June 2010 Texas Supreme Court Opinions

JUNE DECISIONS OF THE TEX. SUP. CT. (Tex. 2010)

Opinions Released June 11, 2010

Waffle House, Inc. v. Williams, No. 07-0205 (Tex. Jun. 11, 2010)(Willett) (sexual harassment at work)(state statutory cause of action under anti-discrimination law preempts common-law claim)
After being sexually harassed by a coworker, Cathie Williams sued her employer, Waffle House, Inc. for (1) sexual harassment under the Texas Commission on Human Rights Act (TCHRA),1 and (2) common-law negligent supervision and retention. The jury found for Williams on both claims, and she elected to recover on the common-law claim, which afforded a far greater monetary recovery.
This case poses several issues, including this one of first impression: may a plaintiff recover negligence damages for harassment covered by the TCHRA? Our view is that the TCHRA, the Legislature’s specific and tailored anti-harassment remedy, is preemptive when the complained-of negligence is entwined with the complained-of harassment.
Here, the alleged negligence is rooted in facts inseparable from those underlying the alleged harassment. We do not believe the Legislature’s comprehensive remedial scheme allows aggrieved employees to proceed on dual tracks — one statutory and one common-law, with inconsistent procedures, standards, elements, defenses, and remedies.
The TCHRA confers both the right to be free from sexual harassment and the remedy to combat it. Where the gravamen of a plaintiff’s case is TCHRA-covered harassment, the Act forecloses common-law theories predicated on the same underlying sexual-harassment facts. The root of Williams’ negligence claim is that Waffle House kept around a known harasser, but this claim does not arise from separate, non-harassment conduct; it is premised on the same conduct that the TCHRA deems unlawful.
As the complained-of acts constitute actionable harassment under the TCHRA, they cannot moonlight as the basis for a negligence claim, a claim that presents far different standards, procedures, elements, defenses, and remedies. It is untenable that the Legislature would craft an elaborate anti-harassment regime so easily circumvented. The court of appeals erred in affirming the trial-court judgment on Williams’ common-law claim.
Waffle House argued in the court of appeals that the TCHRA should also fail for various reasons if the common-law claim were reversed. The court of appeals did not reach the issues concerning the statutory claim,82 nor were these issues briefed to us. Accordingly, the court of appeals’ judgment is reversed, and the case is remanded to that court to address the statutory sexual-harassment issues raised by Waffle House.
WAFFLE HOUSE, INC. v. CATHIE WILLIAMS; from Tarrant County; 2nd district (02‑05‑00373‑CV, ___
SW3d ___, 02‑01‑07)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Willett delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Green, Justice Johnson, and Justice Guzman joined. [pdf]
Justice O'Neill delivered a dissenting opinion, in which Justice Medina joined. [pdf]
View Electronic Briefs in 07-0205 WAFFLE HOUSE, INC. v. WILLIAMS

State Farm Lloyds v. Page, No. 08-0799 (Tex. June 11, 2010)(O'Neill)(insurance coverage, mold
damage)
Once again we are called upon to interpret the Texas Standard Homeowner’s Policy—Form B, in this instance to decide whether it affords coverage for mold contamination resulting from plumbing leaks. We hold that when a plumbing leak results in mold contamination, the policy covers mold damage to personal property but not to the dwelling. Accordingly, we reverse the court of appeals’ judgment in part, affirm in part, and remand to the trial court for further proceedings.
STATE FARM LLOYDS AND ERIN STRACHAN v. WANDA M. PAGE;
from Johnson County; 10th district (10‑07‑00228‑CV, 259 SW3d 257, 06‑11‑08)
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court.
Justice O'Neill delivered the opinion of the Court. [pdf]
View Electronic Briefs in 08-0799 STATE FARM LLOYDS v. PAGE

Tx. Dep't of Criminal Justice v. McBride, No. 08-0832 (Tex. June 11, 2010)(Jefferson)
(no waiver of governmental/ sovereign immunity based on defendant's request for attorney's
fees)
The Department denied McBride’s allegations, asserted sovereign immunity, and requested attorney’s fees. The trial court granted the Department’s plea and dismissed the case, but the court of appeals reversed, holding that “the Department’s claim for attorney’s fees is considered a claim for affirmative relief that waives sovereign immunity.”1 ___ S.W.3d ___. We disagree.
In this case, McBride, not the Department, filed suit. In its answer, the Department denied McBride’s allegations and prayed for attorney’s fees and costs incurred in defending the case. Other than fees and costs, the Department asserted no claims for relief. Unlike Reata, in which the City injected itself into the litigation process and sought damages, the Department’s request for attorney’s fees was purely defensive in nature, unconnected to any claim for monetary relief. When that is the case, a request for attorney’s fees incurred in defending a claim does not waive immunity under Reata, and the court of appeals incorrectly held otherwise.
TEXAS DEPARTMENT OF CRIMINAL JUSTICE v. KIRK WAYNE MCBRIDE, SR.; from Bee County; 13th district (13‑06‑00472‑CV, ___ SW3d ___, 07‑31‑08)
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 that court.
Chief Justice Jefferson delivered the opinion of the Court. [pdf]
View Electronic Briefs 08-0832 TEX. DEPT. OF CRIMINAL JUSTICE v. MCBRIDE

