Texas Supreme Court ends FY with more of the same

A RAFT OF OPINIONS WITH LITTLE FANFARE

Following its annual tradition, the Texas Supreme Court this morning emitted a gust of opinions just in time for the impending end of the Fiscal Year. All justices save two attached their names to opinions of the Court. In addition, Phil Johnson weighed in with a dissent to the Court's resolution of whether a hospital bed is a medical device for purposes of health care and/or premises liability, an issue that badly split the supreme appellate body to the tune of five (5) separate opinion. A rare scenario - if not a first - in recent high court history. As is true of many cases accepted for supreme court scrutiny, there was disagreement (on the nature of the defective bed that caused a patient's fall and injury) in the court below as well.

Only Justice Green was missing from the roll of distinguished opinion authors. Perhaps he is too busy planning his re-election strategy. As hypothesized previously, with some empirical data in tow, the need to hit the campaign trail may undermine judicial productivity (or at least provide a plausible excuse). Since they have already taken themselves out of their respective races, the electoral distraction does not apply to Justice Brister and Justice O'Neill, who have workaholic credentials in any event (at least by high court standards) and each penned a signed opinion on behalf of the Court. Brister also wrote a dissent.

The remainder of today's stack of opinions - long awaited after weeks of summerly lull - will make for interesting reading over the weekend, even if the case outcomes hold few if any surprises. Eleven opinions of the court delivered at once, not to mention concurrences and dissents, will tax the digestive capacity of any seasoned insta-pundit, not to mention the ordinary member of the attentive public or even regular court watcher.

Upon preliminary perusal, there is an intriguing e-discovery mandamus with an opinion by Justice O'Neill delving into how electronic discovery issues are handled in federal courts; an oil & gas contract construction case precipitated by a dispute over fugitive gas; two opinions addressing entitlement to attorney's fees (or absence thereof), at least one with reference to "the American Rule."

THE AMERICAN RULE - TEXAS STYLE

While we are on the seemingly patriotic topic of the "American Rule" (each party pays its own attorneys fees as opposed to the loser-pays principle favored by Europeans and other aliens), there is even more in the Court's fiscal-year-ending jurisprudence: We get learn the Court's view on the effect of a nonsuit when filed by a health care provider as plaintiff where the consumer/defendant had filed a counterclaim before the trial court had signed the dimissal order. The Court's unsurprising resolution of that case makes for a nice complement to the cases in which members of the Court went out of their way to make sure a prevailing health care defendant gets to collect attorneys fees from the patient-plaintiff as a sanction - dead or alive - even if the med-mal suit merely failed for procedural reasons, such as a missed deadline for filing the requisite expert report.

Did anyone suggest that there is a tad of a double standard? Not to mention - shall we say - preferential treatment of certain types of litigants - like Defendants? What a crude insinuation! Here, after all, one of the usual suspects appeared as the Plaintiff! The Court's critics better offer a more refined analysis of disposition patterns. After all, it's true: Plaintiff s don't always lose in the Texas Supreme Court -- especially not when they seek collection of a debt from a consumer. To all appearances, what matters is who you are - what category of litigant - not whether you are plaintiff or defendant, appellant or respondent. Sure, different statutory and nonstatutory considerations may be invoked, but those are malleable. And if the precedents don't fit, we can always change them. Then cite the new ready-made precedent in the next case down the road as authority. Indeed, there are a couple of those in today's offering.

WHO WON AND WHO LOST?

On that score, the usual beneficiaries of Supreme Court jurisprudential largess - governmental defendants and corporations - did well.

No surprises here.

Two more whistleblowers got skinned in the name of Lueck, their equally hapless predecessor on the Court's public employment/governmental entity docket. Since the Court set new precedent in TxDOT v. Lueck for jurisdictional dismissal of WBA claims on the pleadings, these other Whistleblower appeals could be swiftly disposed of in brief per curiams. And so they were.

Another public employment dispute - also resolved in favor of the governmental entity of course - concerned a municipal officer's disciplinary proceeding. Justice Hecht penned the opinion, and managed to explain with with less than 55 footnotes why the City was right in arguing that the hearing examiner had exceeded his authority when ordering reinstatement. No real surprise here either, leaving aside the footnote meter.

DISMISSAL FOR LACK OF EXHAUSTION & WANT OF JURISDICTON

- not to mention - WANT OF COMPASSION

Lastly, there is a worker's comp appeal (aka judicial review suit). Those pesky malingeres! They can't even get their paperwork right and exhaust their administrative remedies. We need to send a message here: Case dismissed. Compassion is for the comp carriers that are tardy in processing and disputing claims. No wonder they have such a hard time keeping up and denying claims. There are so many of them. Plus, they have to deal with these pesky claimants all day long.)

Dismissed for lack of jurisdiction!

Of course.

No jurisdiction. No need to entertain the merits of any claim, pain, or request for a judicial remedy.

Hand me that plea. And we will be done.

The jurisdiction, the jurisdiction, that's the thing .... that won't ever trouble the conscience of the King.


LAST INSTALMENT OF TEX. SUP. CT. OPINIONS FOR THE CURRENT FISCAL YEAR:

City of Pasadena, TX v. Smith, No. 06-0948 (Tex. Aug. 28, 2009)(Hecht) (disciplinary appeal, authority of hearing examiner, police officer, UDJA and jurisdictional issues) CITY OF PASADENA, TEXAS v. RICHARD SMITH; from Harris County; 1st district (01-05-01157-CV, 263 SW3d 80, 09-14-06) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Hecht delivered the opinion of the Court.

Dynegy Midstream Services, LP v. Versado Gas Processors, LLC, No. 07-0043 (Tex. Aug. 28, 2009)(Willett) (oil and gas law litigation, gas lost in transit, construction of contract re: sale, delivery) DYNEGY MIDSTREAM SERVICES, LIMITED PARTNERSHIP AND VERSADO GAS PROCESSORS, LLC v. APACHE CORPORATION; from Harris County; 14th district (14-05-00010-CV, 214 SW3d 554, 12-07-06) 2 petitions The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court. Justice Willett delivered the opinion of the Court.

TDHHS v. Okoli, No. 07-0642 (Tex. Aug. 28, 2009)(per curiam)(WBA case decided per Lueck) TEXAS DEPARTMENT OF HEALTH AND HUMAN SERVICES v. OLIVER OKOLI; from Harris County; 1st district (01-07-00103-CV, 263 SW3d 275, 06-28-07) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands

Marks v. St. Luke's Episcopal Hospital, No. 07-0783 (Tex. Aug. 28, 2009)(Medina)
(injury caused to patient by defective hospital bed, what type of PI claim? medical health care liability or premises liability?) IRVING W. MARKS v. ST. LUKE'S EPISCOPAL HOSPITAL; from Harris County; 1st district (01-04-00228-CV, 229 SW3d 396, 05-03-07) The Court affirms in part and reverses in part 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 O'Neill, Justice Brister, and Justice Green joined. Chief Justice Jefferson delivered a concurring opinion. Justice Hecht delivered a dissenting opinion. Justice Wainwright delivered a dissenting opinion. Justice Johnson delivered a dissenting opinion, in which Justice Hecht, Justice Wainwright, and Justice Willett joined.

