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