Serros de Gonzalez v. Guilbot, No. 08-0961 (Tex. Jun. 11, 2010)(Willett)(remand, motions to recuse)
This appeal concerns two issues: (1) the procedure required to revest a state court with jurisdiction after remand from
federal court, and (2) the definition of “tertiary recusal motion” in Texas Civil Practice and Remedies Code section 30.016.
We agree with the court of appeals that the hand-filing of a remand order in state court is sufficient to transfer jurisdiction back to state court. However, the court of appeals erred in holding that section 30.016’s reference to a “tertiary recusal motion” is limited to a third motion filed by the same party against the same judge. Accordingly, we affirm the court of appeals’ judgment in part and reverse it in part, and remand to that court with instructions.
he court of appeals was right on remand but wrong on recusal. Plaintiffs’ hand-delivery of the certified remand order from the federal district court to the clerk of the state court was sufficient to revest jurisdiction in the state court. We decline Defendants’ invitation to add a measure of rigidity into section 1447(c) that simply is not there. As for recusal, a tertiary recusal motion is a third motion filed by the same party against any judge. That is, the word “third” in section 30.016(a) refers to the motion, not to the judge. Accordingly, we affirm the court of appeals’ judgment in part, reverse it in part, and remand to the court of appeals. The court of appeals shall abate pending a ruling on the motion to recuse Judge Herman. If the motion is denied, the court of appeals shall affirm the trial court’s judgment. If the motion is granted, the court of appeals shall reverse the trial court’s judgment and remand to that court for further proceedings consistent with this opinion.
MARIA DEL CARMEN GUILBOT SERROS DE GONZALEZ, ET AL. v. MIGUEL ANGEL GONZALEZ GUILBOT, CARLOS A. GONZALEZ GUILBOT, AND MARIA ROSA DEL ARENAL DE GONZALEZ; from
Harris County; 14th district (14‑07‑00047‑CV, 267 SW3d 556, 09‑30‑08) 2 petitions
request to take judicial notice dismissed as moot
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to that court.
Justice Willett delivered the opinion of the Court. [pdf]
(Justice Guzman not sitting)
View Electronic Briefs IN THE ESTATE OF MIGUEL ANGEL LUIS GONZALEZ Y VALLEJO v. GUILBOT

UH v. Barth, No. 08-1001 (Tex. June 11, 2010)(per curiam)(jury award in professor's whistleblower suit against state university thrown out)
[I]n State v. Lueck, 290 S.W.3d 876, 883 (Tex. 2009), we held that “the elements of section 554.002(a) can be considered to determine both jurisdiction and liability.” Accordingly, whether Barth’s reports to University officials are good-faith reports of a violation of law to an appropriate law-enforcement authority is a jurisdictional question. Jurisdiction may be raised for the first time on appeal and may not be waived by the parties. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). The University challenges whether the trial court had jurisdiction. Therefore, without hearing oral argument, Tex. R. App. P. 59.1, we reverse and remand to the court of appeals to determine whether, under the analysis set forth in Lueck, Barth’s claims meet the Whistleblower Act’s jurisdictional requirements for suit against a governmental entity and, thus, whether the trial court had jurisdiction over Barth’s suit.
THE UNIVERSITY OF HOUSTON v. STEPHEN BARTH; from Harris County; 1st district (01‑06‑00490‑CV,
265 SW3d 607, 07‑03‑08)
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 that court.
Per Curiam Opinion [pdf]
View Electronic Briefs 08-1001 THE UNIVERSITY OF HOUSTON v. BARTH

Zenith Ins. Co. v. Ayala, No. 09-0292 (Tex. June 11, 2010)(per curiam)(workers comp)
In this workers’ compensation case, the court of appeals concluded that the carrier waived its right to dispute the extent of the claimant’s compensable injury by failing to adhere to Texas Labor Code section 409.021(c)’s sixty-day deadline. __ S.W.3d __. We recently held that the sixty-day period for challenging compensability does not apply to a dispute over extent of injury. State Office of Risk Mgmt. v. Lawton, 295 S.W.3d 646, 649-50 (Tex. 2009). In light of Lawton, we reverse the court of appeals’ judgment and remand this case to the trial court for further proceedings. Because this dispute involves extent of injury, rather than compensability, section 409.021(c)’s sixty-day deadline is inapplicable. Without hearing oral argument, we reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings. Tex. R. App. P. 59.1, 60.2(d).
ZENITH INSURANCE COMPANY v. CARMEN AYALA; from Dallas County; 5th district (05‑08‑00276‑CV,
___ SW3d ___, 02‑26‑09) as supplemented
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]
View Electronic Briefs 09-0292 ZENITH INS. CO. v. AYALA

Debra Lehrmann appointed to Tex. Supreme Court

SUPREME COURT NEWS

Texas Governor Appoints Lehrmann as Justice to the Supreme Court of Texas

[text of press release from Gov's office follows below]

May 28, 2010

AUSTIN – Gov. Rick Perry has appointed Debra Lehrmann of Colleyville as justice to the Supreme Court of Texas effective June 21, 2010 for a term to expire at the next general election.

