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