in which tort claim defendants had prevailed with the jury]

"In the Interest of Justice" - a common label for judicial discretion in that regard and in others - will no longer pass muster as a sufficient ground.

In other cases in which decisions were released just in time for Fourth of July, the Supremes take additional steps to assure that prevailing defendants in health-care liability litigation can saddle unsuccessful plaintiffs and/or their lawyers with attorneys fees and costs as a sanction ... and as deterrence for other would-be plaintiffs: Judicial Med-Mal Reform Plus

In Re Columbia Medical Center of Las Colinas (Tex. 2009),
No. 06-0416 (Tex. Jul. 3, 2009)(Johnson) (mandamus granted) (reasons for trial court judge disregarding jury verdict and granting new trial required) (mandamus relief granted to direct trial court to elaborate on reasons for setting aside jury verdict and granting new trial) (also see --> JNOV) IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, SUBSIDIARY, L.P. D/B/A LAS COLINAS MEDICAL CENTER, ANTONETTE CONNER, AND ANNA MATHEW; from Dallas County;5th district (05-06-00611-CV, ___ SW3d ___, 05-12-06 Opinion of the Dallas Court of Appeals) as reinstated; stay order issued August 29, 2008, lifted. The Court conditionally grants in part and denies in part the petition for writ of mandamus. Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. [pdf] Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice Green joined. [pdf] E-Briefs in Tex 2009 No. 06-0416 IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS
The Texas Constitution provides that the right of trial by jury “shall remain inviolate.” Tex. Const. art. 1, § 15. The issue before us is whether, after a jury has rendered its verdict, the trial court may disregard that verdict, grant a new trial, and explain its action only as being “in the interests of justice and fairness.” We conclude that just as appellate courts that set aside jury verdicts are required to detail reasons for doing so, trial courts must give more explanation than “in the interest of justice” for setting aside a jury verdict. We conditionally grant mandamus relief directing the trial court to more specifically set out the reasons for which it set aside the jury verdict and granted a new trial.Conclusion: We conditionally grant relief. We direct the trial court to specify the reasons it refused to enter judgment on the jury verdict and ordered a new trial as to Columbia. The reasons should be clearly identified and reasonably specific. Broad statements such as “in the interest of justice” are not sufficiently specific. We are confident the trial court will comply. The writ will issue only if it fails to do so.

AFTER MANDAMUS PETITION-ABATEMENT PING-PONG INVOLVING THREE DIFFERENT TRIAL COURT JUDGES, SUPREMES ORDER THE LAST ONE TO SERVE UP A VALID EXPLANATION WHY NEW TRIAL WAS WARRANTED IN THE CASE.

In Re Baylor Medical Center at Garland (Tex. 2009) ,
No. 06-0491 (Tex. Jul 3, 2009) (mandamus granted)(Johnson) (trial judge granted new trial and then resigned, mandamus abatement, current judge ordered to provide reason for granting new trial)
IN RE BAYLOR MEDICAL CENTER AT GARLAND; from Dallas County; 5th district (05-05-01663-CV, ___ SW3d ___, 01-04-06 Opinion of the Dallas Court below) as reinstated, stay order issued August 29, 2008, lifted. The Supreme Court conditionally grants in part and denies in part the petition for writ of mandamus. Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. [pdf]
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice Green joined. [pdf] View Electronic Briefs in Tex. 2009 No. 06-0491 IN RE BAYLOR MED. CTR. AT GARLAND

