Texas Supreme Court ends FY with more of the same

A RAFT OF OPINIONS WITH LITTLE FANFARE

Following its annual tradition, the Texas Supreme Court this morning emitted a gust of opinions just in time for the impending end of the Fiscal Year. All justices save two attached their names to opinions of the Court. In addition, Phil Johnson weighed in with a dissent to the Court's resolution of whether a hospital bed is a medical device for purposes of health care and/or premises liability, an issue that badly split the supreme appellate body to the tune of five (5) separate opinion. A rare scenario - if not a first - in recent high court history. As is true of many cases accepted for supreme court scrutiny, there was disagreement (on the nature of the defective bed that caused a patient's fall and injury) in the court below as well.

Only Justice Green was missing from the roll of distinguished opinion authors. Perhaps he is too busy planning his re-election strategy. As hypothesized previously, with some empirical data in tow, the need to hit the campaign trail may undermine judicial productivity (or at least provide a plausible excuse). Since they have already taken themselves out of their respective races, the electoral distraction does not apply to Justice Brister and Justice O'Neill, who have workaholic credentials in any event (at least by high court standards) and each penned a signed opinion on behalf of the Court. Brister also wrote a dissent.

The remainder of today's stack of opinions - long awaited after weeks of summerly lull - will make for interesting reading over the weekend, even if the case outcomes hold few if any surprises. Eleven opinions of the court delivered at once, not to mention concurrences and dissents, will tax the digestive capacity of any seasoned insta-pundit, not to mention the ordinary member of the attentive public or even regular court watcher.

Upon preliminary perusal, there is an intriguing e-discovery mandamus with an opinion by Justice O'Neill delving into how electronic discovery issues are handled in federal courts; an oil & gas contract construction case precipitated by a dispute over fugitive gas; two opinions addressing entitlement to attorney's fees (or absence thereof), at least one with reference to "the American Rule."

THE AMERICAN RULE - TEXAS STYLE

While we are on the seemingly patriotic topic of the "American Rule" (each party pays its own attorneys fees as opposed to the loser-pays principle favored by Europeans and other aliens), there is even more in the Court's fiscal-year-ending jurisprudence: We get learn the Court's view on the effect of a nonsuit when filed by a health care provider as plaintiff where the consumer/defendant had filed a counterclaim before the trial court had signed the dimissal order. The Court's unsurprising resolution of that case makes for a nice complement to the cases in which members of the Court went out of their way to make sure a prevailing health care defendant gets to collect attorneys fees from the patient-plaintiff as a sanction - dead or alive - even if the med-mal suit merely failed for procedural reasons, such as a missed deadline for filing the requisite expert report.

Did anyone suggest that there is a tad of a double standard? Not to mention - shall we say - preferential treatment of certain types of litigants - like Defendants? What a crude insinuation! Here, after all, one of the usual suspects appeared as the Plaintiff! The Court's critics better offer a more refined analysis of disposition patterns. After all, it's true: Plaintiff s don't always lose in the Texas Supreme Court -- especially not when they seek collection of a debt from a consumer. To all appearances, what matters is who you are - what category of litigant - not whether you are plaintiff or defendant, appellant or respondent. Sure, different statutory and nonstatutory considerations may be invoked, but those are malleable. And if the precedents don't fit, we can always change them. Then cite the new ready-made precedent in the next case down the road as authority. Indeed, there are a couple of those in today's offering.

WHO WON AND WHO LOST?

On that score, the usual beneficiaries of Supreme Court jurisprudential largess - governmental defendants and corporations - did well.

No surprises here.

Two more whistleblowers got skinned in the name of Lueck, their equally hapless predecessor on the Court's public employment/governmental entity docket. Since the Court set new precedent in TxDOT v. Lueck for jurisdictional dismissal of WBA claims on the pleadings, these other Whistleblower appeals could be swiftly disposed of in brief per curiams. And so they were.

Another public employment dispute - also resolved in favor of the governmental entity of course - concerned a municipal officer's disciplinary proceeding. Justice Hecht penned the opinion, and managed to explain with with less than 55 footnotes why the City was right in arguing that the hearing examiner had exceeded his authority when ordering reinstatement. No real surprise here either, leaving aside the footnote meter.

DISMISSAL FOR LACK OF EXHAUSTION & WANT OF JURISDICTON

- not to mention - WANT OF COMPASSION

Lastly, there is a worker's comp appeal (aka judicial review suit). Those pesky malingeres! They can't even get their paperwork right and exhaust their administrative remedies. We need to send a message here: Case dismissed. Compassion is for the comp carriers that are tardy in processing and disputing claims. No wonder they have such a hard time keeping up and denying claims. There are so many of them. Plus, they have to deal with these pesky claimants all day long.)

Dismissed for lack of jurisdiction!

Of course.

No jurisdiction. No need to entertain the merits of any claim, pain, or request for a judicial remedy.

Hand me that plea. And we will be done.

The jurisdiction, the jurisdiction, that's the thing .... that won't ever trouble the conscience of the King.


