2008-12-05 Texas Supreme Court Opinions

TxDOT v. York, No. 07-0743 (Tex. 2008)(per curiam)
(TTCA, dangerous road conditions, special defect) (TTCA, Texas Tort Claims Act suit, exception to sovereign immunity, dangerous road conditions, loose gravel, special defect, premises defect)
TEXAS DEPARTMENT OF TRANSPORTATION v. JIMMY DON YORK, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF REBECCA YORK, DECEASED AND JAMES R. BODIFORD, JR., INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF REBECCA YORK, TONYA BODIFORD, AND SHIRLEY FOWLER; from Robertson County; 10th district (10-06-00210-CV, 234 SW3d 212, 08-08-07)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.Per Curiam Opinion

Autozone, Inc. v. Reyes, No. 07-0773 (Tex. 2008) (per curiam) (employment litigation) (age discrimination suit, judgment on jury verdict for employee reversed, take-nothing judgment rendered) AUTOZONE, INC. v. SALVADOR REYES; from Cameron County; 13th district (13-03-00338-CV, ___ SW3d ___, 12-29-06)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

In Re Global Santa Fe Corp., No. 07-0040 (Tex. 2008) (Willett) (mandamus granted) (silica litigation, Jones Act preemption issues)
IN RE GLOBALSANTAFE CORPORATION; from Harris County; 14th district (14-06-00625-CV, ___ SW3d ___, 12-19-06)The Court conditionally grants the petition for writ of mandamus.Justice Willett delivered the opinion of the Court.

In Re G.E. Co., No. 07-0195 (Tex. Dec. 5, 2008) (Phil Johnson) (forum non conveniens mandamus granted, asbestos suit)
IN RE GENERAL ELECTRIC COMPANY, ET AL.; from Harris County; 1st district (01-06-01105-CV, ___ SW3d ___, 03-02-07)stay order issued March 20, 2007, liftedThe Court conditionally grants the petition for writ of mandamus.Justice Johnson delivered the opinion of the Court.(Justice O'Neill not sitting)

When indemnity hinges on choice of law | Texas Supreme Court remands case for application of LA law

Contractual Choice of Law: Case remanded for retrial under Louisiana law. In prior mandamus proceeding Court granted insurer opportunity to participate as nonparty in appeal.

Sonat Exploration Co. v. Cudd Pressure Control, Inc.
No. 06-0979 (Tex. Nov. 21, 2008) (Brister)(choice of law where no express provision in the contract applied to the oilfield accident in Louisiana, duty to indemnify, Rule 11 Agreement, intervention of insurer in appeal)
SONAT EXPLORATION COMPANY v. CUDD PRESSURE CONTROL, INC.; from Harrison County; 6th district (06-03-00077-CV, 202 SW3d 901, 09-26-06) 2 petitions The Court affirms the court of appeals' judgment, but on different grounds. Justice Brister delivered the opinion of the Court.

FROM THE OPINION: This case returns to us after we ordered that an insurer be allowed to argue on appeal a choice-of-law issue that its insured had waived.[1] The court of appeals sustained the insurer’s point, finding that Louisiana law applied because it was the place the contract was performed and was impliedly chosen by the parties. While we disagree with those reasons, we agree with the court’s ultimate conclusion that Louisiana law applies and that remand is required. Accordingly, we affirm.

Prior mandamus case: In re Lumbermens Mut. Cas. Co., 184 S.W.3d 718 (Tex. 2006)("We hold that under the unusual circumstances this case presents, Lumbermens is entitled to invoke the virtual-representation doctrine to raise on appeal the choice-of-law issue its insured abandoned in order to settle uninsured claims in another suit, and the court of appeals abused its discretion in holding otherwise. Accordingly, we conditionally grant the writ of mandamus and direct the court of appeals to permit Lumbermens’ participation to contest the trial court’s choice-of-law ruling. The writ will issue only if the court fails to do so.")

Wagner & Brown, Ltd. v. Sheppard (Tex. 2008)
No. 06-0845 (Tex. Nov. 21, 2008) (Brister)
(oil and gas law, pooling, lease expiration)
WAGNER & BROWN, LTD. ET AL. v. JANE TURNER SHEPPARD, INDIVIDUALLY AND AS INDEPENDENT EXECUTRIX OF THE ESTATE OF SYBIL TURNER, DECEASED; from Upshur County; 6th district (06-05-00023-CV, 198 SW3d 369, 07-14-06) The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to the trial court. Justice Brister delivered the opinion of the Court. (Justice Willett not sitting)

FROM THE OPINION: One observer has estimated that 85 percent of the 27,000 wells drilled in the East Texas oil field in the first half of the 20th century were unnecessary — resulting in a huge waste of money and natural resources.[1] As one means of reducing excessive drilling, the Texas Legislature provided for voluntary pooling in 1949,[2] and compulsory pooling in 1965.[3]

Since then, this Court has never addressed how a pool of producing properties is affected if a lease in the pool expires. In this case, the courts below held that expiration of a lease removes those minerals from the pool and bars recovery of any costs incurred before termination. But the pooling agreement here did not depend on the continuation of underlying leases, nor was the equitable right of reimbursement for improvements necessarily extinguished by termination of the lease. Accordingly, we reverse and remand for further proceedings.