Intercontinental Group Partnership v. KB Home Lone Star LP., No. 07-0815 (Aug. 28, 2009)(Willett) (prevailing party for attorney fees purposes) INTERCONTINENTAL GROUP PARTNERSHIP v. KB HOME LONE STAR L.P.; from Hidalgo County; 13th district (13-06-00617-CV, ___ SW3d ___, 08-23-07)The Court reverses the court of appeals' judgment and renders judgment.Justice Willett delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Green, and Justice Johnson joined. [pdf]Justice Brister delivered a dissenting opinion, in which Justice O'Neill, Justice Wainwright, and Justice Medina joined.

TxDOT v. Garcia, No. 07-1030 (Tex. Aug. 28, 2009)(per curiam) (Whistleblower Act claim, allegation of report of violation of law jurisdictional) TEXAS DEPARTMENT OF TRANSPORTATION v. SERGIO GARCIA; from Cameron County; 13th district (13-07-00004-CV, 243 SW3d 759, 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 remands the case to that court. Per Curiam Opinion

State Office of Risk Management v. Lawton, No. 08-0363 (Tex. Aug. 28, 2009)(Jefferson) (workers comp claim; deadline for contesting compensability) STATE OFFICE OF RISK MANAGEMENT v. MARY LAWTON; from Brazos County; 10th district (10-07-00072-CV, 256 SW3d 436, 04-16-08)The Court reverses the court of appeals' judgment and remands the case to the trial court.Chief Justice Jefferson delivered the opinion of the Court. View Electronic Briefs

MBM Financial Corporation v. The Woodlands Operating Co., No. 08-0390 (Tex. Aug. 28, 2009)(Brister)(what constitutes nominal damages?, recovery of damages as prerequisite for recovery of attorneys' fees) MBM FINANCIAL CORPORATION, ET AL. v. THE WOODLANDS OPERATING COMPANY, L.P.; from Montgomery County; 9th district (09-07-00060-CV, 251 SW3d 174, 04-10-08)2 petitionsThe Court reverses the court of appeals' judgment and renders judgment.Justice Brister delivered the opinion of the Court. (Justice O'Neill not sitting)

In Re Liberty Mutual Fire Ins. Co., No. 08-0742 (Tex. Aug. 28, 2009)(per curiam) (worker's comp, exhaustion of administrative remedies) IN RE LIBERTY MUTUAL FIRE INSURANCE COMPANY; from Nueces County; 13th district (13-08-00129-CV, ___ SW3d ___, 08-07-08)Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion

In Re Greater Houston Orthopaedic Specialists, Inc. No. 08-0820 (Tex. Aug. 28, 2009)(per curiam) (effect of misnomer, nonsuit and counterclaim) IN RE GREATER HOUSTON ORTHOPAEDIC SPECIALISTS, INC.; from Cameron County; 3th district (13-08-00366-CV, ___ SW3d ___, 09-11-08)stay order issued October 17, 2008, liftedPursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.Per Curiam Opinion

In Re Weekley Homes, LP. No. 08-0836 (Tex. Aug. 28, 2009)(O'Neill)(discovery mandamus, order to facilitate recovery of deleted emails from computer) IN RE WEEKLEY HOMES, L.P.; from Dallas County; 5th district (05-08-01249-CV, ___ SW3d ___, 09-24-08) The Court conditionally grants the petition for writ of mandamus.Justice O'Neill delivered the opinion of the Court.

Texas Supreme Court Again Expands Mandamus Powers [for the benefit of favored defendants]

July 3, 2009 - Opinions Released

TEXAS SUPREME COURT ORDERS JUDGES TO EXPLAIN AND JUSTIFY WHY THEY GRANTED NEW TRIALS [in cases in which tort claim defendants had prevailed with the jury]

"In the Interest of Justice" - a common label for judicial discretion in that regard and in others - will no longer pass muster as a sufficient ground.

In other cases in which decisions were released just in time for Fourth of July, the Supremes take additional steps to assure that prevailing defendants in health-care liability litigation can saddle unsuccessful plaintiffs and/or their lawyers with attorneys fees and costs as a sanction ... and as deterrence for other would-be plaintiffs: Judicial Med-Mal Reform Plus

In Re Columbia Medical Center of Las Colinas (Tex. 2009),
No. 06-0416 (Tex. Jul. 3, 2009)(Johnson) (mandamus granted) (reasons for trial court judge disregarding jury verdict and granting new trial required) (mandamus relief granted to direct trial court to elaborate on reasons for setting aside jury verdict and granting new trial) (also see --> JNOV) IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, SUBSIDIARY, L.P. D/B/A LAS COLINAS MEDICAL CENTER, ANTONETTE CONNER, AND ANNA MATHEW; from Dallas County;5th district (05-06-00611-CV, ___ SW3d ___, 05-12-06 Opinion of the Dallas Court of Appeals) as reinstated; stay order issued August 29, 2008, lifted. The Court conditionally grants in part and denies in part the petition for writ of mandamus. Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. [pdf] Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice Green joined. [pdf] E-Briefs in Tex 2009 No. 06-0416 IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS
The Texas Constitution provides that the right of trial by jury “shall remain inviolate.” Tex. Const. art. 1, § 15. The issue before us is whether, after a jury has rendered its verdict, the trial court may disregard that verdict, grant a new trial, and explain its action only as being “in the interests of justice and fairness.” We conclude that just as appellate courts that set aside jury verdicts are required to detail reasons for doing so, trial courts must give more explanation than “in the interest of justice” for setting aside a jury verdict. We conditionally grant mandamus relief directing the trial court to more specifically set out the reasons for which it set aside the jury verdict and granted a new trial.Conclusion: We conditionally grant relief. We direct the trial court to specify the reasons it refused to enter judgment on the jury verdict and ordered a new trial as to Columbia. The reasons should be clearly identified and reasonably specific. Broad statements such as “in the interest of justice” are not sufficiently specific. We are confident the trial court will comply. The writ will issue only if it fails to do so.

AFTER MANDAMUS PETITION-ABATEMENT PING-PONG INVOLVING THREE DIFFERENT TRIAL COURT JUDGES, SUPREMES ORDER THE LAST ONE TO SERVE UP A VALID EXPLANATION WHY NEW TRIAL WAS WARRANTED IN THE CASE.