Lehrmann is judge of the 360th Judicial District Court and a former associate family law judge in Tarrant County with more than 22 years of service. She is chair-elect of the American Bar Association Family Law Section, a member of the Judicial Section of the State Bar of Texas, a fellow of the American and Texas Bar foundations, and a charter member of the Tarrant County Bar Foundation. Lehrmann is a member of the National Association of Judges, Tarrant County Women’s Bar Association, Tarrant County Bar Association, and Tarrant County Family Bar Association. She is also a member of the Eldon B. Mahon Inn of Court and past president of the Fort Worth/Tarrant County Young Lawyers Association. Lehrmann is a commissioner on the Uniform Law Commission, past president of the Texas Chapter of the Association of Family and Conciliatory Courts, former chair of Tarrant County Adoption Day, and a past board member of the Tarrant County Dispute Resolution Services and Tarrant County Community Enrichment Center’s Open Arms program. She received a bachelor’s degree and a law degree from the University of Texas.

May 2010 Texas Supreme Court Decisions

OPINIONS HANDED DOWN BY THE SUPREME COURT OF TEXAS IN MAY 2010

May 28, 2010

Regenia v. Hidalgo, No. 09-0415 (Tex. 2010) (right to raise argument that could not be raised under prior
law)
LEILA REGENIA BROWN HIDALGO v. ALVIN STEVE HIDALGO;
from Dallas County; 5th district (05-06-00966-CV, 279 SW3d 456, 02-25-09)
Should a party who relies on a then-valid procedural argument in the court of appeals be able to assert substantive arguments if this Court invalidates the procedural argument while the case is pending? We answer yes. ...
When Leila briefed her case to the court of appeals, she made a legally meritorious procedural argument that Order 3 was void as untimely. Further, the court of appeals at that time had no reason to reach the substantive merits of a jurisdictionally void order. Due to the timing of events, Leila is confronted with a trial court judgment that she believes is substantively defective, but she has not had the opportunity to have those arguments heard on appeal. In light of a change in the law and in the interest of justice, Leila should be allowed to argue to the court of appeals the substantive reasons she believes the trial court’s judgment was erroneous.
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 [pdf]
View Electronic Briefs in No. 09-0415 HIDALGO v. HIDALGO

Texas Health Insurance Risk Pool v. Sigmundik, No. 09-0772 (Tex. 2010) (reduction ordered in recovery of wrongful death plaintiffs in favor of contractual subrogation rights of insurer who paid medical bill incurred before injured worker died; amount to be determined on remand)
TEXAS HEALTH INSURANCE RISK POOL v. SHARON B. SIGMUNDIK, BENJAMIN J. SIGMUNDIK AND ZACHARY P. SIGMUNDIK, AS THE SOLE AND LEGAL HEIRS AND BENEFICIARIES OF THOMAS M. SIGMUNDIK, DECEASED, AND/OR OF THE ESTATE OF THOMAS M. SIGMUNDIK, DECEASED; OTTO L. MONECKE AND VIRGINIA L. MONECKE;
from Fayette County; 3rd district (03-05-00057-CV, ___ SW3d ___, 07-31-09)
As we noted in Fortis Benefits, “contract rights generally arise from contract language; they do not derive their validity from principles of equity but directly from the parties’ agreement.” 234 S.W.3d at 647. Here, the trial court acknowledged the subrogation provision, quoted it in full, and then denied any distribution of funds based upon the provision. While the trial court was free to exercise some discretion in dividing the settlement funds, it abused its discretion by awarding the Risk Pool nothing. The “made whole” doctrine has no application in this case. Accordingly, in light of our Fortis Benefits decision and without hearing oral argument in this case, we grant the petition for review, reverse the court of appeals’ judgment, and remand to the trial court to determine what portion of the settlement funds should be allocated to the estate. See Tex. R. App. P. 59.1. 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]
View Electronic Briefs in No. 09-0772 TEX. HEALTH INS. RISK POOL v. SIGMUNDIK

May 14, 2010

State of Texas v. $281,430, No. 08-0465 (Tex. May 14, 2010)(O'Neill) (civil forfeiture case, truck driver failed to show entitlement to money hidden in truck and unclaimed by
owner)
THE STATE OF TEXAS v. $281,420.00 IN UNITED STATES CURRENCY; from Hidalgo County; 13th district (13-06-00158-CV, ___ SW3d ___, 04-03-08)
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 [pdf]
View E-Briefs in No. 08-0465 THE STATE OF TEXAS v. $281,420.00 IN UNITED STATES CURRENCY

Travelers Ins. Co. v. Joachim, No. 08-0941 (Tex. May 14, 2010) (Green) (erroneous order dismissing suit after nonsuit with prejudice [instead of without prejudice] held to have res judicata effect in the absence of direct attack by appeal or bill of review)
Texas Supreme Court holds that because trial court has jurisdiction to enter orders dismissing a case with prejudice upon filing of a notice of nonsuit, the trial court’s order in this case was voidable, not void, and subject only to direct attack. There was no direct attack by appeal or bill of review in this case; therefore, the dismissal order became a final determination on the merits for purposes of res judicata, which provides affirmative defense in re-filed suit barring relitigation of the underlying claim). The supreme court reverses and renders judgment dismissing the case with prejudice.
THE TRAVELERS INSURANCE COMPANY (THE AUTOMOBILE INSURANCE COMPANY OF HARTFORD CONNECTICUT) v. BARRY JOACHIM; from Lubbock County; 7th district (07-06-00322-CV, 279 SW3d 812, 09-25-08)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Green delivered the opinion of the Court. [pdf]
See Electronic Briefs in Cause No. 08-0941 THE TRAVELERS INS. CO. v. JOACHIM

