Texas Supreme Court finds that mandamus review is not available to vacate order compelling arbitration (this time)
.... and grants mandamus relief.
In the words of Justice Brister:
"We granted oral argument to address more specifically when mandamus relief is available in connection with orders compelling arbitration. Finding it is unavailable here, we conditionally grant the writ." [against the court of appeals, which opined otherwise]
Party opposing arbitration may get its day in (appeals) court later:
Arbitration-friendly Supreme Court finds that appeal from final judgment (presumably from order confirming arbitration award) is adequate remedy, notwithstanding delay and additional costs, where trial court stayed litigation by interlocutory order pending arbitration, rather than dismissing the action with a final appealable order prior to arbitration. Court holds that immediate mandamus relief may be appropriate in another case. (Perhaps in the next Perry Homes case?)
In Re Gulf Exploration, No 07-0055 (Tex. Apr. 17, 2009)
(arbitration mandamus, mandamus against order compelling arbitration as opposed to order denying arbitration) IN RE GULF EXPLORATION, LLC, ET AL.; from Midland County; 11th district (11-06-00244-CV, 211 SW3d 828, 11-30-06)
The Court conditionally grants the petition for writ of mandamus.
Justice Scott Brister delivered the opinion of the Court.
RELATED CONCEPTS: arbitration mandamus vs. interlocutory appeal of order compelling arbitration, order denying arbitration; stay vs. dismissal of suit when arbitration is compelled; abatement pending arbitration. Perry Homes v. Cull 258 SW3d 580 (Tex. 2008)(denial of right to arbitrate based on waiver finding)
Sunday, April 19, 2009
Saturday, April 18, 2009
Failure to Disclose: Expert witness affidavit struck
Texas Supreme Court applies rule that undisclosed witness may not testify to expert affidavit in no-evidence summary judgment proceeding.
Fort Brown Villas III Cond Ass'n. v. Gillenwater, (Tex. 2009)
No. 07-1028 (Tex. Apr. 17, 2009)(premises liability suit, exclusion of evidence not produced in discovery, witness exclusion, undesignated witness, mandatory exclusion at trial vs. in relation to summary judgment)(untimely disclosed expert witness excluded from no-evidence summary judgment proceeding)(affidavit of expert witness excluded from summary judgment response because not timely disclosed under the discovery control plan)
TO WIT:
Under Rule 193.6, discovery that is not timely disclosed and witnesses that are not timely identified are inadmissible as evidence. Tex. R. Civ. P. 193.6(a). A party who fails to timely designate an expert has the burden of establishing good cause or a lack of unfair surprise or prejudice before the trial court may admit the evidence. Tex. R. Civ. P. 193.6(b). “A trial court’s exclusion of an expert who has not been properly designated can be overturned only upon a finding of abuse of discretion.” Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994) (citing Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986)).
Before the no-evidence motion for summary judgment was introduced to Texas trial practice, courts did not apply evidentiary sanctions and exclusions for failure to timely designate an expert witness in a summary judgment proceeding. See, e.g., State v. Roberts, 882 S.W.2d 512, 514 (Tex. App.—Austin 1994, no writ) (“Discovery rules and sanctions for failure to designate expert witnesses do not apply to summary judgment proceedings.”); see also Purvis Oil Corp. v. Hillin, 890 S.W.2d 931, 939–40 (Tex. App.—El Paso 1994, no writ); Gandara v. Novasad, 752 S.W.2d 740, 743 (Tex. App.—Corpus Christi 1988, no writ). However, in 1997, the no-evidence summary judgment motion was introduced to the Texas Rules of Civil Procedure as Rule 166a(i),[1] and in 1999, pretrial discovery rules were amended to include evidentiary exclusions under Rule 193.6. Id. at §193.6.[2]
Since that time, most courts of appeals have applied Rule 193.6 to summary judgment proceedings. See Thompson v. King, 2007 WL 1064078, *2 (Tex. App.—Tyler Apr. 11, 2007, pet denied) (mem. op.); Blake v. Dorado, 211 S.W.3d 429, 432 (Tex. App.—El Paso 2006, no pet.); Chau v. Riddle, 212 S.W.3d 699, 704–05 (Tex. App.—Houston [1st Dist.] 2006), rev’d on other grounds, 254 S.W.3d 453, 455 (Tex. 2008); Cunningham v. Columbia/St. David’s Healthcare Sys., L.P., 185 S.W.3d 7, 12–13 (Tex. App.—Austin 2006, no pet.); F.W. Indus., Inc. v. McKeehan, 198 S.W.3d 217, 221 (Tex. App.—Eastland 2005, no pet.); Villegas v. Tex. Dep’t. of Transp., 120 S.W.3d 26, 34–35 (Tex. App.—San Antonio 2003, pet. denied); Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 274 (Tex. App.—Austin 2002, pet. denied). But see Alaniz v. Hoyt, 105 S.W.3d 330, 340 (Tex. App.—Corpus Christi 2003, no pet.); Johnson v. Fuselier, 83 S.W.3d 892, 897–98 (Tex. App.—Texarkana 2002, no pet.) (both declining to apply Rule 193.6 to a summary judgment proceeding).