NO PARTNERSHIP FORMED, AND THUS NONE EXISTED, UNDER TEXAS REVISED PARTNERSHIP ACT

Ingram v. Deere (Tex. 2009) ,
No. 06-0815 (Tex. Jul 3, 2009)(Wainwright)(dispute over existence of partnership under TRPA, partnership criteria/factors, fiduciary duty) (existence of partnership not proven, take-nothing judgment reinstated)
JESSE C. INGRAM, PH.D. AND BEHAVIORAL PSYCHOLOGY CLINIC, P.C. v. LOUIS DEERE, D.O. AND HILLVALE MEDICAL GROUP ASSOCIATION D/B/A HILLVALE MEDICAL ASSOCIATION; from Dallas County; 5th district (05-05-00063-CV, 198 SW3d 96, 04-27-06 Opinion of the Dallas court of Appeals) 2 petitions. The Court reverses the court of appeals' judgment and reinstates the trial court's judgment. Justice Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Medina, Justice Green, and Justice Willett joined, in which Justice O'Neill and Justice Brister joined except as to part II.D.5.a, and in which Justice Johnson joined except as to part II.D.2. [pdf]
Justice Johnson delivered a concurring opinion. [pdf] View Electronic Briefs in Tex. 2009 No. 06-0815 JESSE C. INGRAM, PH.D. v. LOUIS DEERE, D.O.
In this case, we review a court of appeals judgment reinstating a jury verdict finding that Louis Deere, D.O. and Jesse C. Ingram, Ph.D. formed a partnership pursuant to the Texas Revised Partnership Act (TRPA).TRPA lists five factors to be considered in determining whether a partnership has been formed. This determination should be made by examining the totality of the circumstances in each case, with no single factor being either necessary or sufficient to prove the existence of a partnership. Here, the evidence is legally insufficient to establish that a partnership existed between Ingram and Deere. Because the evidence of the formation of a partnership is legally insufficient, we do not address the issue raised in Ingram’s cross-petition challenging the court of appeals’ decision that Ingram owed Deere a fiduciary duty. Accordingly, we reinstate the trial court’s take-nothing judgment in favor of Ingram and reverse the court of appeals’ judgment.Whether a partnership exists must be determined by an examination of the totality of the circumstances. Evidence of none of the factors under the Texas Revised Partnership Act will preclude the recognition of a partnership, and even conclusive evidence of only one factor will also normally be insufficient to establish the existence of a partnership under TRPA. However, conclusive evidence of all five factors establishes a partnership as a matter of law. In this case, Deere has not provided legally sufficient evidence of any of the five TRPA factors to prove the existence of a partnership. Accordingly, we reverse the court of appeals’ judgment and reinstate the trial court’s take-nothing judgment.

APPRAISAL PROVISION IN INSURANCE CONTRACT ENFORCED

State Farm Lloyds v. Johnson (Tex. 2009),
No. 06-1071 (Tex. Jul. 3, 2009)(Brister) (INSURANCE LAW: appraisal clause in insurance context, hail damage to home of insured property owner) STATE FARM LLOYDS v. BECKY ANN JOHNSON; from Collin County; 5th district (05-05-00640-CV, 204 SW3d 897, 10-27-06 Opinion of the Dallas Court of Appeals) The Court affirms the court of appeals' judgment. Justice Brister delivered the opinion of the Court. [pdf] View Electronic Briefs in Tex. 2009 No. 06-1071 STATE FARM LLOYDS v. JOHNSON
Appraisal clauses have appeared in most property insurance policies in Texas for many years. Although they rarely detail the scope of appraisal, there has rarely been any litigation about it. The parties here agree that the scope of appraisal includes damage questions and excludes liability questions, but they disagree which is involved in this dispute about hail damage to a homeowner’s roof. Because an appraisal has yet to take place, we agree with the insured that the record does not establish that it will exceed the permissible scope of appraisal. Accordingly, we affirm the court of appeals’ judgment in favor of the insured.We do not decide today whether the appraisal conducted on remand will necessarily be binding. The summary judgment record does not, and probably cannot, answer that question until after the appraisal has taken place. But for the reasons stated above, we affirm the court of appeals’ order granting Johnson’s motion for summary judgment to compel State Farm to participate in the appraisal process, and remanding the issue of her attorney’s fees to the trial court for consideration.

SUPREMES AGAIN GRANT REVIEW TO VINDICATE HEALTH CARE DEFENDANT'S CLAIM TO SANCTIONS AFTER ABORTIVE MED-MAL SUIT - INTERLOCUTORY APPEAL CONCERNING EXPERT REPORT OBJECTIONS WAS NOT REQUIRED AS A PRELUDE.

Hernandez, MD v. Ebrom (Tex. 2009),
No. 07-0240 (Tex. Jul 3, 2009)(Johnson) (HCLC, does med-mal defendant forfeit right to seek sanctions by failing to pursue by interlocutory appeal challenge to expert report where objection was overruled by the trial court?)
MIGUEL HERNANDEZ, M.D. v. JULIOUS EBROM AND RICHARD HUNNICUTT; from Hidalgo County;13th district (13-06-00053 CV, ___ SW3d ___, 02-08-07 Opinion of the court below) opposed motion for leave to file post-submission brief granted
The Court reverses the court of appeals' judgment and remands the case to that court.Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, Justice Green, and Justice Willett joined. [pdf] Chief Justice Jefferson delivered a dissenting opinion, in which Justice O'Neill and Justice Medina joined. [pdf] View Electronic Briefs in Tex. 2009 No. 07-0240 MIGUEL HERNANDEZ, M.D. v. EBROM
A defendant in a health care liability claim may appeal from the interlocutory order denying its objection to the plaintiff’s expert report. The statutes authorizing the defendant’s objection and appeal do not impose consequences if an interlocutory appeal is not pursued. In this case, we consider whether a defendant health care provider’s failure to challenge the adequacy of an expert report by interlocutory appeal precludes a challenge of the report by appeal from a final judgment when the plaintiff later nonsuits before trial. The court of appeals held it does; we hold it does not. We reverse and remand to the court of appeals.

