2009-11-20 Texas Supreme Court Nixes Gas Station Owners' Class Action Against Exxon

ANOTHER CLASS-ACTION UNDONE BY THE TEXAS SUPREME COURT

Exxon Mobil Corp. v. Gill, No. 07-0404 (Tex. Nov. 20, 2009)(per curiam)(class action suits)(trial court’s class certification order in suit brought by gas station dealers over pricing and rebates is vacated and the case is remanded to that court for further proceedings)
EXXON MOBIL CORPORATION v. DAN GILL, ET AL.; from Nueces County;
13th district (13 06 00048 CV, ___ SW3d ___, 04 12 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. (Justice O'Neill and Justice Guzman not sitting)

APPEAL OVER THIRD-PARTY LIABILITY IN TEXAS A&M BONFIRE COLLAPSE ENDS AS TEXAS SUPREME COURT UN-GRANTS PETITION FOR REVIEW AS MOOT AFTER SETTLEMENT

Zachry Construction Corp v. Texas A&M University, No. 07-1050 (Tex. Nov. 20, 2009) (O'Neill)(A&M bonfire litigation aftermath, proportionate responsibility, responsible third party) (petition for review mooted by settlement and status change to "settling person")
ZACHRY CONSTRUCTION CORPORATION, ET AL. v. TEXAS A&M UNIVERSITY; from Brazos County; 10th district (10 05 00139 CV, 236 SW3d 801, 11 14 07) 2 petitions, motion to dismiss denied The Court withdraws its order of May 15, 2009, granting the petitions for review, as the petitions were improvidently granted. The petitions for review are denied.
Justice Harriet O'Neill delivered the opinion of the Court. (Justice Willett not sitting)

SUBSTITUTED OPINION ISSUED IN BILLBOARD CONDEMNATION APPEAL

State of Texas v. Central Expressway Sign Associates, No. 08-0061 (Tex. Nov. 20, 2009)(Subst. Op. by O'Neill) (condemnation, proper method for determining market value, admissibility of expert testimony, methods to appraise market value of condemned property)(harmful error analysis of complaints about admission or exclusion of evidence on appeal)
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)
motion for rehearing denied
The Court's opinion of June 26, 2009 is withdrawn and the opinion of this date is issued.
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.
(Justice Guzman not sitting)

ANOTHER TORT SUIT AGAINST A GOVERNMENTAL ENTITY BITES THE DUST IN THE HIGH COURT

City of Waco v. Kirwan, No. 08-0121 (Tex. Nov. 20, 2009)(Green)(premises liability, fatal fall from cliff, recreational use statute)
CITY OF WACO v. DEBRA KIRWAN, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF BRAD MCGEHEE, DECEASED; from McLennan County;
10th district (10 07 00123 CV, 249 SW3d 544, 01 09 08)
The Court reverses the court of appeals' judgment and dismisses the case.
Justice Green delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice
Wainwright, Justice Medina, Justice Johnson, Justice Willett, and Justice Guzman joined as to Parts I–V, and in which Chief Justice Jefferson joined as to Part IV.

JURY'S DENIAL OF ALL ATTORNEY'S FEES REVERSED AND CASE REMANDED FOR NEW TRIAL ON FEES

Midland Western Building LLC v. First Service Air Conditioning Contractors, Inc., No. 08-0504 (Tex. Nov. 20, 2009)(per curiam) (zero attorney's fees awarded by jury not supported by the evidence, attorney fee testimony, segregation of fees incurred against different parties)(new trial on attorney's fees ordered)
MIDLAND WESTERN BUILDING L.L.C. v. FIRST SERVICE AIR CONDITIONING CONTRACTORS, INC.; from Midland County; 11th district (11 06 00222 CV, ___ SW3d ___, 03 13 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 remands the case to the trial court.

NON-SIGNATORIES COMPELLED TO ARBITRATE WRONGFUL DEATH CLAIMS BASED ON BENEFICIARY STATUS

In Re Golden Peanut Co.,LLC, No. 09-0122 (Tex. Nov. 20, 2009)(per curiam)(mandamus compelling arbitration granted) (arbitration and nonsignatories, wrongful death plaintiffs bound by arbitration agreement consented to by worker prior to being killed on the job as derivative claimants and must arbitrate claim against employer, pre-injury waivers, forum selection vs. waiver of substantive rights)
IN RE GOLDEN PEANUT COMPANY, LLC; from Gaines County;
11th district (11 08 00215 CV, 269 SW3d 302, 11 13 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.


ORDER ON MOTIONS FOR REHEARING


WILLETT DISSENT FROM DENIAL OF PETITION FOR REVIEW IN CASE RAISING OFFICIAL IMMUNITY ISSUE

Watson v. Watkins, No. 09-0166 (Tex. Nov. 20, 2009)(Willett)(opinion dissenting from denial of review) (would accept case presenting question whether peace officers are entitled to official immunity for acts performed while serving as private security guards will off-duty).
SHANE WATSON v. SHIRLEY NEWMAN AND JILL WATKINS; from Potter County;
7th district (07 08 00203 CV, ___ SW3d ___, 11 21 08)
Justice Willett, joined by Justice Hecht, delivered an opinion dissenting from the denial.