Because we have already held that evidentiary rules apply equally in trial and summary judgment proceedings, Longoria v. United Blood Services, 938 S.W.2d 29, 30 (Tex. 1995), we also hold that the evidentiary exclusion under Rule 193.6 applies equally.Our conclusion is based on the changes made to the pretrial discovery rules and the introduction of the no-evidence motion for summary judgment. The former pretrial discovery rules established a fluid deadline for discovery disclosure, which could be modified based on a change in the date of trial. Ersek, 69 S.W.3d at 272.
Thus, it was possible that an exclusionary rule based on an untimely disclosure used at the summary judgment stage could exclude evidence that would later be admissible at trial. Id. at 272–73. However, the new discovery rules establish a date certain for the completion of discovery, which depends on the discovery plan level and not on the trial date. See id. at 273; see also Tex. R. Civ. P. 190.2–.4 (providing specific time periods for the end of discovery, depending on the discovery plan level).
Under the new rules, there is no longer a concern that discovery will be incomplete at the summary judgment stage. See Ersek, 69 S.W.3d at 273–74. In fact, the no-evidence rule, by its very language, is to be used following discovery. Tex. R. Civ. P. 166a(i) (“After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence . . . .”) (emphasis added).
Combined with the no-evidence motion for summary judgment rule, the “hard deadline” established by the pretrial discovery rules ensures that the evidence presented at the summary judgment stage and at the trial stage remains the same. See id.; Tex. R. Civ. P. 190.3. Accordingly, the 193.6 exclusionary rule applies equally to both proceedings.
Here, Gillenwater did not timely disclose his expert pursuant to the deadline provided for in the agreed scheduling order and subsequent extension agreements. The trial court struck the expert’s affidavit and did not consider it in granting the summary judgment. ___ S.W.3d at ___.
Because Rule 193.6 provides for the exclusion of an untimely expert affidavit, we hold that the trial court did not abuse its discretion in striking it.[3] We also hold that Gillenwater failed to satisfy his burden of establishing good cause or a lack of unfair surprise or prejudice against Fort Brown. See Tex. R. Civ. P. 193.6(b). Gillenwater did not designate its expert until three days before the end of discovery and more than five months after the expert designation deadline.Having held that the expert’s affidavit was properly excluded, we must review the remaining evidence to determine whether the trial court appropriately granted Fort Brown’s motion for summary judgment.
FORT BROWN VILLAS III CONDOMINIUM ASSOCIATION, INC. D/B/A FORT BROWN CONDOSHARES AND LRI MANAGEMENT, INC. v. COY GILLENWATER; from Cameron County; 13th district (13-06-00478-CV, ___ SW3d ___, 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 renders judgment.