May 7, 2010

Eri Consulting Engineers, Inc. v. Swinnea, No. 07-1042 (Tex. May 7, 2010)(Green) (equitable forfeiture as remedy for breach of fiduciary duty)
ERI CONSULTING ENGINEERS, INC. AND LARRY G. SNODGRASS v. J. MARK SWINNEA, BRADY ENVIRONMENTAL, INC., AND MALMEBA COMPANY, LTD.; from Smith County;
12th district (12‑05‑00428‑CV, 236 SW3d 825, 08‑30‑07)
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to that court.
Justice Green delivered the opinion of the Court. [pdf]
See Electronic Briefs in ERI CONSULTING ENGINEERS, INC. v. SWINNEA

Klein, MD and BCM v. Hernandez, No. 08-0453 (Tex. May 7, 2010)(Medina) (medical resident at private state-supported medical school working in public hospital entitled to bring interlocutory appeal of denial of summary judgment motion based on immunity defense)
GEOFFREY KLEIN, M.D. AND BAYLOR COLLEGE OF MEDICINE v. CYNTHIA HERNANDEZ, AS THE PARENT AND NEXT FRIEND OF N.H., A MINOR; from Harris County;
1st district (01‑06‑00569‑CV, 260 SW3d 1, 04‑17‑08) 2 petitions
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to that court.
Justice Medina delivered the opinion of the Court. [pdf]
Justice Willett delivered a concurring opinion. [pdf]
See Electronic Briefs in GEFFREY KLEIN, M.D. and BAYLOR COLLEGE OF MEDICINE v. HERNANDEZ

Zimmerman, MD v. Gonzalez Anaya, No. 08-0580 (Tex. May 7, 2010)(per curiam) (right to interlocutory appeal of medical resident of state-supported medical school; government employee status)
GEOFFREY ZIMMERMAN, M.D. v. WENDY GONZALEZ ANAYA, INDIVIDUALLY AND A/N/F OF CHRISTOPHER GABRIEL HERNANDEZ, DECEASED; from Harris County;
1st district (01‑07‑00570‑CV, ___ SW3d ___, 06‑05‑08)
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 that court.
Per Curiam Opinion [pdf]
See Electronic Briefs in GEOFFREY ZIMMERMAN, M.D. v. ANAYA

Scott and White Memorial Hospital v. Fair, No. 08-0970 (Tex. May 7, 2010)(Jefferson)
(premises liability, ice on premises)
SCOTT AND WHITE MEMORIAL HOSPITAL AND SCOTT, SHERWOOD AND BRINDLEY FOUNDATION v. GARY FAIR AND LINDA FAIR; from Bell County;
3rd district (03‑06‑00211‑CV, ___ SW3d ___, 06‑13‑08)
The Court reverses the court of appeals' judgment in part and renders judgment.
Chief Justice Jefferson delivered the opinion of the Court. [pdf]
See Electronic Briefs in SCOTT AND WHITE MEMORIAL HOSPITAL v. FAIR

In Re Ensco Offshore Int'l Co., No. 09-0317 (Tex. May 7, 2010)(per curiam) (forum non conveniens mandamus granted)
IN RE ENSCO OFFSHORE INTERNATIONAL COMPANY, ENSCO INTERNATIONAL INCORPORATED AND ENSCO OFFSHORE COMPANY, INDIVIDUALLY AND AS SUCCESSOR-IN-INTEREST OF CHILES OFFSHORE, INC.; from Dallas County;
5th district (05‑08‑01092‑CV, ___ SW3d ___, 08‑19‑08)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the writ of mandamus.
Per Curiam Opinion [pdf]
See Electronic Briefs in IN RE ENSCO OFFSHORE INTERNATIONAL CO.

City of Dallas v. Carbajal, No. 09-0427 (Tex. May 7, 2010)(per curiam) (TTCA Tort Claims Act, presuit notice requirement, police report held insufficient to constitute actual notice)
CITY OF DALLAS v. OLIVIA J. CARBAJAL; from Dallas County;
5th district (05-08-00500-CV, 278 SW3d 802, 01-22-09)
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 [pdf]
See Electronic Briefs in CITY OF DALLAS v. CARBAJAL

In Re Odyssey Healthcare, Inc., No. 09-0786 (Tex. May 7, 2010) (per curiam opinion) (arbitration mandamus granted in employment injury case against nonsubscriber employer, challenges to IN RE ODYSSEY HEALTHCARE, INC. AND GEORGE PORTILLO; from El Paso County;8th district (08-09-00174-CV, ___ SW3d ___, 08-12-09) stay order issued October 9, 2009, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the writ of mandamus.
Per Curiam Opinion [pdf]
See Electronic Briefs in IN RE ODYSSEY HEALTHCARE, INC.