JURISPRUDENTIAL CURIO: FIRST THE AGENCY SUES, THEN IT CLAIMS THE COURT DOES NOT (YET?) HAVE JURISDICTION

ERS of Texas v. Duenez (Tex. 2009),
No. 07-0410 (Tex. Jul 3, 2009)(Brister) (administrative law, agency exclusive jurisdiction doctrine) EMPLOYEES RETIREMENT SYSTEM OF TEXAS v. XAVIER DUENEZ AND IRENE DUENEZ; from Calhoun County; 13th district (13-05-00729 CV, ___ SW3d ___, 04-05-07 Opinion below) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court dismisses the petition for want of jurisdiction. Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Medina, Justice Green, and Justice Willett joined. [pdf] Justice Hecht delivered a dissenting opinion. [pdf] Justice Wainwright delivered a dissenting opinion, in which Justice Johnson joined. [pdf] View Electronic Briefs in Tex. 2009 No. 07-410 EMPLOYEES RETIREMENT SYSTEM OF TEXAS v. DUENEZ
Construing the Act as a whole, we conclude that the court of appeals’ opinion rejecting ERS’s claim of exclusive jurisdiction here does not conflict with this Court’s opinion in Duenez I affirming ERS’s exclusive jurisdiction of questions relating to payment of benefits. Accordingly, without argument, we dismiss the petition for want of jurisdiction.

A MAJORITY OF THE SUPREMES DENIES MANDAMUS RELIEF IN DISPUTE OVER LEGAL CAPACITY ISSUE WITH RESPECT TO ARBITRATION AGREEMENT. NO LESS THAN FOUR (4) SEPARATE OPINIONS ARE HANDED DOWN.

In re Morgan Stanley & Co, Inc. (Tex. 2009),
No. 07-0665 (Tex. Jul. 3, 2009)(Medina) (arbitration vs. litigation: legal capacity of party to arbitration agreement, who decides the issue?)
IN RE MORGAN STANLEY & CO. INC., SUCCESSOR TO MORGAN STANLEY DW, INC.; from Dallas County; 5th district (05-07-00590-CV, ___ SW3d ___, 07-17-07 Opinion by the Dallas CoA)
The petition for writ of mandamus is denied.
Justice Medina delivered the opinion of the Court [pdf], in which Chief Justice Jefferson, Justice Wainwright, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Brister delivered a concurring opinion. [pdf]
Justice Willett delivered a concurring opinion. [pdf]
Justice Hecht delivered a dissenting opinion. [pdf](Justice O'Neill not sitting) Electronic Briefs in Tex. 2009 No. 07-0665 IN RE MORGAN STANLEY & CO. INC., SUCCESSOR TO MORGAN STANLEY DW INC.
In this original mandamus proceeding, the relator seeks to compel arbitration in accordance with its agreement in the underlying case. The other putative party to the agreement resists arbitration on the ground that she lacked the mental capacity to assent to the contract. The question here is whether the court or the arbitrator should decide this issue of capacity. The trial court concluded that it was the proper forum. We agree and, accordingly, deny the petition for writ of mandamus.
We agree that Prima Paint reserves to the court issues like the one here, that the signor lacked the mental capacity to assent. Accordingly, the trial court did not abuse its discretion in declining to yield the question to the arbitrator. Relator’s petition for writ of mandamus is denied.

DEFAULT JUDGMENT IMPROPER WHERE COUNSEL'S NO-SHOW FOR TRIAL WAS EXCUSABLE DUE TO CONFLICTING ENGAGEMENT IN ANOTHER COURT. NEW TRIAL WARRANTED UNDER CRADDOCK TEST

Dolgencorp of Texas, Inc. v. Lerma (Tex. 2009),
No. 08-0032 (Tex. 2009)(per curiam) (motion for new trial after post-answer default judgment due to counsel's scheduling conflict should have been granted; counsel was in trial in another county, and both counsel and the other court had numerous communications with the court that entered default judgment on no-show)
DOLGENCORP OF TEXAS, INC., D/B/A DOLLAR GENERAL STORE v. MARIA ISABEL LERMA, INDIVIDUALLY, ET AL.; from Cameron County; 13th district (13-03-00314-CV, 241 SW3d 584,08-23-07 Opinion by the Thirteenth Court of Appeals below) 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 [pdf] Electronic Briefs in Tex. 2009 No. 08-0032 DOLLAR GENERAL STORE v. LERMA
This appeal arises from a post-answer default judgment entered against Dolgencorp of Texas, Inc., d/b/a Dollar General Store (“Dollar General”) when its counsel failed to appear for trial because he was in a preferential trial setting in another county. Because Dollar General established it was entitled to a new trial pursuant to the factors set out in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939), we reverse and remand for a new trial. We reverse the judgment of the court of appeals. The case is remanded to the trial court for a new trial.