Per Curiam Opinion (Justice Johnson not sitting)
RELATED CONCEPTS: Discovery disputes undesignated undisclosed witnesses exclusion of evidence motion to strike witness admission exclusion of expert witness testimony
Fort Brown Villas III Cond Ass'n. v. Gillenwater, (Tex. 2009)
No. 07-1028 (Tex. Apr. 17, 2009)(premises liability suit, exclusion of evidence not produced in discovery, witness exclusion, undesignated witness, mandatory exclusion at trial vs. in relation to summary judgment)(untimely disclosed expert witness excluded from no-evidence summary judgment proceeding)(affidavit of expert witness excluded from summary judgment response because not timely disclosed under the discovery control plan)
TO WIT:
Under Rule 193.6, discovery that is not timely disclosed and witnesses that are not timely identified are inadmissible as evidence. Tex. R. Civ. P. 193.6(a). A party who fails to timely designate an expert has the burden of establishing good cause or a lack of unfair surprise or prejudice before the trial court may admit the evidence. Tex. R. Civ. P. 193.6(b). “A trial court’s exclusion of an expert who has not been properly designated can be overturned only upon a finding of abuse of discretion.” Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994) (citing Morrow v. H.E.B., Inc., 714 S.W.2d 297, 298 (Tex. 1986)).
Before the no-evidence motion for summary judgment was introduced to Texas trial practice, courts did not apply evidentiary sanctions and exclusions for failure to timely designate an expert witness in a summary judgment proceeding. See, e.g., State v. Roberts, 882 S.W.2d 512, 514 (Tex. App.—Austin 1994, no writ) (“Discovery rules and sanctions for failure to designate expert witnesses do not apply to summary judgment proceedings.”); see also Purvis Oil Corp. v. Hillin, 890 S.W.2d 931, 939–40 (Tex. App.—El Paso 1994, no writ); Gandara v. Novasad, 752 S.W.2d 740, 743 (Tex. App.—Corpus Christi 1988, no writ). However, in 1997, the no-evidence summary judgment motion was introduced to the Texas Rules of Civil Procedure as Rule 166a(i),[1] and in 1999, pretrial discovery rules were amended to include evidentiary exclusions under Rule 193.6. Id. at §193.6.[2]
Since that time, most courts of appeals have applied Rule 193.6 to summary judgment proceedings. See Thompson v. King, 2007 WL 1064078, *2 (Tex. App.—Tyler Apr. 11, 2007, pet denied) (mem. op.); Blake v. Dorado, 211 S.W.3d 429, 432 (Tex. App.—El Paso 2006, no pet.); Chau v. Riddle, 212 S.W.3d 699, 704–05 (Tex. App.—Houston [1st Dist.] 2006), rev’d on other grounds, 254 S.W.3d 453, 455 (Tex. 2008); Cunningham v. Columbia/St. David’s Healthcare Sys., L.P., 185 S.W.3d 7, 12–13 (Tex. App.—Austin 2006, no pet.); F.W. Indus., Inc. v. McKeehan, 198 S.W.3d 217, 221 (Tex. App.—Eastland 2005, no pet.); Villegas v. Tex. Dep’t. of Transp., 120 S.W.3d 26, 34–35 (Tex. App.—San Antonio 2003, pet. denied); Ersek v. Davis & Davis, P.C., 69 S.W.3d 268, 274 (Tex. App.—Austin 2002, pet. denied). But see Alaniz v. Hoyt, 105 S.W.3d 330, 340 (Tex. App.—Corpus Christi 2003, no pet.); Johnson v. Fuselier, 83 S.W.3d 892, 897–98 (Tex. App.—Texarkana 2002, no pet.) (both declining to apply Rule 193.6 to a summary judgment proceeding).
Because we have already held that evidentiary rules apply equally in trial and summary judgment proceedings, Longoria v. United Blood Services, 938 S.W.2d 29, 30 (Tex. 1995), we also hold that the evidentiary exclusion under Rule 193.6 applies equally.Our conclusion is based on the changes made to the pretrial discovery rules and the introduction of the no-evidence motion for summary judgment. The former pretrial discovery rules established a fluid deadline for discovery disclosure, which could be modified based on a change in the date of trial. Ersek, 69 S.W.3d at 272.
Thus, it was possible that an exclusionary rule based on an untimely disclosure used at the summary judgment stage could exclude evidence that would later be admissible at trial. Id. at 272–73. However, the new discovery rules establish a date certain for the completion of discovery, which depends on the discovery plan level and not on the trial date. See id. at 273; see also Tex. R. Civ. P. 190.2–.4 (providing specific time periods for the end of discovery, depending on the discovery plan level).