APRIL 2010 Texas Supreme Court Decisions

April 23, 2010

Presidio ISD v. Scott (pdf), No. 08-0958 (Tex. Apr. 23, 2010)(Guzman)(education law, teacher disciplinary administrative appeals)
PRESIDIO INDEPENDENT SCHOOL DISTRICT v. ROBERT SCOTT, AS COMMISSIONER OF EDUCATION; from Travis County;
3rd district (03-07-00319-CV, 266 SW3d 531, 08-28-08)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Guzman delivered the opinion of the Court. [pdf]
See Electronic Briefs in PRESIDIO ISD v. ROBERT SCOTT, AS COMMISSIONER OF EDUCATION

April 16, 2010

In Re The John G. and Marie Stella Kenedy Memorial Foundation, No. 04-0607 (Tex. Apr. 16, 2010) (Green)
IN RE THE JOHN G. AND MARIE STELLA KENEDY MEMORIAL FOUNDATION; from Kenedy County;
13th district (13-04-00337-CV, ___ SW3d ___, 07-06-04)
as reinstated
- consolidated for oral argument with -
04-0608 IN RE FROST NATIONAL BANK, FORMER EXECUTOR OF THE ESTATE OF ELENA SUESS KENEDY, DECEASED; FROST NATIONAL BANK AND PABLO SUESS, TRUSTEES OF THE JOHN G. KENEDY, JR. CHARITABLE TRUST; AND THE MISSIONARY OBLATE FATHERS OF TEXAS; from Kenedy County; 13th district (13-04-00339-CV, ___ SW3d ___, 07-06-04)
as reinstated, stay order issued July 8, 2004, lifted
The Court conditionally grants the writs of mandamus.
Justice Green delivered the opinion of the Court. [pdf]
(Justice O'Neill and Justice Guzman not sitting)
See Electronic Briefs in IN RE FROST NAT'L BANK

John G. and Marie Stella Kenedy Memorial Foundation v. Fernandez, No. 08-0528 (Tex. 2010) (Green)
THE JOHN G. AND MARIE STELLA KENEDY MEMORIAL FOUNDATION v. ANN M. FERNANDEZ;
from Nueces County; 13th district (13-06-00170-CV, ___ SW3d ___, 05-22-08)
unopposed motion to expedite dismissed as moot
The Court affirms in part and reverses in part the court of appeals' judgment and renders judgment.
Justice Green delivered the opinion of the Court. [pdf]
(Justice O'Neill and Justice Guzman not sitting)
See Electronic Briefs in 08-0528 THE JOHN G. AND MARIE STELLA KENEDY MEMORIAL FOUND. v. FERNANDEZ

John G. and Marie Stella Kenedy Memorial Foundation v. Fernandez, No. 08-0529 (Tex. Apr. 16, 2010) (Green)
THE JOHN G. AND MARIE STELLA KENEDY MEMORIAL FOUNDATION v. ANN M. FERNANDEZ; from Kenedy County;
13th district (13-06-00539-CV, ___ SW3d ___, 05-22-08)
unopposed motion to expedite dismissed as moot
The Court affirms in part and reverses in part the court of appeals' judgment and renders judgment.
Justice Green delivered the opinion of the Court. [pdf]
(Justice O'Neill and Justice Guzman not sitting)
See Electronic Briefs in THE JOHN G. AND MARIE STELLA KENEDY MEMORIAL FOUND. v. FERNANDEZ

Frost National Bank v. Fernandez, No. 08-0534 (Tex. Apr. 16, 2010)(Green)
FROST NATIONAL BANK, FORMER EXECUTOR OF THE ESTATE OF ELENA SUESS KENEDY, DECEASED, AND FROST NATIONAL BANK AND PABLO SUESS, TRUSTEES OF THE JOHN G. KENEDY, JR. CHARITABLE TRUST v. ANN M. FERNANDEZ; from Kenedy County;
13th district (13-06-00149-CV, 267 SW3d 75, 05-22-08)
unopposed motion to expedite dismissed as moot
The Court affirms in part and reverses in part the court of appeals' judgment and renders judgment.
Justice Green delivered the opinion of the Court. [pdf]
(Justice O'Neill and Justice Guzman not sitting)
See Electronic Briefs in 08-0534 FROST NAT'L BANK v. FERNANDEZ

In Re Lisa Laser USA, Inc., No. 09-0557 (Tex. Apr. 16, 2010)(per curiam)
(forum selection clause enforced by mandamus)
IN RE LISA LASER USA, INC. AND LISA LASER PRODUCTS, OHG.; from Travis County;
3rd district (03-09-00240-CV, ___ SW3d ___, 05-15-09)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the writ of mandamus.
Per Curiam Opinion [pdf]
(Justice Hecht not sitting)
eBriefs N/A

April 9, 2010

Zinc Nacional, S.A. v. Bouche Trucking, Inc., No. 09-0734 (Tex. April 9, 2010)(per curiam)
(negligence case, non-resident defendant did not have minimum contacts with Texas for purposes of establishing specific jurisdiction by using a third-party trucking service to transport its goods through Texas to an out-of-state customer)
ZINC NACIONAL, S.A. v. BOUCHÉ TRUCKING, INC.; from El Paso County; 8th district (08-07-00314-CV, 296 SW3d 763, 07-31-09)
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 [pdf]
See Electronic Briefs in ZINC NACIONAL, S.A. v. BOUCHÉ TRUCKING, INC.