2009-10-30 Tex. Sup. Ct. Opinions

Texas Supreme Court Opinions Issued October 30, 2009

ATTORNEY'S FEES OCCASIONED BY PROFESSIONAL NEGLIGENCE OF ATTORNEY(S) RECOVERABLE BY CLIENT AS DAMAGES IN SUBSEQUENT LEGAL MALPRACTICE SUIT - "AMERICAN RULE" NOTWITHSTANDING

Akin, Gump, Strauss, Hauer & Feld, LLP v. National Development and Research Corp. No. 07-0818 (Tex. Oct. 30, 2009)(Johnson)(legal malpractice, damages dependent on collectibility or would-be judgment, attorney's fees caused by malpractice as recoverable damages, the American Rule)(fee forfeiture remedy for breach of fiduciary duty to client distinguished) (proper amount of attorney's fees damages to be determined upon remand)
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. v. NATIONAL DEVELOPMENT AND RESEARCH CORPORATION; from Dallas County; 5th district (05-06-01024-CV, 232 SW3d 883, 08-29-07) 2 petitions
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case in part to the court of appeals.
Justice Johnson delivered the opinion of the Court.
Related Tex Parte post: Texas Supreme Court: Legal malpractice client can recover fees it paid

CORRECT AMOUNT OF FRAUD DAMAGES TO BE FIGURED ON REMAND, VIA REMITTITURE OR NEW TRIAL

Aquaplex, Inc v. Rancho La Valencia, Inc., No. 08-0280 (Tex. Oct 30, 2009)(per curiam) (fraud damages, proving amount of damages, remittiture by court of appeals or new trial)
AQUAPLEX, INC. AND JAMES EDWARD JONES, JR. v. RANCHO LA VALENCIA, INC. AND CHARLES R. "RANDY" TURNER; from Travis County; 7th district (07-06-00157-CV, 253 SW3d 728, 11-02-07)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court affirms in part and reverses in part the court of appeals' judgment and remands the case to that court.

COURT OF APPEALS SHOULD NOT HAVE RENDERED JUDGMENT IN INVERSE CONDEMNATION APPEAL; CASE TO GO BACK TO TRIAL COURT FOR FURTHER PROCEEDINGS

City of Houston v. Trail Enterprises, Inc. No. 08-0413 (Tex. Oct. 30, 2009)(per curiam) (ripeness doctrine, inverse condemnation ripe, regulatory takings claim, zoning)(remanded to trial court)
CITY OF HOUSTON, TEXAS v. TRAIL ENTERPRISES, INC. D/B/A WILSON OIL COMPANY, ET AL.; from Harris County; 10th district (10-05-00382-CV, 255 SW3d 105, 04-09-08)
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 remands the case to the trial court.

VICE-PRINCIPALS WHO DEFAMED EMPLOYEE WITH KNOWLEDGE OF FALSITY TRIGGERED KNOWING-FALSEHOOD EXCLUSION OF COMMERCIAL INSURANCE POLICY'S PI/LIBEL/SLANDER COVERAGE. INSURER EXCUSED FROM PAYING.

Chrysler Ins. Co., v. Greenspoint Dodge of Houston, Inc., No. 08-0780 (Tex. Oct. 30, 2009)(per curiam) (insurance coverage dispute, knowledge of falsity exclusion to defamation liability coverage based on knowledge of vice-principals; knowledge imputed on insured, thus exclusion applies, warranting take-nothing judgment)
CHRYSLER INSURANCE COMPANY, FORMERLY KNOWN AS DAIMLERCHRYSLER INSURANCE COMPANY v. GREENSPOINT DODGE OF HOUSTON, INC.; from Harris County;
1st district (01-05-01115-CV, 265 SW3d 52, 04-10-08) 2 petitions
motion to dismiss the cross-petition on behalf of Jack Apple, Jr. granted
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court affirms in part and reverses in part the court of appeals' judgment and renders judgment.
(Justice Guzman not sitting)

DEFAULT JUDGMENT REVERSED ON HYPER-TECHNICALITY IN FORM. - SERVICE OF CITATION WAS BY CERTIFIED MAIL, BUT SUPREMES FIND FAULT WITH ABSENCE OF A NOTATION AS TO THE HOUR ON THE RETURN (as if it could ever make any difference). -- Even the slightest irregularity will do to throw out a [default] judgment for a Plaintiff.

Insurance Company of the State of Pennsylvania v. Lejeune, No. 08-0829 (Tex. Oct. 30, 2009) (per curiam) (restricted appeal of default judgment, error on the face of the record, time of service not noted on return of citation)
INSURANCE COMPANY OF THE STATE OF PENNSYLVANIA v. EDWARD LEJEUNE; from Red River County; 6th district (06-07-00142-CV, 261 SW3d 852, 08-20-08)
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 remands the case to the trial court.