Under the new rules, there is no longer a concern that discovery will be incomplete at the summary judgment stage. See Ersek, 69 S.W.3d at 273–74. In fact, the no-evidence rule, by its very language, is to be used following discovery. Tex. R. Civ. P. 166a(i) (“After adequate time for discovery, a party without presenting summary judgment evidence may move for summary judgment on the ground that there is no evidence . . . .”) (emphasis added).
Combined with the no-evidence motion for summary judgment rule, the “hard deadline” established by the pretrial discovery rules ensures that the evidence presented at the summary judgment stage and at the trial stage remains the same. See id.; Tex. R. Civ. P. 190.3. Accordingly, the 193.6 exclusionary rule applies equally to both proceedings.
Here, Gillenwater did not timely disclose his expert pursuant to the deadline provided for in the agreed scheduling order and subsequent extension agreements. The trial court struck the expert’s affidavit and did not consider it in granting the summary judgment. ___ S.W.3d at ___.
Because Rule 193.6 provides for the exclusion of an untimely expert affidavit, we hold that the trial court did not abuse its discretion in striking it.[3] We also hold that Gillenwater failed to satisfy his burden of establishing good cause or a lack of unfair surprise or prejudice against Fort Brown. See Tex. R. Civ. P. 193.6(b). Gillenwater did not designate its expert until three days before the end of discovery and more than five months after the expert designation deadline.Having held that the expert’s affidavit was properly excluded, we must review the remaining evidence to determine whether the trial court appropriately granted Fort Brown’s motion for summary judgment.
FORT BROWN VILLAS III CONDOMINIUM ASSOCIATION, INC. D/B/A FORT BROWN CONDOSHARES AND LRI MANAGEMENT, INC. v. COY GILLENWATER; from Cameron County; 13th district (13-06-00478-CV, ___ SW3d ___, 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 renders judgment.
Per Curiam Opinion (Justice Johnson not sitting)
RELATED CONCEPTS: Discovery disputes undesignated undisclosed witnesses exclusion of evidence motion to strike witness admission exclusion of expert witness testimony
April 2009 Texas Supreme Court Opinions (Tex. 2009)
April 17, 2009 Tex. Decisions
In Re Gulf Exploration, (Tex. 2009)
No 07-0055 (Tex. Apr. 17, 2009)(Brister) (arbitration mandamus, mandamus against order compelling arbitration as opposed to order denying arbitration)
IN RE GULF EXPLORATION, LLC, ET AL.; from Midland County; 11th district (11-06-00244-CV, 211 SW3d 828, 11-30-06). The Court conditionally grants the petition for writ of mandamus. Justice Scott Brister delivered the opinion of the Court.
Mann Frankfort Stein & Lipp Advisors v. Fielding, (Tex. 2009)
No. 07-0490 (Tex. Apr. 17, 2009)(Johnson) (enforceability of covenant not to compete, at will employment, confidentiality)
MANN FRANKFORT STEIN & LIPP ADVISORS, INC., MFSL GP, L.L.C., AND MFSL EMPLOYEE INVESTMENTS, LTD. v. BRENDAN J. FIELDING; from Harris County; 1st district (01-05-01080-CV, 263 SW3d 232, 05-03-07). The Court reverses the court of appeals' judgment and renders judgment.
Justice Phil Johnson delivered the opinion of the Court.
Justice Nathan Hecht delivered a concurring opinion
Tanner v. Nationwide Mutual Fire Ins. Co., (Tex. 2009)
No. 07-0760 (Tex. Apr. 21, 2009)(Willett) (insurance coverage dispute, intentional injury exclusion) GREG TANNER AND MARIBEL TANNER, INDIVIDUALLY AND AS NEXT FRIENDS OF K.T. AND R.T., MINOR CHILDREN v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY; from Caldwell County; 11th district (11-05-00371-CV, 232 SW3d 330, 08-09-07) The Court reverses the court of appeals' judgment and renders judgment.
Justice Don R. Willett delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Medina, Justice Green, and Justice Johnson joined.