In Re Baylor Medical Center at Garland (Tex. 2009) ,
No. 06-0491 (Tex. Jul 3, 2009) (mandamus granted)(Johnson) (trial judge granted new trial and then resigned, mandamus abatement, current judge ordered to provide reason for granting new trial)
IN RE BAYLOR MEDICAL CENTER AT GARLAND; from Dallas County; 5th district (05-05-01663-CV, ___ SW3d ___, 01-04-06 Opinion of the Dallas Court below) as reinstated, stay order issued August 29, 2008, lifted. The Supreme Court conditionally grants in part and denies in part the petition for writ of mandamus. Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. [pdf]
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice Green joined. [pdf] View Electronic Briefs in Tex. 2009 No. 06-0491 IN RE BAYLOR MED. CTR. AT GARLAND

NO PARTNERSHIP FORMED, AND THUS NONE EXISTED, UNDER TEXAS REVISED PARTNERSHIP ACT

Ingram v. Deere (Tex. 2009) ,
No. 06-0815 (Tex. Jul 3, 2009)(Wainwright)(dispute over existence of partnership under TRPA, partnership criteria/factors, fiduciary duty) (existence of partnership not proven, take-nothing judgment reinstated)
JESSE C. INGRAM, PH.D. AND BEHAVIORAL PSYCHOLOGY CLINIC, P.C. v. LOUIS DEERE, D.O. AND HILLVALE MEDICAL GROUP ASSOCIATION D/B/A HILLVALE MEDICAL ASSOCIATION; from Dallas County; 5th district (05-05-00063-CV, 198 SW3d 96, 04-27-06 Opinion of the Dallas court of Appeals) 2 petitions. The Court reverses the court of appeals' judgment and reinstates the trial court's judgment. Justice Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Medina, Justice Green, and Justice Willett joined, in which Justice O'Neill and Justice Brister joined except as to part II.D.5.a, and in which Justice Johnson joined except as to part II.D.2. [pdf]
Justice Johnson delivered a concurring opinion. [pdf] View Electronic Briefs in Tex. 2009 No. 06-0815 JESSE C. INGRAM, PH.D. v. LOUIS DEERE, D.O.
In this case, we review a court of appeals judgment reinstating a jury verdict finding that Louis Deere, D.O. and Jesse C. Ingram, Ph.D. formed a partnership pursuant to the Texas Revised Partnership Act (TRPA).TRPA lists five factors to be considered in determining whether a partnership has been formed. This determination should be made by examining the totality of the circumstances in each case, with no single factor being either necessary or sufficient to prove the existence of a partnership. Here, the evidence is legally insufficient to establish that a partnership existed between Ingram and Deere. Because the evidence of the formation of a partnership is legally insufficient, we do not address the issue raised in Ingram’s cross-petition challenging the court of appeals’ decision that Ingram owed Deere a fiduciary duty. Accordingly, we reinstate the trial court’s take-nothing judgment in favor of Ingram and reverse the court of appeals’ judgment.Whether a partnership exists must be determined by an examination of the totality of the circumstances. Evidence of none of the factors under the Texas Revised Partnership Act will preclude the recognition of a partnership, and even conclusive evidence of only one factor will also normally be insufficient to establish the existence of a partnership under TRPA. However, conclusive evidence of all five factors establishes a partnership as a matter of law. In this case, Deere has not provided legally sufficient evidence of any of the five TRPA factors to prove the existence of a partnership. Accordingly, we reverse the court of appeals’ judgment and reinstate the trial court’s take-nothing judgment.

APPRAISAL PROVISION IN INSURANCE CONTRACT ENFORCED

State Farm Lloyds v. Johnson (Tex. 2009),
No. 06-1071 (Tex. Jul. 3, 2009)(Brister) (INSURANCE LAW: appraisal clause in insurance context, hail damage to home of insured property owner) STATE FARM LLOYDS v. BECKY ANN JOHNSON; from Collin County; 5th district (05-05-00640-CV, 204 SW3d 897, 10-27-06 Opinion of the Dallas Court of Appeals) The Court affirms the court of appeals' judgment. Justice Brister delivered the opinion of the Court. [pdf] View Electronic Briefs in Tex. 2009 No. 06-1071 STATE FARM LLOYDS v. JOHNSON
Appraisal clauses have appeared in most property insurance policies in Texas for many years. Although they rarely detail the scope of appraisal, there has rarely been any litigation about it. The parties here agree that the scope of appraisal includes damage questions and excludes liability questions, but they disagree which is involved in this dispute about hail damage to a homeowner’s roof. Because an appraisal has yet to take place, we agree with the insured that the record does not establish that it will exceed the permissible scope of appraisal. Accordingly, we affirm the court of appeals’ judgment in favor of the insured.We do not decide today whether the appraisal conducted on remand will necessarily be binding. The summary judgment record does not, and probably cannot, answer that question until after the appraisal has taken place. But for the reasons stated above, we affirm the court of appeals’ order granting Johnson’s motion for summary judgment to compel State Farm to participate in the appraisal process, and remanding the issue of her attorney’s fees to the trial court for consideration.

SUPREMES AGAIN GRANT REVIEW TO VINDICATE HEALTH CARE DEFENDANT'S CLAIM TO SANCTIONS AFTER ABORTIVE MED-MAL SUIT - INTERLOCUTORY APPEAL CONCERNING EXPERT REPORT OBJECTIONS WAS NOT REQUIRED AS A PRELUDE.

Hernandez, MD v. Ebrom (Tex. 2009),
No. 07-0240 (Tex. Jul 3, 2009)(Johnson) (HCLC, does med-mal defendant forfeit right to seek sanctions by failing to pursue by interlocutory appeal challenge to expert report where objection was overruled by the trial court?)
MIGUEL HERNANDEZ, M.D. v. JULIOUS EBROM AND RICHARD HUNNICUTT; from Hidalgo County;13th district (13-06-00053 CV, ___ SW3d ___, 02-08-07 Opinion of the court below) opposed motion for leave to file post-submission brief granted
The Court reverses the court of appeals' judgment and remands the case to that court.Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, Justice Green, and Justice Willett joined. [pdf] Chief Justice Jefferson delivered a dissenting opinion, in which Justice O'Neill and Justice Medina joined. [pdf] View Electronic Briefs in Tex. 2009 No. 07-0240 MIGUEL HERNANDEZ, M.D. v. EBROM
A defendant in a health care liability claim may appeal from the interlocutory order denying its objection to the plaintiff’s expert report. The statutes authorizing the defendant’s objection and appeal do not impose consequences if an interlocutory appeal is not pursued. In this case, we consider whether a defendant health care provider’s failure to challenge the adequacy of an expert report by interlocutory appeal precludes a challenge of the report by appeal from a final judgment when the plaintiff later nonsuits before trial. The court of appeals held it does; we hold it does not. We reverse and remand to the court of appeals.

