The Jefferson Court Blog: October 2009

MISSION STATEMENT: THE BUSINESS OF AN ALL-REPUBLICAN TEXAS SUPREME COURT IS TO REVERSE JURY VERDICTS IN TORT CASES AGAINST CORPORATE DEFENDANTS.

A VARIETY OF LEGAL THEORIES WILL DO, INCLUDING FEDERAL PREEMPTION

October 23, 2009 Opinions

AS LONG AS THE NUMBER OF FOOTNOTES EXCEEDS 50, IT MUST BE THE CORRECT DECISION (AFTER ALL, WHO HAS THE TIME TO ACTUALLY READ HECHT'S OPINIONS AND UNDERSTAND THAT FEDERAL INVOLVEMENT WAS MEANT TO PROMOTE SAFETY AND PREVENT TRAGEDIES SUCH AS THIS ONE, RATHER THAN PROVIDE AN EXCUSE TO THROW OUT A JURY AWARD IN A WRONGFUL DEATH CASE IN THE NAME OF FEDERAL PREEMPTION?)

Missouri Pacific RR Co. v. Limmer, No. 06-0023 (Tex. Oct. 23, 2009)(Hecht) (j udgment on j ury verdict in wrongful dea th case arising from train-truck collision reversed based on federal preemption) MISSOURI PACIFIC RAILROAD COMPANY D/B/A UNION PACIFIC RAILROAD COMPANY v. PATRICIA LIMMER, BILLYE JOYCE SMITH, AND BOBBY JEAN NOTHNAGEL; from Harris County;14th district (14-02-00688-CV, 180 SW3d 803, 11-29-05) 2 petitions The Court reverses the court of appeals' judgment and renders judgment.Justice Hecht delivered the opinion of the Court in which Chief Justice Jefferson, Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined.(Justice O'Neill and Justice Guzman not sitting)(Newly appointed Justice Eva Guzman is the author of the opinion in the court of appeals)(reversal and remand not sufficient, new colleagues hold, take-nothing judgment must be entered)

WHAT HAPPENS WHEN A JUDGMENT IS REVERSED THAT HAS ALREADY BEEN PAID TO AVOID CONTINUING ACCRUAL OF INTEREST? CAN THE SUCCESSFUL APPELLANT GET THE MONEY BACK?

Miga v. Jensen, No. 07-0123 (Tex. 2009)(Jefferson) (recovery of money paid on judgment upon reversal on appeal, restitution, unjust enrichment) (voluntary payment rule inapplicable) DENNIS L. MIGA v. RONALD L. JENSEN; from Tarrant County;2nd district (02-05-00277-CV, ___ SW3d ___, 11-30-06). The Court affirms the court of appeals' judgment. Chief Justice Jefferson delivered the opinion of the Court.

FEE RECOVERY LIMITED

Smith v. Patrick W. Y. Tam Trust, No. 07-0970 (Tex. Oct. 23, 2009)(Jefferson) (reasonableness of attorneys fees when recovery of damages is less than what was sought) LAURI SMITH AND HOWARD SMITH v. PATRICK W.Y. TAM TRUST; from Collin County;5th district (05-06-00356-CV, 235 SW3d 819, 07-31-07). The Court reverses in part the court of appeals' judgment and remands the case to the trial court. Chief Justice Jefferson delivered the opinion of the Court.

DEBT COLLECTORS / THIRD-PARTY DEBT BUYERS CAN'T DO NO WRONG - SUPREME COURT BLESSES ATTEMPTS TO USE (AND BURDEN) STATE COURT SYSTEM TO COLLECT CREDIT CARD DEBT ALREADY DISCHARGED IN BANKRUPTCY

Unifund CCR Partners v. Villa, No. 08-1026 (Tex. Oct. 23, 2009)(per curiam) (sanctions for filing suit to collect debt discharged in bankruptcy reversed) UNIFUND CCR PARTNERS v. JAVIER VILLA; from Webb County;4th district (04-07-00465-CV, 273 SW3d 385, 09-17-08) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment. Per Curiam Opinion

FORMER EMPLOYEE COMPELLED TO ARBITRATE (WHAT ELSE IS NEW?)

In Re Polymerica, LLC, No. 08-1064 (Tex. Oct. 23, 2009)(per curiam) (arbitration mandamus granted) IN RE POLYMERICA, LLC D/B/A GLOBAL ENTERPRISES, INC.; from El Paso County; 8th district (08-08-00070-CV, 271 SW3d 442, 11-25-08) stay order of February 24, 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

ORDERS ON MOTIONS FOR REHEARING

EVEN ODD MINI-SUPPL-OPS WILL BOOST THE PRODUCTIVITY STATS: SUPREMES ISSUE PER CURIAM ON MOTION FOR REHEARING THAT DOES NOT EVEN CITE ORIGINAL OPINION, AND DOES NOT SAY WHO O'CONNOR IS (no, it's not the former U.S. Supreme Court Justice)

In Re Houston Pipe Line Co, LP., No. 08-0800 (Tex. Oct. 23, 2009)(per curiam) (opinion on denial of motion for rehearing) (limited discovery prior to arbitration sometimes permissible) 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). Supplemental Per Curiam Opinion

The Texas Supreme Court has only issued a single opinion in the new fiscal year (which began September 1) - a per curiam mandamus grant in a discovery dispute. The Court has already denied dozens of petitions for review (PFRs) however. (list updated Oct. 19, 2009)

To wit:

THE FOLLOWING PETITIONS FOR REVIEW WERE DENIED OCT 16, 2009:

09-0575

BOBBY FERACHI v. SHAWN CADY; from Denton County;2nd district (02-07-00355-CV, ___ SW3d ___, 05-28-09)(contract for purchase of interest in houseboat unsuccessfully challenged as indefinite and unenforceable, indefiniteness of contract, meeting of the minds element, JNOV)

09-0612

NAZARETH INTERNATIONAL, INC. v. J.C. PENNEY COMPANY, INC. AND J.C. PENNEY CORPORATION, INC.; from Collin County;5th district (05-07-01578-CV, 287 SW3d 452, 06-12-09) as redrafted (action for the price of goods, merchant business-to-business sales)

09-0621

BIELA'S GLASS AND ALUMINUM PRODUCTS, INC. AND ALERT LOCK AND KEY v. SONIA VALVERDE; from Bexar County;4th district (04-08-00587-CV & 04-08-00857-CV, ___ SW3d ___, 06-10-09, pet denied Oct 2009) (designation of responsible third party, timelines, limitations, res judicata)

09-0663

MICHAEL G. BYBOTH v. WOOD LIMITED PARTNERSHIP; AMS STAFF LEASING, INC.; AND CHARLES D. WOOD, JR.; from Collin County;5th district (05-08-00915-CV, ___ SW3d ___, 05-21-09)(breach of promissory note, personal guaranty, findinds of fact and conclusions of law).

09-0674

JOHN CLYDE GUERRA v. WAL-MART STORES, INC. AND ED GARZA, INDIVIDUALLY AND AS AGENT FOR WAL-MART; from Starr County;4th district (04-08-00146-CV, ___ SW3d ___, 07-01-09, pet. denied Oct 2009)(employment dispute, at will employment, no employment contract - no breach of contract, no agency, actual or apparent authority to enter contract for life-long employment, intentional infliction of emotional distress claim fails on appeal)

09-0680

WILLIAM D. BEARD v. COMMISSION FOR LAWYER DISCIPLINE; from Dallas County; 5th district (05-07-00428-CV, ___ SW3d ___, 03-17-09, pet denied Oct 2009)(disbarment affirmed, affirmative defense of limitations waived by failure to plead it,trial amendment denied as prejudicial)

09-0682

ROY JONES v. POLK MECHANICAL COMPANY, LLC; from Bexar County;4th district (04-08-00509-CV, ___ SW3d ___, 07-01-09, pet. denied Oct 2009)(limitations discovery rule, standing issue as basis for summary judgment)

09-0718

R.W. ROGERS, SR. v. LAYNE HARWELL AND NELDA HARRIS; from Tarrant County; 2nd district (02-08-00376-CV, ___ SW3d ___, 05-28-09, pet denied Oct 2009)(prisoner's malpractice suit against criminal defense attorney properly dismissed)

THE FOLLOWING PETITIONS FOR REVIEW WERE DENIED OCT 9, 2009:

09‑0424

FREDRICK GILANI v. MOJGAN JALAILI-NAEINI; from Denton County;2nd district (02‑09‑00015‑CV, ___ SW3d ___, 03‑19‑09, pet denied Oct 2009)(untimely notice of appeal, jurisdictional dismissal required)

09‑0507

CARLOS A.L. VAUGHN v. NATRENIA L. HICKS, ET AL.; from Anderson County;14th district (14‑08‑00726‑CV, ___ SW3d ___, 04‑16‑09)Vaughn v. Hicks (Tex.App.- Houston [14th Dist.] Apr. 16, 2009, pet. denied Oct 2009)(per curiam) (pro se prisoner suit should have been dismissed without prejudice, rather than with prejudice)

09‑0551

CLAIRE STANARD PHILLIPS v. TROY D. PHILLIPS; from Dallas County;8th district (08‑06‑00171‑CV, ___ SW3d ___, 03‑26‑09, pet. denied Oct 2009)(divorce property division, characterization of property, constructive fraud, offset reimbursement claims)

09‑0624

BOBBY LUCKY v. KITCHEN CAPTAIN HAINES ET AL.; from Taylor County;11th district (11‑08‑00252‑CV, ___ SW3d ___, 05‑07‑09, pet. denied Oct 2009)(inmate suit re: contaminated food, dismissal affirmed)

09‑0631

ELIJAH W. RATCLIFF v. LHR, INC.; from Polk County;9th district (09‑07‑00566‑CV, ___ SW3d ___, 05‑28‑09, pet. denied Oct 2009)(debt suit, breach of retail installment contract, summary judgment for plaintiff suing as assignee affirmed, no-evidence motion for summary judgment on counterclaim granted and affirmed, adequacy of time prior to no-evidence summary judgment)

09‑0656

GEORGE DIEHL DOLAN v. ZELIE M. DOLAN; from Harris County;1st district (01‑07‑00694‑CV, ___ SW3d ___, 06‑18‑09, pet. denied Oct 2009) Dolan v. Dolan (Tex.App.- Houston [1st Dist.] Jun. 18, 2009. pet. denied Oct 2009) (probate law, trustee, breach of fiduciary duty, preservation of error)

09‑0687

BOBBIE WASHINGTON v. ANNIE MARIE GARRETT SMITH, ET AL.; from Harrison County; 6th district (06‑08‑00121‑CV, 289 SW3d 362, 06‑30‑09, pet denied Oct 2009)(probate litigation, removal of administratrix, dependent, independent administration of estate, attorneys fees, appellate sanctions denied)

09‑0727

JOHN FOX v. CITY OF EL PASO, THOMAS MAGUIRE, WILLIAM STERN, MARIO D'AGOSTINO, SAM JARVIS AND JOHN DOE(S); from El Paso County;8th district (08‑08‑00093‑CV, ___ SW3d ___, 07‑22‑09, pet. denied Oct 2009)(defective appellate briefing, pro se litigants held to the same standards)