Justice Brister delivered a dissenting opinion
Fort Brown Villas III Condo Ass'n. v. Gillenwater, (Tex. 2009)
No. 07-1028 (Tex. Apr. 17, 2009)(premises liability suit, exclusion of evidence not produced in discovery, witness exclusion, undesignated witness, mandatory exclusion at trial vs. in relation to summary judgment)(untimely disclosed expert witness excluded from no-evidence summary judgment proceeding)(affidavit of expert witness excluded from summary judgment response because not timely disclosed under the discovery control plan)
FORT BROWN VILLAS III CONDOMINIUM ASSOCIATION, INC. D/B/A FORT BROWN CONDOSHARES AND LRI MANAGEMENT, INC. v. COY GILLENWATER; from Cameron County; 13th district (13-06-00478-CV, ___ SW3d ___, 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 renders judgment.
Per Curiam Opinion (Justice Johnson not sitting)
April 3, 2009 Tex. Sup. Ct. Opinions
Entergy Gulf States, Inc. v. Summers (Tex. 2009)
No. 05-0272 (Tex. Apr. 3, 2009)(Substitute opinion by Justice Paul Green) (premises owner as general contractor for workers compensation exclusive remedy purposes, industrial plants, industrial accidents, refinery explosion)
ENTERGY GULF STATES, INC. v. JOHN SUMMERS; from Jefferson County; 9th district (09-04-00152-CV, ___ SW3d ___, 12-30-04) The Court reverses the court of appeals' judgment and renders judgment.Justice Green delivered the opinion of the Court, in which Justice Wainwright and Justice Brister joined, and in Parts I, II, III, IV, V, VI, VIII and IX of which Justice Hecht joined, and in Parts I, II, III, IV, V, VI, VII, and IX of which Justice Johnson joined, and in Parts I, II, III, VI, VII, and IX of which Justice Willett joined.
Justice Hecht delivered a concurring opinion of the Court.
Justice Willett delivered a concurring opinion.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Medina joined.
Hcbeck, Ltd. v. Rice, (Tex. 2009)
No. 06-0418 (Tex. Apr. 3, 2009)(Opinion by Justice Paul Green)(worker's compensation, exclusive remedy defense, extent to which a general contractor must “provide” workers’ compensation insurance under the Act to qualify for statutory employer status and the resulting immunity from the work-related claims of a subcontractor’s employees)
HCBECK, LTD. v. CHARLES RICE; from Tarrant County; 2nd district (02-05-00239-CV, ___ SW3d ___, 04-06-06) The Court reverses the court of appeals' judgment and renders judgment.
Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, and Justice Brister joined, and in Parts I, II, III, IV, V, and VII of which Justice Willett joined.
Justice Johnson delivered a dissenting opinion, in which Justice Medina joined. (Justice O'Neill not sitting)
Ford Motor Co. v. Castillo, (Tex. 2009)
No. 06-0875 (Tex. 2009)(Phil Johnson)(products liability defendant entitled to opportunity to conduct discovery on affirmative defenses to breach of settlement claim based on suspicion of improper juror conduct) (Ford given chance to show it was justified in backing out of settlement agreement because of allegedly misleading message from presiding jury regarding damages, which prompted settlement)
FORD MOTOR COMPANY v. EZEQUIEL CASTILLO, ET AL.; from Cameron County; 13th district (13-04-00638-CV, 200 SW3d 217, 06-08-06) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Johnson delivered the opinion of the Court.
Justice Wainwright delivered a concurring opinion, in which Justice Medina joined.
SWBT v. Harris County Toll Road Authority, (Tex. 2009)
No. 06-0933 (Tex. 2009)(Jefferson)(eminent domain, county entity immune to claim for reimbursement of costs of telephone line relocation necessitated by toll road project. SWBT has no vested property interest in use of public way for transmission equipment). SOUTHWESTERN BELL TELEPHONE, L.P., D/B/A SBC TEXAS v. HARRIS COUNTY TOLL ROAD AUTHORITY AND HARRIS COUNTY; from Harris County; 1st district (01-05-00668-CV, 263 SW3d 48, 09-14-06) The Court affirms the court of appeals' judgment.