2008-11-14 Mandamus Day at Texas Supreme Court

ARBITRATION MANDAMUS, INTERVENTION & SEVERANCE MANDAMUS, VENUE MANDAMUS, AND MED-MAL EXPERT REPORT MANDAMUS

In Re Transcontinental Realty Investors, Inc.,
No. 07-0608 (Tex. Nov. 14, 2008)(venue mandamus in condemnation suit, motion to transfer venue) IN RE TRANSCONTINENTAL REALTY INVESTORS, INC.; from Kaufman County; 5th district (05‑07‑00726‑CV, ___ SW3d ___, 07‑25‑07) 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 Union Carbide Corp.
No. 07-0987 (Tex. Nov. 14, 2008)(mandamus granted, severance, intervention disallowed) IN RE UNION CARBIDE CORPORATION; from Galveston County; 1st district (01‑07‑00707‑CV, ___ SW3d ___, 10‑25‑07) 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 Shondra Buster,
No. 08-0125 (Tex. Nov. 14, 2008)(mandamus in HCLC case, expert report requirement) IN RE SHONDRA BUSTER, PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES BREWER; from Nacogdoches County; 12th district (12-06‑00349‑CV, 243 SW3d 848, 01‑16‑08) 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 Next Financial Groups, Inc.,
No. 08-0192 (Tex. Nov. 14, 2008)(arbitration mandamus, employment dispute arbitration securities broker's Sabine Pilot claim for wrongful termination)
IN RE NEXT FINANCIAL GROUP, INC.; from Harris County; 14th district (14‑08‑00005‑CV, ___ SW3d ___, 03‑06‑08) stay order issued March 28, 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

SSP Partners and Metro Novelties, Inc.,
No. 05-0721 (Tex. Nov. 14, 2008) (Hecht) (products liability, indemnity)
SSP PARTNERS AND METRO NOVELTIES, INC. v. GLADSTRONG INVESTMENTS (USA) CORPORATION; from Hidalgo County; 13th district (13‑02‑00671‑CV, 169 SW3d 27, 04‑07‑05) 2 petitions The Court affirms the court of appeals' judgment. Justice Hecht delivered the opinion of the Court.

Kerlin v. Soto Arias,
No. 06-0097 (Tex. Nov. 14, 2008)(challenge to deed, sufficiency of affidavit, lack personal knowledge, hearsay, foreign language translation)
GILBERT KERLIN, INDIVIDUALLY, GILBERT KERLIN, TRUSTEE, WINDWARD OIL & GAS CORP., AND PI CORP v. GLORIA SOTO ARIAS, ET AL.; from Cameron County; 13th district (13‑03‑00364‑CV, ___ SW3d ___, 01‑05‑06) 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

Perry v. Cohen,
No. 07-0301 (Tex. Nov. 14, 2008)(special exceptions dismissal)
EMORY B. PERRY, ET AL. v. DARRYL R. COHEN, ET AL.; from Travis County; 3rd district (03‑05‑00786‑CV, ___ SW3d ___, 01‑05‑07) as amended 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

Video of Texas Supreme Court Candidate Debate Now Online

Houston PBS has put a recording of its recent Supreme Court candidate forum, in which all six candidates (3 Republican incumbents and three Democratic challengers) participated, on its
Great Debate Series 2008 webpage. (click link)

It offers a vivid argument why election of judges (minus votebuying with campaign contributions) may not be such a bad idea after all, though opposed by several participants. As lamented by one of the incumbents, if we did not have to run for election, we would not (have to) be here today. Nor would there be any opponents to debate were the Chief to have his way with Missouri Plan and retention elections. Alas, on the bench, having voters decide on judicial personnel is seen as an "encroachment" on "judicial independence," rather than a mechanism that may provide some accountability within a system of checks and balances, may potentially curb excesses, and allow for the removal of underperformers. Could initial partisan appointment by the Governor to a vacancy have anything to do with disapproval of the involvement of the voters and with calls for a constitutional amendment to end the judicial elections system as we know it in Texas?

==============================================
Red, White and Blue: The Great Debate Series 2008

Houston PBS and the Houston Area League of Women Voters team up to bring you an unprecedented round of political debates to help create a more informed and educated electorate.
Texas Supreme Court Candidate Forum
(Chief Justice Jefferson & Judge Jim Jordan; Justice Dale Wainwright & Mr. Sam Houston; Justice Phil Johnson & Justice Linda Yanez)
Moderated by Ernie Manouse
Aired October 12, 2008 at 6 pm
See video part 1 part 2 part 3

Texas Supreme Court's Ad Hoc Jurisprudence Up For a Secret Vote

Houston Chronicle Endorses Justice Dale Wainwright, the Court's Stealth Dissenter

Almost every supreme court opinion provides one if not more reasons to vote against the current Court. Most members of the general public, of course, don't read them, although the opinions along with the appellate briefs are now more accessible via the Internet, and even oral arguments can these days be watched post-facto on-line - a change for which the Chief takes credit.

Nor do most Texans otherwise have much opportunity to learn about the Supremes' important work in curtailing the legal rights of the people of Texas. Not enough, to be sure, to form an informed opinion about the current incumbents' job performance and their contributions to the state's evolving jurisprudence and its business climate. Newspapers have much wider a readership, both in print and on-line. That's were reports about payola justice -- and newspaper endorsements -- come in.

But how useful are they?

Earlier this year the Houston Chronicle recommended Sam Nuchia for reelection in the Republican primary, praising the First Court incumbent and former Houston police chief for having been rarely reversed by the Supreme Court, -- a widely shared honor among the state's 80 appeals court justices given that the Supremes decide less than a couple hundred appeals on the merits annually.

The editorial board of Houston's monopoly Daily failed to mention that the local bar had given Nuchia one of the worst marks for his public service on the appellate bench - in a poll in which attorneys were asked to rate only those incumbents who they actually knew. While most local judicial candidates promote themselves on yard signs and posters by name only, Nuchia did not suffer from lack of name recognition. And as a longtime incumbent, majorities of the voting public had previously expressed their confidence in him.

Nuchia was defeated. Fellow Republican Ed Hubbard now faces Democrat Jim Sharp in an open-seat contest.

Such are the pitfalls of partisan election of judges. Sitting on the bench provides no insurance against being bumped off by a newcomer from within the ranks of one's own party - endorsement by the hometown paper or not.