April 2, 2010

Del Lago Partners, Inc. v. Smith, No. 06-1022 (Tex. April 2, 2010)(Willett)
(bar owner’s liability for injuries caused when one patron assaulted another during a closing-time melee involving twenty to forty “very intoxicated” customers)
DEL LAGO PARTNERS, INC., AND DEL LAGO PARTNERS, L.P. DOING BUSINESS UNDER THE ASSUMED NAME OF DEL LAGO GOLF RESORT & CONFERENCE CENTER, AND BMC-THE BENCHMARK MANAGEMENT COMPANY v. BRADLEY SMITH; from Montgomery County; 10th district (10-04-00252-CV, 206 SW3d 146, 10-11-06)
The Court affirms the court of appeals' judgment.
Justice Willett delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Medina, Justice Green, and Justice Guzman joined. [pdf]
Justice Hecht delivered a dissenting opinion, in which Justice Johnson joined. [pdf]
Justice Wainwright delivered a dissenting opinion. [pdf]
Justice Johnson delivered a dissenting opinion, in which Justice Hecht joined. [pdf]
See Electronic Briefs in DEL LAGO PARTNERS, INC. v. SMITH

March 2010 Texas Supreme Court Decisions

MARCH 2010 TEXAS SUPREME COURT OPINIONS:

Mandamus power asserted ever more forcefully in the absence of interlocutory jurisdiction

March 26, 2010

Poor Giant - - Deserving of Supreme Sympathy

Insurance and Financial Services Giant USAA had already "endured" one trial in employment discrimination suit (lost on the merits, then won for jurisdictional reasons on appeal); therefor extraordinary circumstances exist to warrant supreme intervention by mandamus in subsequent proceeding in court of proper jurisdiction.So the Supremes have opined. Who is to say otherwise.

TEXAS SUPREME COURT AGAIN EXPANDS MANDAMUS POWERS - TELLS TRIAL COURT HOW TO RULE ON MOTION FOR SUMMARY JUDGMENT: In re USAA.
No. 07-0871 (Tex. Mar. 26, 2010)(Jefferson)(tolling of limitations if case filed in court without jurisdiction (based on amount in controversy), then refiled in court of proper jurisdiction depends on willfulness, state of mind, of plaintiff)(interlocutory order denying motion for summary judgment not appealable; mandamus granted instead)
IN RE UNITED SERVICES AUTOMOBILE ASSOCIATION; from Bexar County;
4th district (04-07-00464-CV, ___ SW3d ___, 10-17-07)
The Court conditionally grants the writ of mandamus.
Chief Justice Jefferson delivered the opinion of the Court. [pdf]
(Justice Johnson not sitting)
View Electronic Briefs in NO. 07-0871 IN RE UNITED SERVICES AUTOMOBILE ASSOCIATION (USAA)

ANOTHER MANDAMUS GRANTED TO OUTSOURCE LITIGATION TO OTHER STATE PER CONTRACTUAL FORUM SELECTION
In re Laibe Corp., No. 09-0426 (Tex. Mar. 26, 2010)(per curiam) (contractual forum selection enforced by mandamus, laches waiver argument rejected)
IN RE LAIBE CORPORATION; from Wise County;
2nd district (02-09-00089-CV, ___ SW3d ___, 04-24-09)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the writ of mandamus.
Per Curiam Opinion [pdf]
View Electronic Briefs in No. 09-0426 IN RE LAIBE CORPORATION

March 12, 2010

HIGH COURT SPLITS ON APPEALEABILITY OF TRIAL COURT'S ARBITRATION DO-OVER ORDER
East Texas Salt Water Disposal Co., Inc. v. Werline, No. 07-0135 (Tex. Mar. 12, 2010) (Hecht)
(appealability of order ordering re-arbitration under TGAA)
EAST TEXAS SALT WATER DISPOSAL COMPANY, INC. v. RICHARD LEON WERLINE; from Gregg County; 6th district (06-06-00039-CV, 209 SW3d 888, 12-18-06)
The Court affirms the court of appeals' judgment.
Justice Hecht delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright, Justice Johnson, Justice Willett, and Justice Guzman joined. [pdf]
Justice Willett delivered a concurring opinion. [pdf]
Chief Justice Jefferson delivered a dissenting opinion [pdf], in which Justice Medina and Justice Green joined. [pdf]
View Electronic Briefs in 07-0135 EAST TEX. SALT WATER DISPOSAL, CO., INC. v. WERLINE

PRODUCT LIABILITY SUIT AGAINST GERMAN COMPANY IN TEXAS GETS OKAY
Spir Star AG v. Kimich, No. 07-0340 (Tex. Mar. 12, 2010)(Jefferson)
(personal jurisdiction in Texas over German corporation operating through distributor)
SPIR STAR AG v. LOUIS KIMICH; from Harris County;
1st district (01-06-00129-CV, ___ SW3d ___, 02-08-07)
The Court affirms the court of appeals' judgment.
Chief Justice Jefferson delivered the opinion of the Court. [pdf]
View Electronic Briefs in 07-0340 SPIR STAR AG v. KIMICH

[ILLEGAL] ALIENS ARE HUMANS TOO: EVEN A LIBERAL ARGUMENT WILL DO IF IT SERVES TO OVERTURN JURY AWARD IN A PI CASE
TXI Transportation Co. v. Hughes, No. 07-0541 (Tex. Mar. 12, 2010)(illegal immigrant status of defendant's driver in truck-car collision case held prejudicial in jury trial; new trial ordered)
TXI TRANSPORTATION COMPANY, ET AL. v. RANDY HUGHES, ET AL.; from Wise County; 2nd district (02-04-00242-CV, 224 SW3d 870, 05-24-07)
The Court reverses 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 Hecht, Justice O'Neill, Justice Green, Justice Willett, and Justice Guzman joined, and in Part III of which Justice Wainwright joined. [pdf]
Justice Wainwright delivered an opinion concurring in part and dissenting in part. [pdf]
(Justice Johnson not sitting)
View Electronic Briefs in 07-0541 TXI TRANSPORTATION CO. v. HUGHES