Chief Justice Jefferson delivered the opinion of the Court.
In Re Gulf Exploration, (Tex. 2009)
No 07-0055 (Tex. Apr. 17, 2009)(Brister) (arbitration mandamus, mandamus against order compelling arbitration as opposed to order denying arbitration)
IN RE GULF EXPLORATION, LLC, ET AL.; from Midland County; 11th district (11-06-00244-CV, 211 SW3d 828, 11-30-06). The Court conditionally grants the petition for writ of mandamus. Justice Scott Brister delivered the opinion of the Court.
Mann Frankfort Stein & Lipp Advisors v. Fielding, (Tex. 2009)
No. 07-0490 (Tex. Apr. 17, 2009)(Johnson) (enforceability of covenant not to compete, at will employment, confidentiality)
MANN FRANKFORT STEIN & LIPP ADVISORS, INC., MFSL GP, L.L.C., AND MFSL EMPLOYEE INVESTMENTS, LTD. v. BRENDAN J. FIELDING; from Harris County; 1st district (01-05-01080-CV, 263 SW3d 232, 05-03-07). The Court reverses the court of appeals' judgment and renders judgment.
Justice Phil Johnson delivered the opinion of the Court.
Justice Nathan Hecht delivered a concurring opinion
Tanner v. Nationwide Mutual Fire Ins. Co., (Tex. 2009)
No. 07-0760 (Tex. Apr. 21, 2009)(Willett) (insurance coverage dispute, intentional injury exclusion) GREG TANNER AND MARIBEL TANNER, INDIVIDUALLY AND AS NEXT FRIENDS OF K.T. AND R.T., MINOR CHILDREN v. NATIONWIDE MUTUAL FIRE INSURANCE COMPANY; from Caldwell County; 11th district (11-05-00371-CV, 232 SW3d 330, 08-09-07) The Court reverses the court of appeals' judgment and renders judgment.
Justice Don R. Willett delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Medina, Justice Green, and Justice Johnson joined.
Justice Brister delivered a dissenting opinion
Fort Brown Villas III Condo Ass'n. v. Gillenwater, (Tex. 2009)
No. 07-1028 (Tex. Apr. 17, 2009)(premises liability suit, exclusion of evidence not produced in discovery, witness exclusion, undesignated witness, mandatory exclusion at trial vs. in relation to summary judgment)(untimely disclosed expert witness excluded from no-evidence summary judgment proceeding)(affidavit of expert witness excluded from summary judgment response because not timely disclosed under the discovery control plan)
FORT BROWN VILLAS III CONDOMINIUM ASSOCIATION, INC. D/B/A FORT BROWN CONDOSHARES AND LRI MANAGEMENT, INC. v. COY GILLENWATER; from Cameron County; 13th district (13-06-00478-CV, ___ SW3d ___, 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 renders judgment.
Per Curiam Opinion (Justice Johnson not sitting)
April 3, 2009 Tex. Sup. Ct. Opinions
Entergy Gulf States, Inc. v. Summers (Tex. 2009)
No. 05-0272 (Tex. Apr. 3, 2009)(Substitute opinion by Justice Paul Green) (premises owner as general contractor for workers compensation exclusive remedy purposes, industrial plants, industrial accidents, refinery explosion)
ENTERGY GULF STATES, INC. v. JOHN SUMMERS; from Jefferson County; 9th district (09-04-00152-CV, ___ SW3d ___, 12-30-04) The Court reverses the court of appeals' judgment and renders judgment.Justice Green delivered the opinion of the Court, in which Justice Wainwright and Justice Brister joined, and in Parts I, II, III, IV, V, VI, VIII and IX of which Justice Hecht joined, and in Parts I, II, III, IV, V, VI, VII, and IX of which Justice Johnson joined, and in Parts I, II, III, VI, VII, and IX of which Justice Willett joined.
Justice Hecht delivered a concurring opinion of the Court.
Justice Willett delivered a concurring opinion.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Medina joined.