In the general election campaign, the same paper now comes out in support of Justice Dale Wainwright - a former Harris County District Court Judge - on even more dubious grounds: He is billed as a jurist who adds a much-needed dissenting voice to an ideological court. To wit:

Wainwright counts among his strengths his willingness to offer a dissenting voice on the court. That's an important attribute on this GOP-dominated body, often criticized for returning decisions that appear to follow ideology over the merits of individual cases.
Houston Cronicle Editorial 10/9/08

If only that were true.

According to the opinion production tally for FY 2007-08 published by THE TEXAS LAWYER in its September 15, 2008 edition, Jurist Wainwright boasts a total of two (2) dissenting opinions one (1) concurrence and one (1) classified as concur/dissent. All in all, Wainwright wrote few opinions, period. Only Medina - who has personal concerns more serious than reelection - turned in fewer than Wainwright. That's why the Dallas Morning News did not endorse him, and they weren't shy about saying so. The laurels for proven want of orthodoxy on the high court go to Willett, Brister, Hecht and O'Neill this year. Fresh thinking may be needed, but it's not been coming from Wainwright.

Picking Winners and Loosers

Nor did the Chronicle get it right about the much criticised bias in the decisions of the Court. It's not about ideology. Anything but.

It is about the Court's rather consistent pattern of picking cases to reverse judgments rendered against corporate defendants, malpractice defendants, government defendants, and insurance companies.

Ideology is all about ideas and their consistent and coherent application in act taken. If decisions were driven by principled application of ideas (jurisprudential principles) the court would have to let the cards fall where they will, and victories and losses would be more evenly spread among different categories of litigants.

But it ain't so.

There are consistent decisional patterns with respect to winners and losers in the Supreme Court, but there is no consistent ideology on the Court, which happily legislates from the bench and creates new legal precedents, - invocations of the gospel of strict constructionism and disavowals of judicial activism notwithstanding. - At times even outraging bill authors in the Legislature with creative distortions of legislative intent and policy goals, such as turning the Payday Act into a trap for the unwary, - workers who have not been paid by their employers, for whom the Legis provided a easier and quicker process to collect what is due without going to court.

Diversity that Delivers

Indeed there is much ingenuity and creativity on the Court. On Texas highest bench, the legal theories that are pressed into service to produce the "right" outcome are varied, giving a whole new meaning to diversity. - Diversity that time and again commands the needed majorities on the all-Republican court to deliver the goods for deserving constituencies.

Republican Justice Texas-Style: Responsive to Industry Needs, Flexible, and Adaptable

When it comes to overturning jury verdicts and otherwise favor governmental, corporate, and other defendants, the Court impresses with its pragmatism and flexibility: It will rely on or adapt whatever legal theory will do the job and devise new theories and forge new precedents as necessary when the ones inherited from the predecessors will no longer do. That means that disfavored parties can't win in the Court when existing law favors them, because the Court is prepared - if need be - to simply change the govering law, and then honor the looser by putting his name on the precedent that will be invoked by counsel and lower courts throughout the state for years to come to inflict similar injury to others in the same position.

A lamentable example is Everett Tooke, who, with his wife was denied the right to enforce his contract with the city for leaf removal services in the name of sovereign immunity. To produce that outcome, the Court not only held that the statutory language authorizing a city to "sue and be sued" does not mean that the city may actually be sued, but that leaf collecting was a governmental function and thus properly protected by an expanded doctrine of governmental immunity. Presumably that's why the city saw fit to contract out the menial task to a private mom-and-pop operation, rather than using its own workers, not to mention officials.

Tooke v. City of Mexia is now routinely cited for the countersensical proposition that "may be sued" language in a city charter or statute means that governmental defendant enjoys immunity and may NOT be sued. - Intellectual ingenuity that honors the memory of George Orwell.

His book 1984 was fiction. So is the new precedent. But it is now "the law" and is applied by the courts every day throughout the state to the detriment of people who cannot enforce contracts against governmental defendants and are kicked out of court instead as a matter of jurisdiction.

That makes the legal fiction created by the Supreme Court very real in its consequences. Which is true of many other new precedents for which we have the Supremes to thank.

Jurisprudential Decision Tools a la Carte

Beyond sovereign and sundry immunities, other recent favorites the Court has employed to reverse plaintiff's verdicts are: No duty-no liability, no standing-no case, federal preemption, the-jury-should-not-have-been-told (that the Defendant has deep pockets; that the Nazis did not value human life); variations of the see-hear-know-nothing doctrines: the ostrich defense (look the other way and escape liability, don't let kids drown on your watch, let them drown while you sleep), and the perennial no-evidence favorite: the jury relied on evidence that did not exist (or had to hear from an expert).

But it is very true that the court does not always rule against consumers, injured individuals, or the families of victims of negligence. After all, there are cases that don't involve consumers but two corporations or insurance companies at legal loggerheads.

Nor is it true that Court always favors defendants. Just recently, the Court ruled in favor of a Plaintiff and overturned a court of appeals decision favorable to the Defendant - a cash strapped consumer who got sued for not paying his credit card bill and represented himself pro se. Apparently he could not afford a lawyer and got outfoxed on a procedural issue. Never mind that the debt claim may have been barred by limitations. The guy got his day in court, in the Supreme Court, no less, -- if he wanted to or not.

Access to justice is taken seriously in Texas.

But let's not dwell on sob stories and on statistical patterns. After all, each case is different. Each case deserves to be considered on its merits and on its own terms. That is the seemingly uncontroversial mantra that incumbents do not hesitate to pay homage to on the campaign trail, and which they use to dismiss the weight of the statistical evidence and a certain empirical study of decision trends published in certain law review based on that evidence.