JURISPRUDENTIAL CURIO: FIRST THE AGENCY SUES, THEN IT CLAIMS THE COURT DOES NOT (YET?) HAVE JURISDICTION

ERS of Texas v. Duenez (Tex. 2009),
No. 07-0410 (Tex. Jul 3, 2009)(Brister) (administrative law, agency exclusive jurisdiction doctrine) EMPLOYEES RETIREMENT SYSTEM OF TEXAS v. XAVIER DUENEZ AND IRENE DUENEZ; from Calhoun County; 13th district (13-05-00729 CV, ___ SW3d ___, 04-05-07 Opinion below) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court dismisses the petition for want of jurisdiction. Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Medina, Justice Green, and Justice Willett joined. [pdf] Justice Hecht delivered a dissenting opinion. [pdf] Justice Wainwright delivered a dissenting opinion, in which Justice Johnson joined. [pdf] View Electronic Briefs in Tex. 2009 No. 07-410 EMPLOYEES RETIREMENT SYSTEM OF TEXAS v. DUENEZ
Construing the Act as a whole, we conclude that the court of appeals’ opinion rejecting ERS’s claim of exclusive jurisdiction here does not conflict with this Court’s opinion in Duenez I affirming ERS’s exclusive jurisdiction of questions relating to payment of benefits. Accordingly, without argument, we dismiss the petition for want of jurisdiction.

A MAJORITY OF THE SUPREMES DENIES MANDAMUS RELIEF IN DISPUTE OVER LEGAL CAPACITY ISSUE WITH RESPECT TO ARBITRATION AGREEMENT. NO LESS THAN FOUR (4) SEPARATE OPINIONS ARE HANDED DOWN.

In re Morgan Stanley & Co, Inc. (Tex. 2009),
No. 07-0665 (Tex. Jul. 3, 2009)(Medina) (arbitration vs. litigation: legal capacity of party to arbitration agreement, who decides the issue?)
IN RE MORGAN STANLEY & CO. INC., SUCCESSOR TO MORGAN STANLEY DW, INC.; from Dallas County; 5th district (05-07-00590-CV, ___ SW3d ___, 07-17-07 Opinion by the Dallas CoA)
The petition for writ of mandamus is denied.
Justice Medina delivered the opinion of the Court [pdf], in which Chief Justice Jefferson, Justice Wainwright, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Brister delivered a concurring opinion. [pdf]
Justice Willett delivered a concurring opinion. [pdf]
Justice Hecht delivered a dissenting opinion. [pdf](Justice O'Neill not sitting) Electronic Briefs in Tex. 2009 No. 07-0665 IN RE MORGAN STANLEY & CO. INC., SUCCESSOR TO MORGAN STANLEY DW INC.
In this original mandamus proceeding, the relator seeks to compel arbitration in accordance with its agreement in the underlying case. The other putative party to the agreement resists arbitration on the ground that she lacked the mental capacity to assent to the contract. The question here is whether the court or the arbitrator should decide this issue of capacity. The trial court concluded that it was the proper forum. We agree and, accordingly, deny the petition for writ of mandamus.
We agree that Prima Paint reserves to the court issues like the one here, that the signor lacked the mental capacity to assent. Accordingly, the trial court did not abuse its discretion in declining to yield the question to the arbitrator. Relator’s petition for writ of mandamus is denied.

DEFAULT JUDGMENT IMPROPER WHERE COUNSEL'S NO-SHOW FOR TRIAL WAS EXCUSABLE DUE TO CONFLICTING ENGAGEMENT IN ANOTHER COURT. NEW TRIAL WARRANTED UNDER CRADDOCK TEST

Dolgencorp of Texas, Inc. v. Lerma (Tex. 2009),
No. 08-0032 (Tex. 2009)(per curiam) (motion for new trial after post-answer default judgment due to counsel's scheduling conflict should have been granted; counsel was in trial in another county, and both counsel and the other court had numerous communications with the court that entered default judgment on no-show)
DOLGENCORP OF TEXAS, INC., D/B/A DOLLAR GENERAL STORE v. MARIA ISABEL LERMA, INDIVIDUALLY, ET AL.; from Cameron County; 13th district (13-03-00314-CV, 241 SW3d 584,08-23-07 Opinion by the Thirteenth Court of Appeals below) 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] Electronic Briefs in Tex. 2009 No. 08-0032 DOLLAR GENERAL STORE v. LERMA
This appeal arises from a post-answer default judgment entered against Dolgencorp of Texas, Inc., d/b/a Dollar General Store (“Dollar General”) when its counsel failed to appear for trial because he was in a preferential trial setting in another county. Because Dollar General established it was entitled to a new trial pursuant to the factors set out in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939), we reverse and remand for a new trial. We reverse the judgment of the court of appeals. The case is remanded to the trial court for a new trial.

SUPREME COURT AGAIN STEPS IN TO ASSURE DEFENDANT IN UNSUCCESSFUL MED-MAL SUIT GETS TO COLLECT ATTORNEY'S FEES AS SANCTION

Aviles, MD v. Aguirre (Tex. 2009),
No. 08-0240 (Tex. Jul 3, 2009)(per curiam) (HCLC sanctions under former med-mal law to be awarded on remand)
WILFREDO AVILES, M.D., AND WILFREDO AVILES, M.D., P.A. v. ALBERT AGUIRRE, ET AL.; from Hidalgo County; 13th district (13-06-00495-CV, ___ SW3d ___, 02-14-08 Opinion below)(Dissenting opinion by Rose Vela) 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] Electronic Briefs 08-0240 WILFREDO AVILES, M.D. v. AGUIRRE
Like the current statute,1 former article 4590i required dismissal of a health-care claim if no timely expert report was served, and an award of attorney’s fees and costs “incurred” by the defendant. Act of May 5, 1995, 74th Leg., R.S., ch. 140, § 13.01, 1995 Tex. Gen. Laws 985, 986, repealed by Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 10.09, 2003 Tex. Gen. Laws 847, 884 (hereinafter “article 4590i”). In this case, the trial court granted dismissal but denied attorney’s fees because they had been incurred by the defendant’s insurer rather than the defendant himself. A divided court of appeals affirmed. ___ S.W.3d ___. As this reflects a basic misunderstanding of both the statute and liability insurance, we reverse.