Hcbeck, Ltd. v. Rice, (Tex. 2009)
No. 06-0418 (Tex. Apr. 3, 2009)(Opinion by Justice Paul Green)(worker's compensation, exclusive remedy defense, extent to which a general contractor must “provide” workers’ compensation insurance under the Act to qualify for statutory employer status and the resulting immunity from the work-related claims of a subcontractor’s employees)
HCBECK, LTD. v. CHARLES RICE; from Tarrant County; 2nd district (02-05-00239-CV, ___ SW3d ___, 04-06-06) The Court reverses the court of appeals' judgment and renders judgment.
Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, and Justice Brister joined, and in Parts I, II, III, IV, V, and VII of which Justice Willett joined.
Justice Johnson delivered a dissenting opinion, in which Justice Medina joined. (Justice O'Neill not sitting)
Ford Motor Co. v. Castillo, (Tex. 2009)
No. 06-0875 (Tex. 2009)(Phil Johnson)(products liability defendant entitled to opportunity to conduct discovery on affirmative defenses to breach of settlement claim based on suspicion of improper juror conduct) (Ford given chance to show it was justified in backing out of settlement agreement because of allegedly misleading message from presiding jury regarding damages, which prompted settlement)
FORD MOTOR COMPANY v. EZEQUIEL CASTILLO, ET AL.; from Cameron County; 13th district (13-04-00638-CV, 200 SW3d 217, 06-08-06) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Johnson delivered the opinion of the Court.
Justice Wainwright delivered a concurring opinion, in which Justice Medina joined.
SWBT v. Harris County Toll Road Authority, (Tex. 2009)
No. 06-0933 (Tex. 2009)(Jefferson)(eminent domain, county entity immune to claim for reimbursement of costs of telephone line relocation necessitated by toll road project. SWBT has no vested property interest in use of public way for transmission equipment). SOUTHWESTERN BELL TELEPHONE, L.P., D/B/A SBC TEXAS v. HARRIS COUNTY TOLL ROAD AUTHORITY AND HARRIS COUNTY; from Harris County; 1st district (01-05-00668-CV, 263 SW3d 48, 09-14-06) The Court affirms the court of appeals' judgment.
Chief Justice Jefferson delivered the opinion of the Court.
Saturday, April 11, 2009
Supreme Distrust: Texas High Court Lets Ford Go After Jurors for Mis-Signalling
Supremos opine trial court should have let product-liability defendant investigate jurors and develop evidence to support excuse for breaching settlement agreement made while the jury was deliberating. Agreement was made to avert higher damages after jury sent note implying as much.
Judgment thrown out and case remanded to the trial court to allow plaintiff to interrogate jurors under oath. Opinion adds another wrinkle to Texas Supreme Court's track record of undoing jury verdicts, except that there was not even a verdict yet to overturn in this case, as the judgment merely enforced the parties' settlement agreement.
Ford Motor Co. v. Castillo, (Tex 2009)
No. 06-0875 (Tex. Apr. 3, 2009)(Johnson)(defendant entitled to opportunity to conduct discovery on affirmative defenses to breach of settlement claim based on improper juror conduct)(Ford given chance to show it was justified in backing out of settlement agreement because of allegedly misleading message from jury that precipitated settlement)
FROM THE OPINION:
Judgment thrown out and case remanded to the trial court to allow plaintiff to interrogate jurors under oath. Opinion adds another wrinkle to Texas Supreme Court's track record of undoing jury verdicts, except that there was not even a verdict yet to overturn in this case, as the judgment merely enforced the parties' settlement agreement.
Ford Motor Co. v. Castillo, (Tex 2009)
No. 06-0875 (Tex. Apr. 3, 2009)(Johnson)(defendant entitled to opportunity to conduct discovery on affirmative defenses to breach of settlement claim based on improper juror conduct)(Ford given chance to show it was justified in backing out of settlement agreement because of allegedly misleading message from jury that precipitated settlement)
FROM THE OPINION:
Ford Motor Company and Ezequiel Castillo, the plaintiff in a products liability action, settled while the jury was deliberating. The settlement occurred after the presiding juror sent a note to the judge asking the maximum amount that could be awarded. Based on later discussions with jurors, Ford suspected that outside influence may have been brought to bear on the presiding juror. After Ford sought, but was refused, permission to obtain discovery on the outside influence question, it withdrew its consent to the settlement. Castillo sought summary judgment against Ford for breach of the settlement agreement. Ford’s response renewed its request for discovery, but the trial court rendered summary judgment for Castillo on the breach of settlement agreement claim. We hold that the trial court erred by refusing to allow discovery on Castillo’s action for breach of contract, including whether there was any outside influence on the jury. We reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings consistent with this opinion.