Indeed, the Court's critics might even chime in and agree, to an extent:

Each petitioner that does get the High Court's attention has a good shot at getting the Court to apply the best judicial doctrine that will produce the "right" result under the circumstances of the case. A single judicial philosophy clearly does not and wouldn't fit all.

Ad hoc jurisprudence is the name of the game

If the Court were ideological, it would be more constrained. Who wins would be more predictable based on issues in the case in light of existing precedents. As it is, the best predictor of Texas Supreme Court decisions, based on well-established empirical decisional patters, is the identity of the litigant. Corporate and governmental defendants will generally win. Consumer and tort plaintiffs will generally lose.Legal precedent will not control case disposition, because if it stands in the way, the court will either ignore it, frame the issue differently so as to bring the controversy outside the purview of existing precedent, or throw out existing case law and replace it with a new leading decision, as it did in Tooke v. City of Mexia.

That generalization, of course, does not mean that the Court won't throw a bone or two at the plaintiff's bar come election time, or that one justice will not occasionally dissent to take the high road, leaving the majority to do what needs to be done.

After all, our judges are savvy politicians.

If they did not at times rule for an underdog (like a jail inmate that could not avail himself of the mailbox rule literally for reasons of lack of mobility), Justice Wainwright could not as confidently seek to bolster his reelection bid by protesting loudly that he has written opinions both for plaintiffs and defendants.

The incumbents would be left with the lame argument that there are more jury verdicts out there that were undisturbed compared to the number of those reversed by them on the Texas Supreme Court.

Justice Wainwright would have to concur with his chief that it means nothing if 100% of all TexasSupreme Court decisions went against consumers. After all, statistics are all lies, and all cases are decided on a case-by-case basis.

Presumably, if hiring decisions for positions in government resulted in a workforce consisting of Caucasian men only, it would not be indicative of any bias against Blacks, Hispanics, Asians and women either. - The mere suggestion that it did would impugn the integrity of the hiring authority.

Worse in the case of judges. They have sworn an oath to be impartial, and the suggestion that they are anything but may not only foment umbrage on the bench, but may be construed as defamation per se.

Given the ramifications of that, there is something to be said for judicial elections and secrecy of the ballot. Heck, it even allows the plaintiff's bar to vote for change without risk backlash from the bench at the next docket call or oral argument -- or worse -- career suicide.

Specific Performance: DiGuiseppe v. Lawler (Tex. 2008)

DiGiuseppe vs. Lawler,
No. 04-0641 (Tex. Oct. 17, 2008) (specific performance remedy, real estate sale)

Conclusion

We affirm the holding of the court of appeals that the contract at issue in this case does not alter DiGiuseppe’s obligation to prove and secure a finding of fact that he was ready, willing, and able to perform his obligations under the purchase contract as a prerequisite to obtaining the equitable relief of specific performance. In affirming this part of the court of appeals’ judgment, we hold that an essential element in obtaining the equitable remedy of specific performance is that the party seeking such relief must plead and prove he is ready, willing, and able to timely perform his obligations under the contract. We also affirm the holding of the court of appeals that such a finding cannot be deemed based on the jury charge as submitted under Rule 279. Finally, we reverse the court of appeals’s holding that DiGiuseppe waived his claim to the alternate ground of recovery under the purchase contract relating to refund of the earnest money, and hold that he should have an opportunity to present this claim to the trial court for disposition. Accordingly, we affirm the judgment of the court of appeals in part, reverse in part, and remand the cause to the trial court for further proceedings consistent with this opinion.

NICK DIGIUSEPPE D/B/A SOUTHBROOK DEVELOPMENT CO. AND FRISCO MASTER PLAN v. ROGER LAWLER; from Collin County; 5th district (05-03-00468-CV, ___ SW3d ___, 06-03-04) The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court.Justice Alan Waldrop delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. Justice Green delivered a dissenting opinion, in which Chief Justice Jefferson, Justice O'Neill, and Justice Johnson joined. (Justice Waldrop sitting by commission pursuant to Section 22.005 of the Texas Government Code) (Justice Medina not sitting)

Tags: real estate transactions real estate litigation homeowner law purchase for sale specific performance

2008-10-09 One Superseding Opinion Issued

In its only opinion released this Friday, the Texas Supreme Court slightly revised a previous opinion addressing the interaction of longarm jurisdiction and statute of limitations tolling.

Kerlin vs. Sauceda, No. 05-0653 (Tex. Aug. 29, 2008)(Substituted opinion by O'Neill)
(claim to oil and gas royalties, claims time-barred, no tolling of limitations)

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 Wainwright, Justice
Medina, Justice Green, and Justice Johnson joined.

The record conclusively establishes that the Ballis could have discovered Kerlin’s
wrongful conduct through the exercise of reasonable diligence. In addition, the statute of limitations was not tolled because, under the general longarm statute, Kerlin was present in the state. Accordingly, the statute of limitations bars the Ballis’ claims. We reverse the court of appeals’ judgment and render judgment for Kerlin.

GILBERT KERLIN, INDIVIDUALLY, GILBERT KERLIN, TRUSTEE, WINDWARD OIL & GAS CORP., AND PI CORP. v.
CONCEPCION SAUCEDA, ET AL.; from Cameron County; 13th district
(13-01-00062-CV, 164 SW3d 892, 06-09-05)
petitioners' motion to consolidate dismissed as moot
Justice Brister delivered a concurring opinion, in which Justice Hecht, Justice Medina, and Justice Willett
joined.

Davis v. Fisk Electric Co.(Tex 2008) Batson challenge should have been sustained, Supremes rule

PICKING AND ELIMINATING JURORS BASED ON RACE

Texas Supreme Court, in a majority opinion written by its first African-American chief justice, orders new trial in employment discrimination suit on finding that peremptory strikes in jury selection were based on (or at least correlated with) race.