EXCLUSIVE REMEDY? - NO (IT'S NOT A WORKER'S COMP CASE)

Dealers Electrical Supply Co. v. Scoggins Construction Co, Inc. (Tex. 2009),
No. 08-0272 (Jul. 3, 2009)(O'Neill) (construction law: bond requirement for workers and materialmen, supplies of materials, Texas Construction Trust Fund Act no exclusive remedy)
DEALERS ELECTRICAL SUPPLY CO. v. SCOGGINS CONSTRUCTION COMPANY, INC. ANDBILL R. SCOGGINS; from Hidalgo County;13th district (13-06-00368-CV, ___ SW3d ___, 12-20-07 Opinion by the Thirteenth Court of Appeals). The Court reverses the court of appeals' judgment and remands the case to that court. Justice O'Neill delivered the opinion of the Court. [pdf] Electronic Briefs in Tex. No. 08-0272 DEALERS ELECTRICAL SUPPLY CO. v. SCOGGINS CONSTRUCTION CO., INC.
Chapter 2253 of the Texas Government Code, historically called the McGregor Act, requires a prime contractor on a public-work contract to execute a payment bond to protect laborers and materialmen who work on or supply materials for the project. See Tex. Gov’t Code § 2253.021(a)(2). In this case, an electrical subcontractor on a bonded public-work project walked off the job, leaving his supplier of electrical parts unpaid. The supplier missed the McGregor Act deadline to pursue a claim on the bond, and filed this suit against the prime contractor for violation of the Texas Construction Trust Fund Act, Tex. Prop. Code §§ 162.001(a), 162.031(a), and breach of a separate Joint Check Agreement designed to ensure payment for materials supplied to the subcontractor. We must decide whether the McGregor Act provides the supplier’s exclusive remedy. We hold that it does not. Accordingly, we reverse the court of appeals’ judgment and remand the case for the court to consider the remaining issues it did not address.

JUDICIAL ESTOPPEL BASED ON NONDISCLOSURE IN BANKRUPTCY COURT HELD NOT TO APPLY

Ferguson v. Building Materials Corp. of America (Tex. 2009),
No. 08-0589 (Tex. Jul. 3, 2009)(per curiam) (judicial estoppel based on bankruptcy proceeding does not apply here) JASON FERGUSON AND BOBBIE FERGUSON v. BUILDING MATERIALS CORPORATION OF AMERICA, CPC LOGISTICS, INC., AND ROBERT JAMES MADDOX; from Dallas County;8th district (08-07-00051-CV, 276 SW3d 45, 06-12-08 Opinion of the Eight Court of Appeals below) 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] Electronic Briefs in Tex. 2009 No. 08-0589 FERGUSON v. BUILDING MATERIALS CORP. OF AM.
At issue in this appeal is whether the plaintiffs in a personal injury suit should be estopped from pursuing their claim because they initially omitted it as a listed asset in a pending bankruptcy. The court of appeals, in a divided opinion, concluded that the doctrine of judicial estoppel should apply and affirmed the trial court’s dismissal of the plaintiffs’ personal injury claim. 276 S.W.3d 45. The court of appeals reasoned that the doctrine applied because of the plaintiffs failure to add the personal injury claim as an asset in their bankruptcy proceeding before the personal-injury defendant pointed out the omission and moved for dismissal. Because we disagree that the doctrine is invoked under the circumstances of this case, we reverse and remand the personal injury claim to the trial court. We review a grant of summary judgment de novo. Tex. Mun. Power Agency v. Pub. Util. Comm’n of Tex., 253 S.W.3d 184, 192 (Tex. 2007). Because the Fergusons have taken neither a clearly inconsistent position nor obtained an unfair advantage, the court of appeals erred in affirming the dismissal of their personal injury claim under the doctrine of judicial estoppel. We accordingly grant the petition for review and, without hearing oral argument, reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings. See Tex. R. App. P. 59.1.

ANOTHER NEW TRIAL GRANTED - ANOTHER MANDAMUS ISSUED TO GET THE TRIAL COURT TO JUSTIFY THAT ACT (and explain why judgment was not entered for the defense)

In Re E.I. DuPont de Nemours and Co. (Tex. 2009).,
No. 08-0625 (Tex. Jul. 3, 2009)(Johnson) (mandamus granted: trial court's grant of new trial following jury verdict requires specific explanation)
IN RE E.I. DU PONT DE NEMOURS AND COMPANY; from Jefferson County;9th district (09-08-00318-CV, ___ SW3d ___, 07-24-08 Opinion of the Ninth Court of Appeals) Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants in part and denies in part the petition for writ of mandamus. Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. [pdf] Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice Green joined. [pdf] Electronic Briefs in Tex. 2009 No. 08-0625 IN RE E.I. DU PONT DE NEMOURS AND CO.
At issue in this mandamus proceeding is whether the trial court abused its discretion by disregarding the jury verdict and granting a new trial without giving its reasons for doing so. Based on In re Columbia Medical Center of Las Colinas, ___ S.W.3d ___ (Tex. 2009), we hold that it did and grant relief. Without hearing oral argument, we conditionally grant DuPont’s petition for writ of mandamus. See Tex. R. App. P. 52.8(c). The trial court is directed to specify the reasons for which it disregarded the jury verdict and ordered a new trial. We are confident the trial court will comply, and the writ will issue only if it fails to do so.

COURT-BLESSED DISCOVERY PRIOR TO RULING ON MOTION TO FORCE ARBITRATION PROMPTS HIGH COURT TO INTERVENE

In Re Houston Pipeline Co., L.P. (Tex. 2009),
No. 08-0800 (Tex. 2009)(per curiam) (discovery orders and motion to compel arbitration) (trial court ordered to rule on motion to compel arbitration, and to lift discovery orders).
IN RE HOUSTON PIPE LINE COMPANY, L.P., ET AL.; from Victoria County;13th district (13-07-00299-CV & 13-07-00362-CV, 269 SW3d 90,08-26-08 Opinion of the Thirteenth Court of Appeals)stay order issued October 17, 2008, lifted. Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion [pdf] Electronic Briefs in Tex. 2009 No. 08-0800 IN RE HOUSTON PIPE LINE CO., L.P. D/B/A HOUSTON PIPE LINE CO.
When deciding a motion to compel arbitration under the Federal Arbitration Act, a Texas trial court applies Texas procedure, which permits discovery to be taken when it is needed before the arbitration or to permit the arbitration to be conducted in an orderly manner. Tex. Civ. Prac. & Rem. Code § 171.086 (a)(4),(6); see also Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266, 268 (Tex. 1992). At issue in this proceeding is whether the trial court abused its discretion by permitting discovery on damage calculations and other potential defendants, instead of deciding the motion to compel arbitration. For the reasons below, we conclude the trial court should not have ordered pre-arbitration discovery, but rather should have decided the motion to compel arbitration. Because the discovery ordered here is overbroad and beyond the issues raised in the motion to compel, we conclude that the trial court abused its discretion by ordering this discovery rather than ruling on the legal issues raised by the motion to compel. Accordingly, without hearing oral argument, we conditionally grant the writ and direct the trial court to vacate the discovery order and to rule on the motion to compel arbitration. Tex. R. App. P. 52.8(c). We are confident the trial court will comply, and our writ will issue only if it does not.