LAST INSTALMENT OF TEX. SUP. CT. OPINIONS FOR THE CURRENT FISCAL YEAR:

City of Pasadena, TX v. Smith, No. 06-0948 (Tex. Aug. 28, 2009)(Hecht) (disciplinary appeal, authority of hearing examiner, police officer, UDJA and jurisdictional issues) CITY OF PASADENA, TEXAS v. RICHARD SMITH; from Harris County; 1st district (01-05-01157-CV, 263 SW3d 80, 09-14-06) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Hecht delivered the opinion of the Court.

Dynegy Midstream Services, LP v. Versado Gas Processors, LLC, No. 07-0043 (Tex. Aug. 28, 2009)(Willett) (oil and gas law litigation, gas lost in transit, construction of contract re: sale, delivery) DYNEGY MIDSTREAM SERVICES, LIMITED PARTNERSHIP AND VERSADO GAS PROCESSORS, LLC v. APACHE CORPORATION; from Harris County; 14th district (14-05-00010-CV, 214 SW3d 554, 12-07-06) 2 petitions The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court. Justice Willett delivered the opinion of the Court.

TDHHS v. Okoli, No. 07-0642 (Tex. Aug. 28, 2009)(per curiam)(WBA case decided per Lueck) TEXAS DEPARTMENT OF HEALTH AND HUMAN SERVICES v. OLIVER OKOLI; from Harris County; 1st district (01-07-00103-CV, 263 SW3d 275, 06-28-07) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands

Marks v. St. Luke's Episcopal Hospital, No. 07-0783 (Tex. Aug. 28, 2009)(Medina)
(injury caused to patient by defective hospital bed, what type of PI claim? medical health care liability or premises liability?) IRVING W. MARKS v. ST. LUKE'S EPISCOPAL HOSPITAL; from Harris County; 1st district (01-04-00228-CV, 229 SW3d 396, 05-03-07) The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court. Justice Medina delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Brister, and Justice Green joined. Chief Justice Jefferson delivered a concurring opinion. Justice Hecht delivered a dissenting opinion. Justice Wainwright delivered a dissenting opinion. Justice Johnson delivered a dissenting opinion, in which Justice Hecht, Justice Wainwright, and Justice Willett joined.

Intercontinental Group Partnership v. KB Home Lone Star LP., No. 07-0815 (Aug. 28, 2009)(Willett) (prevailing party for attorney fees purposes) INTERCONTINENTAL GROUP PARTNERSHIP v. KB HOME LONE STAR L.P.; from Hidalgo County; 13th district (13-06-00617-CV, ___ SW3d ___, 08-23-07)The Court reverses the court of appeals' judgment and renders judgment.Justice Willett delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Green, and Justice Johnson joined. [pdf]Justice Brister delivered a dissenting opinion, in which Justice O'Neill, Justice Wainwright, and Justice Medina joined.

TxDOT v. Garcia, No. 07-1030 (Tex. Aug. 28, 2009)(per curiam) (Whistleblower Act claim, allegation of report of violation of law jurisdictional) TEXAS DEPARTMENT OF TRANSPORTATION v. SERGIO GARCIA; from Cameron County; 13th district (13-07-00004-CV, 243 SW3d 759, 11-01-07) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion

State Office of Risk Management v. Lawton, No. 08-0363 (Tex. Aug. 28, 2009)(Jefferson) (workers comp claim; deadline for contesting compensability) STATE OFFICE OF RISK MANAGEMENT v. MARY LAWTON; from Brazos County; 10th district (10-07-00072-CV, 256 SW3d 436, 04-16-08)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. View Electronic Briefs

MBM Financial Corporation v. The Woodlands Operating Co., No. 08-0390 (Tex. Aug. 28, 2009)(Brister)(what constitutes nominal damages?, recovery of damages as prerequisite for recovery of attorneys' fees) MBM FINANCIAL CORPORATION, ET AL. v. THE WOODLANDS OPERATING COMPANY, L.P.; from Montgomery County; 9th district (09-07-00060-CV, 251 SW3d 174, 04-10-08)2 petitionsThe Court reverses the court of appeals' judgment and renders judgment.Justice Brister delivered the opinion of the Court. (Justice O'Neill not sitting)

In Re Liberty Mutual Fire Ins. Co., No. 08-0742 (Tex. Aug. 28, 2009)(per curiam) (worker's comp, exhaustion of administrative remedies) IN RE LIBERTY MUTUAL FIRE INSURANCE COMPANY; from Nueces County; 13th district (13-08-00129-CV, ___ SW3d ___, 08-07-08)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

In Re Greater Houston Orthopaedic Specialists, Inc. No. 08-0820 (Tex. Aug. 28, 2009)(per curiam) (effect of misnomer, nonsuit and counterclaim) IN RE GREATER HOUSTON ORTHOPAEDIC SPECIALISTS, INC.; from Cameron County; 3th district (13-08-00366-CV, ___ SW3d ___, 09-11-08)stay order issued October 17, 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

In Re Weekley Homes, LP. No. 08-0836 (Tex. Aug. 28, 2009)(O'Neill)(discovery mandamus, order to facilitate recovery of deleted emails from computer) IN RE WEEKLEY HOMES, L.P.; from Dallas County; 5th district (05-08-01249-CV, ___ SW3d ___, 09-24-08) The Court conditionally grants the petition for writ of mandamus.Justice O'Neill delivered the opinion of the Court.