Davis v. Fisk Electric Co.,
No. 06-0162 (Tex. Sep. 26, 2008)(Jefferson)(jury selection, failure to sustain Batson challenge to race-based juror strike was error, new trial ordered)

FROM THE OPINION BY WALLACE JEFFERSON, CHIEF JUSTICE:

Our rules generally permit each party in a civil action to exercise six peremptory strikes, which are challenges “made to a juror without assigning any reason therefor.” Tex. R. Civ. P. 232, 233. But peremptories exercised for an improper reason, like race or gender, are unconstitutional. In this case, the African American petitioner asserted that he was terminated based on his race.

The respondents used peremptory challenges at trial to exclude five of six African Americans from the venire but contend that their reasons for doing so had nothing to do with the potential jurors’ race. The stated reasons, however, when viewed in conjunction with the 83% removal rate and a comparative juror analysis, defy neutral explanation.

Because we conclude that at least two of the strikes were based on race, we reverse in part the court of appeals’ judgment and remand the case for a new trial.

DONALD DAVIS v. FISK ELECTRIC COMPANY, FISK TECHNOLOGIES & FISK MANAGEMENT, INC.; from Harris County; 14th district (14-04-00790-CV, 187 SW3d 570, 01-12-06)
The Court reverses in part the court of appeals' judgment and remands the case to the trial court . Chief Justice Jefferson delivered the opinion of the Court, joined by Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett.

Justice Brister wrote a concurring opinion, in which he faults the majority for not using the occasion to abolish peremptory challenges altogether, and concurs with the judgment only.

2008-09-26 Release of Opinions Resumes

Nearly four weeks into the new Fiscal Year, the Supreme Court issues its first batch of opinions: Two signed opinions (one by Scott Brister and one by Chief Jefferson with a concurrence by Brister) and five per curiams (two of those on motion for rehearing).

SIGNED OPINIONS

Chief Justice Jefferson writes majority opinion finding error in denying Batson challenge to race-based strikes of jurors.

Davis v. Fisk Electric Co.,
No. 06-0162 (Tex. Sep. 26, 2008) (Jefferson) (jury selection, denial of Batson challenge to race-based juror strike was error, new trial ordered)
DONALD DAVIS v. FISK ELECTRIC COMPANY, FISK TECHNOLOGIES & FISK MANAGEMENT, INC.; from Harris County; 14th district (14-04-00790-CV, 187 SW3d 570, 01-12-06). The Court reverses in part the court of appeals' judgment and remands the case to the trial court.Chief Justice Jefferson delivered the opinion of the Court, joined by Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett.
Justice Brister delivered a concurring opinion, in which Justice Medina joined as to Part III.

Justice Scott A. Brister leads Court in reversing jury award in PI case holding that evidence of corporate defendant's deep pockets should have been withheld from the jury.

Reliance Steel & Aluminum Co. v. Sevcik,
No. 06-0422 (Tex. Sep. 26, 2008)(Brister) (evidence of defendant's wealth in personal injury truck accident case not admissible; jury verdict reversed)
RELIANCE STEEL & ALUMINUM CO. AND SAMUEL ALVARADO v. MICHAEL SEVCIK AND CATHY LOTH; from Waller County; 13th district (13-03-00407-CV, ___ SW3d ___, 03-09-06) respondents' motion to strike petitioners' brief on the merits dismissed as moot. The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Brister delivered the opinion of the Court.

UNSIGNED PER CURIAM OPINIONS

MAY INSURER'S STAFF ATTORNEYS PROVIDE DEFENSE FOR INSURED?

UPLC v. Nationwide Mutual Ins. Co.,
No. 05-0130 (Tex. Sep. 26, 2008)(per curiam opinion on motion for rehearing)(legality of insurance company's use of staff attorneys to defend the insured, captive counsel, unauthorized practice of law)
UNAUTHORIZED PRACTICE OF LAW COMMITTEE v. NATIONWIDE MUTUAL INSURANCE COMPANY AND SEAN P. MARTINEZ; from Bexar County; 4th district
(04-04-00184-CV, 155 SW3d 590, 12-08-04) Per Curiam Opinion

MED-MAL CASE REMANDED TO ALLOW PLAINTIFF TO SEEK EXTENSION TO CURE DEFICIENCY IN EXPERT REPORT

Martinez-Partido v. Methodist Specialty and Transplant Hospital,
No. 06-0611 (Tex. Sep. 26, 2008)(per curiam) (HCLC, Plaintiff entitled to remand for opportunity to fix expert report found deficient on appeal) MAURICIO MARTINEZ-PARTIDO v. METHODIST SPECIALTY AND TRANSPLANT HOSPITAL; METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., L.L.P. D/B/A METHODIST SPECIALTY AND TRANSPLANT HOSPITAL; JANE OR JOHN DOE(S), HOSPITAL EMPLOYEE(S); AND JANE OR JOHN DOE(S), HOSPITAL NURSE(S); from Bexar County; 4th district (04-05-00868-CV, ___ SW3d ___, 06-14-06)Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court vacates the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion

AWARD OF FUTURE MENTAL ANGUISH DAMAGES APPROVED IN ABUSE CASE

Adams v. YMCA of San Antonio,
No. 07-0221 (Tex. Sep. 26, 2008)(per curiam) (jury's award of future mental anguish damages in child sexual abuse case supported by the evidence)
JOHN A. ADAMS AND JANE A. ADAMS, INDIVIDUALLY, AND AS NEXT FRIENDS OF A.A., A MINOR v. YMCA OF SAN ANTONIO, D/B/A YMCA OF SAN ANTONIO AND HILL COUNTRY; from Bexar County; 4th district (04-04-00931-CV, 220 SW3d 1, 07-12-06) 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