GO SUE A GOVERNMENT OFFICIAL: AGENCY ITSELF IMMUNE TO ULTRA VIRES CLAIM
TxDoI v. Reconveyance Services, Inc., No. 07-0786 (Tex. Mar. 12, 2010)(per curiam) (sovereign and governmental immunity, plaintiff should have brought ultra vires claim against agency official, agency itself enjoys sovereign immunity, government entity entitled to grant of plea to the jurisdition)
TEXAS DEPARTMENT OF INSURANCE v. RECONVEYANCE SERVICES, INC.; from Travis County; 3rd district (03-06-00313-CV, 240 SW3d 418, 08-31-07)
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 [pdf]
View Electronic Briefs in 07-0786 TEX. DEPT. OF INS. v. RECONVEYANCE SERVICES, INC.

GOTCHA JURISPRUDENCE: Supreme Court says agreement to extend deadline did not really extend deadline, therefor Defendant in med-mal suit is entitled to dismissal (Plaintiff should have expected it based on Court's previous jurisprudential antics)
Spectrum Healthcare Resources, Inc. v. McDaniel, No. 07-0787 (Tex. Mar. 12, 2010)(Green) (med-mal suit, health care liability, agreement by agreed docket control order to extend deadline for expert report nullified)
SPECTRUM HEALTHCARE RESOURCES, INC., AND MICHAEL SIMS v. JANICE MCDANIEL AND PATRICK MCDANIEL; from Bexar County; 4th district (04-06-00185-CV, 238 SW3d 788, 08-22-07)
The Court reverses the court of appeals' judgment and reinstates the trial court's judgment.
Justice Green delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Johnson, Justice Willett, and Justice Guzman joined. [pdf]
Chief Justice Jefferson delivered a dissenting opinion (disagreeing on fairness of retroactive effect of new rule on unsuspecting plaintiff), in which Justice O'Neill and Justice Medina
joined. [pdf]
View Electronic Briefs in 07-0787 SPECTRUM HEALTHCARE RESOURCES, INC. v. MCDANIEL

First Court of Appeals tried to outsupreme the Supremes on behalf of med-mal defendants: SoL does not bar med-mal suit over surgical sponge left in body and undiscovered for more than 2 years after all -- but only for so many years (see below):
Walters v. Cleveland Regional Medical Center No. 08-0169 (Tex. Mar. 12, 2010)(Willett) (medical malpractice, surgical sponge left in body of patient, statute of limitations, open courts argument)
TANGIE WALTERS v. CLEVELAND REGIONAL MEDICAL CENTER, SHIRLEY KIEFER, AND KEITH SPOONER, M.D.; from Harris County; 1st district (01-06-01068-CV, 264 SW3d 154, 12-20-07)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Willett delivered the opinion of the Court. [pdf]
View Electronic Briefs in 8-0169 WALTERS v. CLEVELAND REGIONAL MED. CENTER

SUPREME ENDORSE ABSOLUTE PROTECTION: Tough luck, lady - The Legis wants you to lose
STATUTE OF REPOSE USED TO DEFEAT OBVIOUS (RES IPSA LOQUITUR) MEDICAL MALPRACTICE INVOLVING SURGICAL SPONGE LEFT IN WOMAN'S BODY AFTER HYSTERECTOMY:
Methodist Healthcare Systems of San Antonio, Ltd. v. Rankin, No. 08-0316 (Tex. Mar. 12, 2010)(Willett) (statute of repose, health care liability claim, res ipsa loquitur)
METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., L.L.P., W.C. SCHORLEMER, M.D., AND ROBERT SCHORLEMER, M.D. v. EMMALENE RANKIN; from Bexar County;
4th district (04-07-00305-CV, 261 SW3d 93, 03-05-08) 2 petitions
The Court reverses the court of appeals' judgment and renders judgment.
Justice Willett delivered the opinion of the Court. [pdf]
View Electronic Briefs 08-0316 METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., L.L.P. v. RANKIN

SUPREMES ADD YET ANOTHER FACET TO MANDAMUS JURISPRUDENCE; GRANT MANDAMUS AFTER SUPREME COURT APPEAL TO MAKE SURE EXEMPLARY DAMAGES IN RARE PLAINTIFF'S WIN GET REDUCED
In Re Columbia Med. Center of Las Colinas, Inc., No. 09-0733 (Tex. Mar. 12, 2010)(per curiam)
(exemplary damages reduced by mandamus after post-appeal final judgment)
IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, INC. D/B/A LAS COLINAS MEDICAL CENTER; from Dallas County
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the writ of mandamus.
Per Curiam Opinion [pdf]
View Electronic Briefs in 09-0733 IN RE COLUMBIA MED. CTR. OF LAS COLINAS, INC.