June 2009 Texas Supreme Court Decisions

June 26, 2009 - Supreme Court Hands Down Bevy of Opinions

COURT FINDS VAGUENESS IN CURRENT LAW AND SPLITS ON EFFECTIVE DATE OF APPELLATE DECISION
Edwards Aquifer Authority v. Chemical Lime, Ltd. (Tex. 2009),
No. 06-0911 (Tex. Jun. 26, 2009)(Hecht) (administrative law, water law, attorney's fees under the UDJA aka DJA)
EDWARDS AQUIFER AUTHORITY, ET AL. v. CHEMICAL LIME, LTD.; from Comal County; 3rd district(03-04-00379-CV, 212 SW3d 683, 09-14-06) (op. on 2nd motion for rehearing in the court below) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Hecht delivered the opinion of the Court, [pdf 22 pgs], in which Chief Justice Jefferson, Justice O’Neill, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, Justice Johnson and Justice Willett joined. [pdf]
Justice Brister delivered a concurring opinion. [pdf]
Justice Willett delivered a concurring opinion. [pdf]
See Electronic Briefs in Edwards Aquifer Authority v. Chemical Lime, Ltd. (Tex. 2009)

ANOTHER WHISTLEBLOWER BITES THE DUST AT THE SUPREME COURT - Court takes the position that Plaintiff did not qualify as a whistleblower under the statute

State of Texas and TxDoT v. Lueck (Tex. 2009) ,
No. 06-1034 (Tex. Jun. 26, 2009)(Green) (Whistleblower Act claim dismissed) (allegation of regulatory noncompliance insufficient, report not to proper law-enforcement agency)
THE STATE OF TEXAS AND THE TEXAS DEPARTMENT OF TRANSPORTATION v. GEORGE LUECK; from Travis County; 3rd district (03-05-00510-CV, 212 SW3d 630, 08-16-06) motion to dismiss denied The Court reverses the court of appeals' judgment and dismisses the case for lack of jurisdiction. Justice Green delivered the opinion of the Court. [pdf 16 pgs.] Link to Electronic Briefs in State of Texas and TxDoT v. Lueck (Tex 2009)

MOTOR VEHICLE ACCIDENTS: DOES THE STATUTE OF LIMITATIONS RUN WHILE DRIVER WHO CAUSED ACCIDENT IN TEXAS IS OUT OF STATE?

Ashley v. Hawkins (Tex. 2009) ,
No. 07-0572 (Tex. Jun. 26, 2009)(Green) (statute of limitations, no tolling when car wreck defendant is out of state, but subject to being served there) (lack of diligence in securing promt service of citation on defendant amendable to process in another state).
GAIL ASHLEY v. DORIS D. HAWKINS; from Montgomery County; 9th district (09-06-00359-CV, ___ SW3d ___, [opinion in the Beaumont court of appeals] 06-07-07) The Court reverses the court of appeals' judgment and reinstates the trial court's judgment. Justice Green delivered the opinion of the Court. [pdf 10 pgs.] View Electronic Briefs in ASHLEY v. HAWKINS (Tex. 2009)

PROBATE: UNDER WHAT CIRCUMSTANCES CAN THE EXECUTOR SUE THE ATTORNEY OF THE DECEASED?

Smith v. O'DonnelL (Tex. 2009),
No. 07-0697 (Tex. Jun. 26, 2009) (O'Neill) (PROBATE LAW: legal malpractice suit by executor of estate against decedent's attorney, non-estate planning) PAUL H. SMITH, ET AL. v. THOMAS O'DONNELL, EXECUTOR OF THE ESTATE OF CORWIN DENNEY; from Bexar County; 4th district (04-04-00108-CV, 234 SW3d 135, 07-25-07) 2 petitions. The Court affirms the court of appeals' judgment. Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Brister, Justice Medina, and Justice Johnson joined. [pdf - 11 pgs]
Justice Willett delivered a dissenting opinion, in which Justice Wainwright joined. [pdf] (Justice Hecht and Justice Green not sitting) Go to Electronic Briefs in Smith v. O'Donnell (Tex. 2009)

PROBATE: RIGHT TO SURVIVORSHIP WITH RESPECT TO ASSETS/ACCOUNTS BETWEEN SPOUSES

Holmes v. Beatty (Tex. 2009), No. 07-0784 (Tex. Jun. 26, 2009)(Jefferson)(probate law, right to survivorship accounts, community property survivorship agreement)
HARRY HOLMES, II, INDEPENDENT EXECUTOR OF THE ESTATE OF THOMAS J. HOLMES, SR., DECEASED AND AS TRUSTEE OF ANY TRUST NAMED AS A LEGATEE IN THE WILL OF THOMAS J. HOLMES, SR., DECEASED v. DOUGLAS G. BEATTY, INDEPENDENT EXECUTOR OF THE ESTATE OF KATHRYN V. HOLMES, DECEASED; from Harris County; 14th district (14-03-00663-CV, 233 SW3d 475, 08-14-07) Electronic briefs in Holmes v. Beatty No. 07-0784 (Tex. 2009)
consolidated with
Holmes v. Beatty (htm), No. 07-0785 (Tex. Jun. 26, 2009)(Jefferson) (nontestamentary transfer of assets between spouses, right to survivorship accounts) HARRY HOLMES, II, INDEPENDENT EXECUTOR OF THE ESTATE OF THOMAS J. HOLMES, SR., DECEASED AND AS TRUSTEE OF ANY TRUST NAMED AS A LEGATEE IN THE WILL OF THOMAS J. HOLMES, SR., DECEASED v. DOUGLAS G. BEATTY, INDEPENDENT EXECUTOR OF THE ESTATE OF KATHRYN V. HOLMES, DECEASED; from Harris County; 14th district (14-05-00474-CV, 233 SW3d 494, 08-14-07) 2 petitions. The Court reverses and renders in part and affirms in part the court of appeals' judgment. Chief Justice Jefferson delivered the opinion of the Court. [pdf 19 pgs] Click through to Electronic Briefs for 07-0785

DIFFERENCE BETWEEN STATUTE OF REPOSE AND LIMITATIONS EXPLAINED - WORKS FOR DEFENDANT

Galbraith Engineering Consultants, Inc. v. Pochucha (Tex. 2009),
No. 07-1051 (Tex. Jun. 26, 2009)(Medina) (claim based on construction defect causing water damage barred by statute of repose) (statute of repose vs. statute of limitations)
GALBRAITH ENGINEERING CONSULTANTS, INC. v. SAM POCHUCHA AND JEAN POCHUCHA; from Bexar County; 4th district (04-07-00119-CV, 243 SW3d 138, 09-12-07)motion for leave to file response to post submission brief grantedThe Court reverses the court of appeals' judgment and renders judgment.Justice Medina delivered the opinion of the Court. [pdf 11pgs] Read Electronic Briefs in GILBRAITH ENGINEERING CONSULTANTS, INC. v. POCHUCHA (Tex. 2009)