ATTORNEYS' FEE CONTRACTS: PAROL EVIDENCE RULE BARS TESTIMONY OF ALLEGED ORAL AGREEMENT TO CAP FEES NOT REDUCED TO WRITING

Sacks v. Haden,
No. 07-0472 (Tex. Sep. 26, 2008)(substituted per curiam opinion on motion for rehearing)(parol evidence rule precludes consideration of evidence of oral agreement to cap attorney fees where written letter agreement on fees did not mention cap)
DAVID J. SACKS, P.C. D/B/A SACKS & ASSOCIATES v. CHARLES MCINTYRE HADEN, JR., INDIVIDUALLY, AND CHARLES MCINTYRE HADEN, JR. & COMPANY D/B/A HADEN & COMPANY; from Harris County; 1st district (01-01-00200-CV, 222 SW3d 580, 03-08-07) motion for rehearing granted. The Court's opinion and judgment of July 11, 2008 are withdrawn and the opinion and judgment of this date are substituted.
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, renders judgment in part, and remands the case to the court of appeals. Per Curiam Opinion

EMINENT DOMAIN: TEXAS SUPREME COURT AGAIN FAVORS THE STATE IN DISPUTE OVER CONDEMNATION DAMAGES

State of Texas v. Dawmar Partners, Ltd., No. 07-0548 (Tex. Sep. 26, 2008)(per curiam) (condemnation appeal, State prevails)
THE STATE OF TEXAS v. DAWMAR PARTNERS, LTD., A TEXAS LIMITED PARTNERSHIP, AND HOWARD WAYNE GRUETZNER AND BEVERLY ANN GRUETZNER (A/K/A BEVERLY G. SHAW), CO-INDEPENDENT EXECUTORS OF THE ESTATE OF MARTHA LILLIAN ATTAWAY GRUETZNER (A/K/A MARTHA LILLIAN ATTAWAY GRUETSNER); from McLennan County; 10th district (10-06-00136-CV, ___ SW3d ___, 05-30-07) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion

Texas Supreme Court Lets Debt Collector Win With Deemed Admissions

All-Republican Supreme Court rules for the Plaintiff. It's not a tort case, of course.

Unifund CCR Partners v. Weaver (Tex. 2008)(per curiam)

Although the credit card debt claim may have been time-barred, and although the pro se consumer invoked the applicable statute of limitations, the Court says that he did not assert the limitations defense in the proper pleading and failed to establish that he served responses to requests for admission when plaintiff's counsel contested receipt in an affidavit and thus rebutted the presumption of receipt triggered by the defendant card holder's court-filed certificate of service. The debt collector then moved for summary judgment based on deemed admissions.

A little knowledge of the law may not be a dangerous thing, compared to no knowledge at all, but it may not be sufficient to successfully defend against legal claims against which there may actually exist a viable defense, -- at least not in a court that favors corporate interests.

The appeals court below had actually ruled in the consumer's favor and had reversed the trial court's summary judgment for the debt collector, only to be in turn reversed by the Texas Supreme Court.

Unifund CCR Partners v. Weaver, No. 07-0682 (Tex. Aug. 29, 2008)(per curiam)
(credit card debt suit, deemed admissions, statute of limitations defense not properly pleaded)
UNIFUND CCR PARTNERS v. KENNETH F. WEAVER; from McLennan County; 10th district (10-06-00207-CV, 231 SW3d 441, 07-11-07)
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.

2008-09-05 Texas Supreme Court begins new FY without fanfare

First Friday of new fiscal year turns out rather uneventful compared to the deadline-driven delivery of a flurry of opinions and other orders the week prior:

No new opinions. No new non-opinions (i.e., opinions announcing denial, expressly refusing to decide the issue presented, and implicitly reserving it for future deliberation). - Just a few routine orders.

To avoid cluttering up the blog, I am not reproducing them here. Click through to the web pages listing denied petitions and the encompassing the residual category of Other Texas Supreme Court Orders (i.e., orders other than denials of petitions for review, orders granting petitions, and orders setting granted cases for oral argument.)

No-Duty Court guts jury's award of damages to family of crime victim

JUDICIAL TORT REFORM: Trammell Crow v. Gutierrez (Tex. 2008)

Applying one of its favorite jurisprudential hatchets to kill awards of damages by Texas juries, the Texas Supreme Court here decides as a matter of law that the landowner owed the person killed on its premises no duty to provide adequate security to prevent the deadly attack.

No duty - no liability, regardless of the jury might have found based on the evidence presented.

The shooting was not foreseeable, the majority, in an opinion by Don R. Willett concludes, although 227 crimes had been reported over the course of the prior two years at the same location. Because most of these crimes were less severe and only a dozen or so involved robber, assault and/or guns, the land owner had no reason to anticipate that things might escalate. The shooting victim suffered the effects of a more serious crime than what was common for the area, the mall owner had no duty to provide security against that more serious risk, and therefore his survivors deserve having the jury verdict in their favor reversed.

Or so the Supremes' reasoning goes.

In reaching this result, the majority of the Court finds comfort in expert evidence in the case that showed that less crime occurred at the mall in question than in the city as a whole. The obvious fact that the entire population does not daily parade through the mall, much less reside there on a permanent basis - i.e., that the incidence of crime would have to be measured against the number of people at risk, rather than the city's population as a whole was merely acknowledged in passing.