Another Class Action Dismantled by Texas Supreme Court

CERTIFIED CLASS IN ACTION SEEKING REMEDY FOR OVERCHARGES FOR TELEPHONE SERVICE UNDONE

SWBT Co. v. Marketing on Hold, Inc,. No. 05-0748 (Tex. Feb. 19, 2010)(Majority opinion by Wainwright) (class action, class decertified in interlocutory appeal, standing)
[B]ecause the putative class representative failed to establish that it adequately represents the class, we reverse the judgment of the court of appeals and decertify the class.
SOUTHWESTERN BELL TELEPHONE COMPANY v. MARKETING ON HOLD, INC. D/B/A SOUTHWEST TARIFF ANALYST; from Cameron County; 13th district (13-03-00287-CV, 170 SW3d 814, 08-04-05) emergency motion for expedited decision dismissed as moot
motion to dismiss denied
motion for damages and sanctions denied
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Wainwright delivered the opinion of the Court, in which Justice Hecht, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Harriet O'Neill delivered a dissenting opinion in SW Bell Telephone Co. v. Marketing on Hold (Tex. 2010) in which Chief Justice Jefferson and Justice Medina joined.
Considering the absence of any realistic potential for conflict or antagonism between STA and the class, together with STA’s demonstrated superior expertise in the subject matter of the litigation, I would hold that STA has satisfied the adequacy requirement and affirm certification of the class. Because the Court concludes otherwise, I respectfully dissent.
(Justice Guzman not sitting)

OTHER OPINIONS RELEASED TODAY:

City of Waco v. Kelley, No. 07-0485 (Tex. Feb. 19, 2010)(Johnson)(municipal civil service disciplinary proceeding, judicial review of hearing examiner's decision, jurisdiction issue)
CITY OF WACO, TEXAS v. LARRY KELLEY; from McLennan County;
10th district (10-03-00214-CV, 226 SW3d 672, 05-02-07)
The Court reverses the court of appeals' judgment and remands the case to the trial court
Justice Phil Johnson delivered the opinion of the Court.

City of Dallas v. Abbott, AG, No. 07-0931 (Tex. Feb. 19, 2010)(Majority opinion by O'Neill) (Public Information Act (PIA)) (exceptions from mandatory disclosure)
CITY OF DALLAS v. GREG ABBOTT, ATTORNEY GENERAL OF TEXAS; from Travis County;
7th district (07-06-00161-CV, 279 SW3d 806, 08-13-07)
The Court reverses the court of appeals' judgment and renders judgment.
Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Medina, Justice Green, and Justice Guzman joined.
Justice Dale Wainwright delivered a dissenting opinion in City of Dallas v. Abbott,
in which Justice Johnson joined.
(Justice Willett not sitting)

SUPREMES TELL 8o-year OLD FRAIL LADY TO GO LITIGATE ELSEWHERE
In re ADM Investor Services, Inc., No. 08-0570 (Tex. Feb. 19, 2010)(Opinion by Green) (forum selection clause enforced by mandamus) (poor health of elderly plaintiff rejected as reason for keeping case in Texas)
IN RE ADM INVESTOR SERVICES, INC.; from Rains County;
12th district (12-08-00125-CV, 257 SW3d 817, 06-30-08)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.
Justice Green delivered the opinion of the Court.
Justice Don R. Willett delivered a concurring opinion in In re ADM Investor Services, Inc.

Opinions Handed Down February 12, 2010

Galveston I.S.D. vs. Jaco, No. 09-0195 (Tex. Feb. 12, 2010)(per curiam)
(WBA case remanded to the court of appeals to determine whether plaintiff has alleged a violation under the Texas Whistleblower Act under the court's new holding in State v. Lueck, in which the Court elevated the sufficiency of the facts pleaded in support of each element of the claim to a jurisdictional matter)
GALVESTON INDEPENDENT SCHOOL DISTRICT v. BRENT JACO; from Galveston County;
14th district (14-08-00271-CV, 278 SW3d 477, 01-20-09)
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
(Justice Guzman not sitting) [she wrote the opinion in the court of appeals below]

In the Matter of R.D., No. 09-0343 (Tex. Feb. 12, 2010)(per curiam)(juvenile delinquency proceedings, error preservation for appellate review by means of motion for new trial)
The Texas Supreme Court concludes that [the juvenile's] general challenge to the sufficiency of the evidence to support the jury's delinquency finding met Rule 324's requirement for preserving his challenge to the jury's rejection of his affirmative defense.
IN THE MATTER OF R.D., A JUVENILE; from Bexar County; 8th district (08-07-00100-CV, ___ SW3d ___, 03-12-09)
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

ORDERS ON PETITIONS FOR REVIEW: THE FOLLOWING PETITION FOR REVIEW IS ABATED:
Gallagher Headquarters Ranch Development, Ltd., No. 08-0773 (Tex. Feb. 12, 2010)(per curiam)(petition abated, findings of fact requested from trial court, scope of release pursuant to settlement at issue)
GALLAGHER HEADQUARTERS RANCH DEVELOPMENT, LTD., CHRIS HILL AND JULIE HOOPER v. CITY OF SAN ANTONIO AND CITY PUBLIC SERVICE; from Bexar County; 4th district (04-07-00325-CV, 269 SW3d 628, 07-23-08) abatement order issued
The petition is abated and remanded to the trial court for findings of fact. The trial court shall submit its findings to this Court no later than May 3, 2010. The parties may, within thirty days after the trial court's findings are submitted, provide a supplementary brief to this Court.
Per Curiam Opinion (Justice Hecht not sitting)