FORD MOTOR COMPANY v. EZEQUIEL CASTILLO, ET AL.; from Cameron County; 13th district (13-04-00638-CV, 200 SW3d 217, 06-08-06) The Court reverses the court of appeals' judgment and remands the case to the trial court.Justice Johnson delivered the opinion of the Court
Justice Wainwright delivered a concurring opinion, in which Justice Medina joined.
Workers Comp: Exclusive Remedy Against Supreme Court's Anti-Worker Jurisprudence May Be the Texas Legislature
KEEPING REFINERY BLASTS AND OTHER INDUSTRIAL MISHAPS AFFORDABLE
Texas Supreme Court re-issues Entergy opinion protecting industrial plant owners from lawsuits for negligence and keeping cost of injured and dead workers low.
Entergy Gulf States, Inc. v. Summers, (Tex. 2009)
No. 05-0272 (Tex. 2009)(Substitute opinion by Green) (premises owner as general contractor for workers compensation exclusive remedy purposes)
FROM THE ENCORE OPINION:
Rehearing was granted in this case and our previous opinion was withdrawn. We now substitute the following in its place. The judgment remains unchanged.
* * * * *
In this workers’ compensation case, we decide whether a premises owner that contracts for the performance of work on its premises, and provides workers’ compensation insurance to the contractor’s employees pursuant to that contract, is entitled to the benefit of the exclusive remedy defense generally afforded only to employers by the Texas Workers’ Compensation Act. While the Act specifically confers statutory employer status on general contractors who qualify by providing workers’ compensation insurance for their subcontractors’ employees, it says nothing about whether premises owners who act as their own general contractor are also entitled to employer status, and thus the exclusive remedy defense. We hold that the exclusive remedy defense for qualifying general contractors is, likewise, available to premises owners who meet the Act’s definition of “general contractor,” and who also provide workers’ compensation insurance to lower-tier subcontractors’ employees. Because we conclude that Entergy Gulf States, Inc. meets the definition of “general contractor” under the Act, and because Entergy otherwise qualifies under the Act as having provided workers’ compensation insurance under its written agreement with International Maintenance Corporation (IMC), it is entitled to the exclusive remedy defense against the negligence claims brought by IMC’s employee, John Summers. We reverse the court of appeals’ judgment and render judgment for Entergy.
ENTERGY GULF STATES, INC. v. JOHN SUMMERS; from Jefferson County; 9th district (09-04-00152-CV, ___ SW3d ___, 12-30-04)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Green delivered the opinion of the Court, in which Justice Wainwright and Justice Brister joined, and in Parts I, II, III, IV, V, VI, VIII and IX of which Justice Hecht joined, and in Parts I, II, III, IV, V, VI, VII, and IX of which Justice Johnson joined, and in Parts I, II, III, VI, VII, and IX of which Justice Willett joined.
Justice Hecht delivered a concurring opinion of the Court. Justice Willett delivered a concurring opinion. Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Medina joined.
CONTEMPORANEOUSLY ISSUED:
Hcbeck, Ltd. v. Rice (Tex 2009)
No. 06-0418 (Tex. 2009)(Green) (worker's compensation, exclusive remedy defense, extent to which a general contractor must “provide” workers’ compensation insurance under the Act to qualify for statutory employer status and the resulting immunity from the work-related claims of a subcontractor’s employees)
HCBECK, LTD. v. CHARLES RICE; from Tarrant County; 2nd district (02-05-00239-CV, ___ SW3d ___, 04-06-06) The Court reverses the court of appeals' judgment and renders judgment.
Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, and Justice Brister joined, and in Parts I, II, III, IV, V, and VII of which Justice Willett joined. Justice Johnson delivered a dissenting opinion, in which Justice Medina joined. (Justice O'Neill not sitting)
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