Trammell Crow Central Texas, Ltd v. Gutierrez, No. 07-0091 (Tex. Aug. 29, 2008)(Willett) (premises liability, owner liability for crime on property, forseeability, no duty)
TRAMMELL CROW CENTRAL TEXAS, LTD. v. MARIA GUTIERREZ, INDIVIDUALLY AND AS
REPRESENTATIVE OF THE ESTATE OF LUIS GUTIERREZ; AND KAROL FERMAN AS NATURAL
PARENT AND AS NEXT FRIEND OF LUIS ANGEL GUTIERREZ; from Bexar County; 4th district
(04-05-00056-CV, 220 SW3d 33, 12-20-06)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Willett delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright, Justice
Medina, and Justice Green joined.
Chief Justice Jefferson delivered a concurring opinion, in which Justice Hecht, Justice Brister, and Justice
Johnson joined.

Supreme Court again favors the State in an eminent domain dispute

Award of attorney's fees in favor of landowner reversed in opinion by Justice Phil Johnson. Justice O'Neill, writing separately, would have remanded case to trial court to consider imposing sanctions on the TxDOT for improper conduct in the botched condemnation proceeding that cost landowner an arm and a leg in legal fees.

State of Texas v. Brown,
No. 05-0236 (Tex. Aug. 29, 2008)(Johnson) ("[W]e grant the State’s petition for review. Without hearing oral argument, we reverse the court of appeals’ judgment and render judgment that Brown take nothing on his claim for attorney’s fees and expenses.")

THE STATE OF TEXAS v. J. GRADY BROWN, JR.; from Denton County; 2nd district
(02-04-00035-CV, 158 SW3d 68, 01-27-05)
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.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, and Justice Willett joined.

Justice O'Neill delivered an opinion concurring in part and dissenting in part:

I agree fully with the Court’s conclusion that Property Code sections 21.019 and 21.0195 do not authorize the award of all fees and expenses under these circumstances. I dissent only because I would remand the case, rather than render judgment, so that the trial court may consider imposing any sanctions available under the Texas Rules of Civil Procedure. See, e.g., Tex. R. Civ. P. 13 (authorizing sanctions when a pleading is groundless or not brought in good faith); Tex. R. Civ. P. 70 (permitting a trial court to require a party whose amended or supplemental pleading surprises and prejudices another party to pay the additional costs and expenses incurred by the surprised party as a result of the surprise); Tex. R. Civ. P. 215 (providing for sanctions when a party abuses or fails to comply with discovery proceedings and requests).

As the Court notes, we recently held that such sanctions against a condemning authority are available because Property Code section 21.018(b) stipulates that condemnation trials are to be conducted in the same manner as any other civil trial. PR Invs. & Specialty Retailers, Inc. v. Texas, 251 S.W.3d 472, 480 (Tex. 2008).

As we noted in PR Investments, appropriate sanctions under the Rules of Civil Procedure may not constitute the entirety of the fees and costs; for example, perhaps only the costs associated with the untimeliness of the amendment to the petition are available here. Because PR Investments was decided after the trial court’s decision, in the interests of justice and fairness, I would remand to permit the trial court to consider sanctions under the Rules of Civil Procedure in light of PR Investments.

NO MANDAMUS (for now): Supremes put case on hold for Judge Jim Jordan - Democratic would-be Chief Justice of the Texas Supreme Court

In this mandamus proceeding involving a dispute about whether a motion for new trial following a jury verdict was properly granted / ungranted in the trial court, a majority of the Texas Supreme Court decides to abate the case to let the new trial judge, who also happens to be Chief Justice Jefferson's opponent in the Nov. 2008 judicial elections, revisit the orders rendered by his predecessor(s) on the Dallas district court bench. Justice Phil Johnson, who also has a date with the voters coming up, wrote a separate opinion, advocating that the post-trial procedural conundrum presented by this case (and others) be addressed through the exercise of the Court's rulemaking power.

In re Baylor Medical Center at Garland,
No. 06-0491 (Tex. Aug. 29, 2008)(Brister)("[W]e overrule Porter v. Vick, and abate this case for Judge Jordan to reconsider whether to enter judgment on the jury verdict or to grant a new trial.")

IN RE BAYLOR MEDICAL CENTER AT GARLAND; from Dallas County; 5th district(05-05-01663-CV, ___ SW3d ___, 01-04-06) abatement order issued, stay order issued
The Court abates this cause pursuant to Texas Rule of Appellate Procedure 7.2. Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Green, Justice Medina, and Justice Willett joined.
Justice Johnson delivered a dissenting opinion. [excerpt follows below]

The Court is remanding for the third judge to consider whether a new trial is appropriate or whether judgment should be entered on the verdict. When a new trial has been granted and a new judge takes over the case for any reason, why would the party who prevailed during the first trial not move for judgment to be entered on the result of the trial under today’s decision? And this rule may also entail political consideration for judges who have granted new trials. Further, under the Court’s construct, a trial court theoretically has the power to grant more than one new trial and then pick the verdict or result the judge prefers. There needs to be some cutoff beyond which the parties and the trial court can proceed to the new trial without having the spectre of the prior verdict and judgment hanging over them. That can be, and in my view should be, done by rule.I would follow Porter and would not remand for the current judge to reconsider the order granting a new trial. I would hold that the trial court’s plenary power to vacate the order has expired and to remand would be useless. I would address the issues of whether Baylor is entitled to mandamus review, and if so, whether it is entitled to relief.

Chief Jefferson on proper way to go wet (or stay dry)

LEGALIZING BOOZE BY POPULAR VOTE

Texas Supreme Court, in opinion by Chief Justice Wallace Jefferson, offers guidance on how to turn dry area wet where boundaries of original, historical unit that voted to ban alcohol has changed and/or otherwise no longer exists as a distinct political entity.

Online opinion features scanned image of Dallas-area prohibition map (in color) and hyperlinks to cited handbook article on prohibition in Texas. HTML Opinion page has case style and cause number in the title tag, a practice finally adopted by the court's webmaster(s) that will facilitate identification through search engines. Kudos!