STATE'S CONDEMNATION DAMAGES EXPERT SHOULD NOT HAVE BEEN STRUCK, TEXAS SUPREME COURT SAYS

State of Texas v. Central Expressway Sign Ass'n (Tex. 2009),
No. 08-0061 (Tex. Jun. 26, 2009)(O'Neill) (admissibility of expert testimony, methods of appraising value of condemned property, here billboard easement)(exclusion of expert witness testimony was erroneous and harmful, judgment reversed)
THE STATE OF TEXAS v. CENTRAL EXPRESSWAY SIGN ASSOCIATES, ET AL.; from Dallas County; 5th district (05-06-00003-CV, 238 SW3d 800, 08-31-07) 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 THE STATE OF TEXAS v. CENTRAL EXPRESSWAY SIGN ASSOCIATES (Tex. 2009)

EMPLOYEE MUST ARBITRATE EVEN THOUGH DEFENDANT EMPLOYER NOT SPECIFICALLY IDENTIFIED IN ARB AGREEMENT

In Re Macy's Texas, Inc (Tex. 2009).,
No. 08-0584 (Tex. Jun. 26, 2009)(per curiam)(arbitration mandamus granted in employment dispute, injury at work claim)(conclusory affidavit) IN RE MACY'S TEXAS, INC.; from Bexar County; 4th district (04-08-00469-CV, ___ SW3d ___, [per curiam opinion of the San Antonio Court of Appeals denying mandamus relief] 07-23-08) stay order issued October 10, 2008, liftedPursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion [pdf] View Electronic Briefs in IN RE MACY'S TEXAS, INC. (Tex. 2009)

HOW MANY MEMBERS OF THE PUBLIC ARE ENOUGH FOR AN ATTORNEY DISCIPLINARY PANEL?

In the Matter of Allison (Tex. 2009),
No. 08-0705 (Tex. Jun. 26, 2009)(Jefferson)(attorney disciplinary appeal, dispute about minimum level of public's representation on panel, rounding up or down)
IN THE MATTER OF BOMA O. ALLISON The Court affirms the Board of Disciplinary Appeals' judgment.Chief Justice Jefferson delivered the opinion of the Court. [pdf] View Electronic Briefs in ALLISON v. COMMISSION FOR LAWYER DISCIPLINE (Tex. 2009)

The Supreme's June 19, 2009 Releases:

Barr v. City of Sinton, No. 06-0074 (Tex. Jun. 19, 2009) (Hecht)
(Texas Religious Freedom Restoration Act (TRFRA) applied in local zoning dispute involving religious half-house for released prisoners)(NIMBY litigation with faith component)
PASTOR RICK BARR AND PHILEMON HOMES, INC. v. CITY OF SINTON; from San Patricio County; 13th district (13-03-00727-CV, ___ SW3d ___, 11-23-05) motion to take judicial notice granted. The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Hecht delivered the opinion of the Court.

ANOTHER NO-DUTY ABSOLUTION (FOR EMPLOYER WHO REQUIRED 12 HOUR SHIFTS - FATIGUED WORKER CAUSE WRECK AFTER GETTING OFF WORK)

Nabors Drilling, USA, Inc. v. Escoto,
No. 06-0890 (Tex. Jun. 19, 2009)(Green) (employer found to have no duty / liability for deaths in head-on collision caused by fatigued employee after 12 hour shift) NABORS DRILLING, U.S.A., INC. v. FRANCISCA ESCOTO, ET AL.; from Willacy County; 13th district(13-02-00171-CV, 200 SW3d 716, 06-08-06) The Court reverses the court of appeals' judgment and reinstates the trial court's judgment. Justice Green delivered the opinion of the Court.

POLICE OFFICER GETS SECOND CHANCE TO (S)ELECT GRIEVANCE PROCESS UPON REMAND

City of Desoto, Tx v. White,
No. 07-1031(Tex. Jun. 19, 2009)(Green) (public employment, police officers, disciplinary process, election of grievance remedies, city's failure to give pre-appeal notice not jurisdictional)
CITY OF DESOTO, TEXAS v. JUSTIN WHITE; from Dallas County; 5th district (05-06-01469-CV, 232 SW3d 379, 08-28-07). The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Green delivered the opinion of the Court.

A RARE BIRD IN THE UPPER ECHELONS OF THE COURT SYSTEM:
SUPREME COURT OPINION IN DISPUTE OVER MANDATE ISSUED IN EARLIER APPEAL, WHICH YIELDED TWO OPINIONS

Columbia Med. Ctr. v. Hogue III:
THE MOTION IN THE FOLLOWING CAUSE IS DENIED:

Columbia Medical Center of Law Colinas, Inc. v. Hogue,
No. 04-0575 (Tex. Jun 17, 2009)(Wainwright) COLUMBIA MEDICAL CENTER OF LAS COLINAS, INC. D/B/A LAS COLINAS MEDICAL CENTER v. ATHENA HOGUE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF ROBERT HOGUE, JR., DECEASED, CHRISTOPHER HOGUE, AND ROBERT HOGUE, III; from Dallas County; 5th district(05-03-00279-CV, 132 SW3d 671, 04-13-04) petitioner's motion to clarify mandate denied Justice Wainwright delivered an opinion, in which Justice Hecht and Justice Brister joined, dissenting to the denial.

June 12 , 2009 Opinions

JUVENILE NOT ENTITLED TO FREE LAWYER FOR HABEAS PETITION ONCE HE TURNS AN ADULT (ALTHOUGH SERVING SENTENCE ("Detention") IMPOSED AS JUVENILE UNDER JUVENILE JUSTICE CODE)

In re Hall, (Tex. 2009)
No. 07-0322 (Tex, Jun. 12, 2009) (Medina) (juvenile justice, habeas corpus, access to justice, free appointed counsel, status as juvenile vs. adult, transfer to state jail for adults, statutory construction)
IN RE JAMES ALLEN HALL; from Bexar County; 4th district (04-07-00050-CV, ___ SW3d ___, 02-14-07) The petition for writ of mandamus is denied. Justice Medina delivered the opinion of the Court.