SUPREME COURT AGAIN STEPS IN TO ASSURE DEFENDANT IN UNSUCCESSFUL MED-MAL SUIT GETS TO COLLECT ATTORNEY'S FEES AS SANCTION

Aviles, MD v. Aguirre (Tex. 2009),
No. 08-0240 (Tex. Jul 3, 2009)(per curiam) (HCLC sanctions under former med-mal law to be awarded on remand)
WILFREDO AVILES, M.D., AND WILFREDO AVILES, M.D., P.A. v. ALBERT AGUIRRE, ET AL.; from Hidalgo County; 13th district (13-06-00495-CV, ___ SW3d ___, 02-14-08 Opinion below)(Dissenting opinion by Rose Vela) 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 [pdf] Electronic Briefs 08-0240 WILFREDO AVILES, M.D. v. AGUIRRE
Like the current statute,1 former article 4590i required dismissal of a health-care claim if no timely expert report was served, and an award of attorney’s fees and costs “incurred” by the defendant. Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 13.01, 1995 Tex. Gen. Laws 985, 986, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (hereinafter “article 4590i”). In this case, the trial court granted dismissal but denied attorney’s fees because they had been incurred by the defendant’s insurer rather than the defendant himself. A divided court of appeals affirmed. ___ S.W.3d ___. As this reflects a basic misunderstanding of both the statute and liability insurance, we reverse.

EXCLUSIVE REMEDY? - NO (IT'S NOT A WORKER'S COMP CASE)

Dealers Electrical Supply Co. v. Scoggins Construction Co, Inc. (Tex. 2009),
No. 08-0272 (Jul. 3, 2009)(O'Neill) (construction law: bond requirement for workers and materialmen, supplies of materials, Texas Construction Trust Fund Act no exclusive remedy)
DEALERS ELECTRICAL SUPPLY CO. v. SCOGGINS CONSTRUCTION COMPANY, INC. ANDBILL R. SCOGGINS; from Hidalgo County;13th district (13-06-00368-CV, ___ SW3d ___, 12-20-07 Opinion by the Thirteenth Court of Appeals). The Court reverses the court of appeals' judgment and remands the case to that court. Justice O'Neill delivered the opinion of the Court. [pdf] Electronic Briefs in Tex. No. 08-0272 DEALERS ELECTRICAL SUPPLY CO. v. SCOGGINS CONSTRUCTION CO., INC.
Chapter 2253 of the Texas Government Code, historically called the McGregor Act, requires a prime contractor on a public-work contract to execute a payment bond to protect laborers and materialmen who work on or supply materials for the project. See Tex. Gov’t Code § 2253.021(a)(2). In this case, an electrical subcontractor on a bonded public-work project walked off the job, leaving his supplier of electrical parts unpaid. The supplier missed the McGregor Act deadline to pursue a claim on the bond, and filed this suit against the prime contractor for violation of the Texas Construction Trust Fund Act, Tex. Prop. Code §§ 162.001(a), 162.031(a), and breach of a separate Joint Check Agreement designed to ensure payment for materials supplied to the subcontractor. We must decide whether the McGregor Act provides the supplier’s exclusive remedy. We hold that it does not. Accordingly, we reverse the court of appeals’ judgment and remand the case for the court to consider the remaining issues it did not address.

JUDICIAL ESTOPPEL BASED ON NONDISCLOSURE IN BANKRUPTCY COURT HELD NOT TO APPLY

Ferguson v. Building Materials Corp. of America (Tex. 2009),
No. 08-0589 (Tex. Jul. 3, 2009)(per curiam) (judicial estoppel based on bankruptcy proceeding does not apply here) JASON FERGUSON AND BOBBIE FERGUSON v. BUILDING MATERIALS CORPORATION OF AMERICA, CPC LOGISTICS, INC., AND ROBERT JAMES MADDOX; from Dallas County;8th district (08-07-00051-CV, 276 SW3d 45, 06-12-08 Opinion of the Eight Court of Appeals below) 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 [pdf] Electronic Briefs in Tex. 2009 No. 08-0589 FERGUSON v. BUILDING MATERIALS CORP. OF AM.
At issue in this appeal is whether the plaintiffs in a personal injury suit should be estopped from pursuing their claim because they initially omitted it as a listed asset in a pending bankruptcy. The court of appeals, in a divided opinion, concluded that the doctrine of judicial estoppel should apply and affirmed the trial court’s dismissal of the plaintiffs’ personal injury claim. 276 S.W.3d 45. The court of appeals reasoned that the doctrine applied because of the plaintiffs failure to add the personal injury claim as an asset in their bankruptcy proceeding before the personal-injury defendant pointed out the omission and moved for dismissal. Because we disagree that the doctrine is invoked under the circumstances of this case, we reverse and remand the personal injury claim to the trial court. We review a grant of summary judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). Because the Fergusons have taken neither a clearly inconsistent position nor obtained an unfair advantage, the court of appeals erred in affirming the dismissal of their personal injury claim under the doctrine of judicial estoppel. We accordingly grant the petition for review and, without hearing oral argument, reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings. See Tex. R. App. P. 59.1.

ANOTHER NEW TRIAL GRANTED - ANOTHER MANDAMUS ISSUED TO GET THE TRIAL COURT TO JUSTIFY THAT ACT (and explain why judgment was not entered for the defense)

In Re E.I. DuPont de Nemours and Co. (Tex. 2009).,
No. 08-0625 (Tex. Jul. 3, 2009)(Johnson) (mandamus granted: trial court's grant of new trial following jury verdict requires specific explanation)
IN RE E.I. DU PONT DE NEMOURS AND COMPANY; from Jefferson County;9th district (09-08-00318-CV, ___ SW3d ___, 07-24-08 Opinion of the Ninth Court of Appeals) Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants in part and denies in part the petition for writ of mandamus. Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. [pdf] Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice Green joined. [pdf] Electronic Briefs in Tex. 2009 No. 08-0625 IN RE E.I. DU PONT DE NEMOURS AND CO.
At issue in this mandamus proceeding is whether the trial court abused its discretion by disregarding the jury verdict and granting a new trial without giving its reasons for doing so. Based on In re Columbia Medical Center of Las Colinas, ___ S.W.3d ___ (Tex. 2009), we hold that it did and grant relief. Without hearing oral argument, we conditionally grant DuPont’s petition for writ of mandamus. See Tex. R. App. P. 52.8(c). The trial court is directed to specify the reasons for which it disregarded the jury verdict and ordered a new trial. We are confident the trial court will comply, and the writ will issue only if it fails to do so.

COURT-BLESSED DISCOVERY PRIOR TO RULING ON MOTION TO FORCE ARBITRATION PROMPTS HIGH COURT TO INTERVENE

In Re Houston Pipeline Co., L.P. (Tex. 2009),
No. 08-0800 (Tex. 2009)(per curiam) (discovery orders and motion to compel arbitration) (trial court ordered to rule on motion to compel arbitration, and to lift discovery orders).
IN RE HOUSTON PIPE LINE COMPANY, L.P., ET AL.; from Victoria County;13th district (13-07-00299-CV & 13-07-00362-CV, 269 SW3d 90,08-26-08 Opinion of the Thirteenth Court of Appeals)stay order issued October 17, 2008, 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] Electronic Briefs in Tex. 2009 No. 08-0800 IN RE HOUSTON PIPE LINE CO., L.P. D/B/A HOUSTON PIPE LINE CO.
When deciding a motion to compel arbitration under the Federal Arbitration Act, a Texas trial court applies Texas procedure, which permits discovery to be taken when it is needed before the arbitration or to permit the arbitration to be conducted in an orderly manner. Tex. Civ. Prac. & Rem. Code § 171.086 (a)(4),(6); see also Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 268 (Tex. 1992). At issue in this proceeding is whether the trial court abused its discretion by permitting discovery on damage calculations and other potential defendants, instead of deciding the motion to compel arbitration. For the reasons below, we conclude the trial court should not have ordered pre-arbitration discovery, but rather should have decided the motion to compel arbitration. Because the discovery ordered here is overbroad and beyond the issues raised in the motion to compel, we conclude that the trial court abused its discretion by ordering this discovery rather than ruling on the legal issues raised by the motion to compel. Accordingly, without hearing oral argument, we conditionally grant the writ and direct the trial court to vacate the discovery order and to rule on the motion to compel arbitration. Tex. R. App. P. 52.8(c). We are confident the trial court will comply, and our writ will issue only if it does not.