SUPREME COURT GRANTS MANDAMUS TO ENFORCE FORUM SELECTION (AND CHOICE-OF-LAW) CLAUSE

In re International Profit Associates, Inc. (Tex. 2009) (per curiam)
No. 08-0531 (Tex. Jun. 12, 2009)(per curiam) (mandamus to enforce forum selection clause choice of law clause granted)(who has evidentiary burden in dispute over forum selection clause, where dispute should be litigated?)
IN RE INTERNATIONAL PROFIT ASSOCIATES, INC., INTEGRATED BUSINESS ANALYSIS, INC., ACCOUNTANCY ASSOCIATES, LLC., INTERNATIONAL TAX ADVISORS, INC., AND HUEY MITCHELL, JR.; from Dallas County; 5th district (05-08-00809-CV, ___ SW3d ___, 06-30-08) stay order issued March 11, 2009, lifted
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.Per Curiam Opinion [pdf]

June 5, 2009 Orders

This week's batch of opinions brings more of the usual - reversal of jury judgment against hospital (on erroneous instruction grounds this time), mandamus relief in favor of health care provider in discovery dispute, finding of "no defect" in products liability case involving another injured truck driver - but also a significant ruling on a core issue in civil procedure:

Is a non-answering defendant entitled to service with a new citation when the plaintiff files an amended pleading seeking greater relief than in the original petition?

The Chief answers - but not with the unanimous consent of the court - that service pursuant to TRCP 21a - i.e, by certified mail or fax - is sufficient. Justice Brister would continue to afford greater procedural protection to defendants and writes separately to express his displeasure with the majority, with Wainwright and Willett in tow. - The issue usually arises when a default judgment is challenged, here in a SAPCR modification case, but the effect of the Supreme Court's ruling is much more far-reachiing.

On the issues-of-first-impression front (or shall we say in the legislating-from-the-bench department) the Court on Friday announced that the removal of a trustee is not governed by any statute of limitations, such as the four-year statute of limitations applicable to breach of fiduciary duty, because - among other rationales - no money damages are being sought for a tort, and evolving circumstances may warrant the grant of equitable relief to oust a wayward trustee caught stuffing his or her own pockets with trust assets at any time. (Needless to say, the Supremes did not quite put it that way). I don't mean to say that it is improper for the Supremes to perform this role as policymakers. What is improper - and hypocritical - is to claim and pretend that it ain't happening, - that "legislating" from the bench isn't a core function of the upper echelons of the judicial branch. If it weren't so, Westlaw and Lexis-Nexis would be out of business

JURY INSTRUCTION ERROR FOUND ON ISSUE OF DOC AS INDEPENDENT CONTRACTOR

Columbia Rio Grande Healthcare, LP v. Hawley, (Tex. 2009)
No. 06-0372 (Tex. Jun. 5, 2009)(Johnson) (HCLC, med-mal suit against hospital, physician as independent contractor, lost chance of survival, jury instructions error as grounds for reversal and new trial)(trial court found to have erred in refusing jury instructions; retrial ordered on remand) COLUMBIA RIO GRANDE HEALTHCARE, L.P. D/B/A RIO GRANDE REGIONAL HOSPITAL v. ALICE H. HAWLEY AND JAMES A. HAWLEY; from Hidalgo County; 13th district (13-03-00427-CV, 188 SW3d 838, 03-23-06) 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, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Brister, Justice Green, and Justice Willett joined, and in all but Part II-D 2 of which Justice O'Neill and Justice Medina joined.

DISCOVERY MANDAMUS GRANTED TO VACATE PROTECTIVE ORDER IN MED-MAL SUIT

In re Lester Collins, MD, (Tex 2009)
No. 07-0737 (Tex. Jun. 5, 2009) (O'Neill)(discovery mandamus, protective order lifted covering ex parte contacts with witnesses in med-mal case, medical privacy, HIPAA) IN RE LESTER COLLINS, M.D.; from Smith County; 12th district(12-06-00078-CV, 224 SW3d 798, 05-14-07) The Court conditionally grants the petition for writ of mandamus. Justice Harriet O'Neill delivered the opinion of the Court.

NO DUE PROCESS VIOLATION FOUND IN GARNISHMENT OF INMATE TRUST ACCOUNT TO PAY COURT COSTS

Harrell v. State of Texas, (Tex. 2009)
No. 07-0806 (Tex. Jun. 5, 2009) (Willett)(whether order to prison officials to siphon money from inmate trust account to pay courts costs incurred in underlying criminal case is a civil or a criminal matter; what due process prisoner is entitled to). WALTER E. HARRELL v. THE STATE OF TEXAS; from Terry County; 7th district (07-06-00469-CR&07-06-00470-CR, ___ SW3d ___, 08-13-07) The Court reverses the court of appeals' judgment dismissing the case for want of jurisdiction and renders judgment affirming the trial court's order.
Justice Don R. Willett delivered the opinion of the Court.

SUIT TO REMOVE TRUSTEE NOT LIMITED BY STATUTE OF LIMITATIONS

Ditta v. Conte, (Tex. 2009)
No. 07-1026 (Tex. Jun. 5, 2009) (Willett) (removal of trustee, statute of limitations does not apply, trustee may be removed at any time, but suit seeking money damages for breach of fiduciary duty governed by four-year SoL)
LOUIS M. DITTA, GUARDIAN OF THE ESTATE OF DORIS L. CONTE, AN INCAPACITATED PERSON v. SUSAN C. CONTE AND JOSEPH P. CONTE, JR.; from Harris County; 1st district (01-05-00603-CV, ___ SW3d ___, 08-31-07) motion to strike petitioner's appendix to brief on the merits dismissed as mootThe Court reverses the court of appeals' judgment and remands the case to that court. Justice Willett delivered the opinion of the Court.

SUPREME COURT DISAGREES WITH COURT OF APPEALS - NO PRODUCT LIABILITY

Timpte Industries, Inc. v. Gish, (Tex. 2009)
No. 08-0043 (Jun. 5, 2009) (Medina)(product liability, Supreme Court finds no defect in design of trailer from which worker fell) TIMPTE INDUSTRIES, INC. AND TIMPTE INC. v. ROBERT GISH AND PINNACOL ASSURANCE; from Hale County; 7th district (07-06-00215-CV, ___ SW3d ___, 11-30-07) The Court reverses the court of appeals' judgment and renders judgment. Justice David Medina delivered the opinion of the Court.

SUFFICIENCY OF SERVICE UNDER RULE 21A OF AMENDED PLEADING ON DEFENDANT WHO HAS NOT ANSWERED

In the Interest of E.A., (Tex. 2009)
No. 08-0157 (Tex. Jun. 5, 2009)(Jefferson)(method of service of amended petition, sufficiency of service by certified mail under rule 21a when Defendant has been served with civil process, but has not filed an answer or made appearance) (SAPCR child custody modification proceeding) IN THE INTEREST OF E.A. AND D.A., CHILDREN; from Wichita County; 2nd district (02-07-00215-CV, ___ SW3d ___, 12-06-07) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Chief Justice Jefferson delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice Medina, Justice Green, and Justice Johnson joined.
Justice Scott A. Brister delivered a concurring opinion, in which Justice Wainwright and Justice Willett joined. (default judgment not to be based on amended petition seeking more onerous relief against nonanswering defendant if not served with new citation)