In re Calla Davis, No. 07-0147 (Tex. Aug. 29, 2008)(Jefferson) (mandamus denial)(election law) (alcohol regulation by vote, procedure for local option referendum to turn dry area wet when boundaries of relevant area have changed)
IN RE CALLA DAVIS, MELVIN HURST III, AND ANN B. HEARN; 5th district(05-07-00198-CV, ___ SW3d ___, 02-22-07)motion to strike response to mandamus, as amended, deniedPursuant to Texas Rule of Appellate Procedure 52.8(a), the Court denies the petition for writ of mandamus.Chief Justice Jefferson delivered the opinion of the Court.

In the context of a local option election to change the status of a historical justice precinct, we conclude that the Commissioners Court must, upon request, delineate the boundaries of that historical precinct. After it has done so, qualified voters of that historical precinct may apply for local option election petitions. Tex. Elec. Code § 501.023(a). If the petitions are returned and certified, the Commissioner Court must then order a local option election for that historical precinct. Id. § 501.021.

Click here to read full opinion, view exhibit, and follow hyperlinks.

High Court answers another set of certified [insurance law] questions

TEXAS SUPREME COURT ANSWERS CERTIFIED QUESTIONS FROM FIFTH CIRCUIT REGARDING COVERAGE AND DUTY TO DEFEND

Don's Building Supply, Inc. v. Onebeacon Ins. Co.,
No. 07-0639 (Tex. Aug. 29, 2008)(Willett) (cert. questions)
(insurance coverage dispute, duty to defend)
DON'S BUILDING SUPPLY, INC. v. ONEBEACON INSURANCE COMPANY, AS ASSIGNEE OF POTOMAC INSURANCE COMPANY OF ILLINOISThe Court answers the questions certified by the United States Court of Appeals for the Fifth Circuit.
Justice Willett delivered the opinion of the Court.

The Fifth Circuit asks generally when property damage “occurs” under Texas law for purposes of an occurrence-based commercial general liability insurance policy, a question this Court has never answered. More specifically, is an insurer’s duty to defend triggered where damage is alleged to have occurred during the policy period but was inherently undiscoverable until after the policy expired? As to this policy, which focuses on when damage comes to pass, not when damage comes to light, we answer “yes”—the insurer’s duty is triggered under Texas law; the key date is when injury happens, not when someone happens upon it.

Ineffective assistance of counsel - May the claim be raised for the first time on appeal in a termination-of-parental-rights case?

Unfortunately, the Texas Supreme Court won't tell whether a complaint about lousy lawyering in a proceeding resulting in termination of the parent-child relationship may be made in the court of appeals, where right to appeal had been forfeited by counsel's failure to timely file statement of points in the trial court to satisfy statutory requirements for termination appeals.

SUPREMELY UNHELPFUL

For the second time this year, the Supremes have issued a (non) opinion declining review in a SAPCR case and going on the record with their express refusal to decide the merits of an issue of constitutional importance raised by the case:

In Interest of GB, No. 08-0380 (Tex. Aug. 29, 2008)(per curiam) (termination, ineffective counsel)
IN THE INTEREST OF G.B., P.B., N.B., AND V.R., CHILDREN; from Washington County; 1st district
(01-07-00699-CV, ___ SW3d ___, 04-03-08) Per Curiam Opinion

════════════════════════════════════════════════════

PER CURIAM OPINION

The petition for review is denied. In denying the petition, we neither approve nor disapprove the holding of the court of appeals regarding whether Texas Family Code section 263.405(i) prohibits an appellate court from considering an ineffective assistance of counsel claim that was raised for the first time on appeal.

OPINION DELIVERED: August 29, 2008

════════════════════════════════════════════════════
ON PETITION FOR REVIEW FROM THE HOUSTON COURT OF APPEALS FOR THE FIRST DISTRICT:

Bernia v. Department of Family and Protective Services (Tex.App. - Houston [1st Dist.] 2008) (termination of parental rights, ineffective counsel) ("Because Bermea could not have prevailed on her legal and factual sufficiency arguments, we cannot say that the result of the proceeding would have been any different if she had had effective counsel. Therefore, Bermea did not suffer any harm from her counsel's deficient conduct.")

2008-08-29 Signed Majority, Dissenting, and Concurring Opinions

As expected, Texas Supreme Court Justices delivered volley of opinions just prior to the end of the Fiscal Year. Members of the Court found much to disagree on, as seen in a substantial number of dissents and concurrences.

In the oldest case disposed of, the Majority headed by Wainright second-guessed and reversed the jury in a wrongful death case only on loss-of-inheritance damages. Judicial moderation on the tort reform front - Texas-style. Justices Green and Hecht would have thrown out the jury's award of gross negligence damages too, opining that the hospital's negligence that caused the patient's death was merely ordinary.

Columbia Medical Center of Los Colinas v. Hogue, No. 04-0575 (Tex. Aug. 29, 2008)(Wainwright) (HCLC med-mal gross negligence damages, contributory negligence, trifurcation of trial)
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)
The Court affirms in part and reverses in part the court of appeals' judgment.
Justice Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Brister, Justice Medina, Justice Johnson, and Justice Willett joined, and in Parts II-A, II-C, and II-D of which Justice Hecht and Justice Green joined.
Justice Brister delivered a concurring opinion, in which Justice Medina joined.
Justice Green delivered an opinion concurring in part and dissenting in part, in which Justice Hecht joined.

In re Poly-America, LP, No. 04-1049 (Tex. Aug. 29, 2008)(O'Neill)
(arbitration in employment context, retaliatory discharge, mandamus granted)
IN RE POLY-AMERICA, L.P., IND. AND D/B/A POL-TEX INTERNATIONAL, AND POLY-AMERICA GP, L.L.C.; from Chambers County; 1st district
(01-03-01055-CV, 175 SW3d 315, 09-09-04)
The Court conditionally grants the petition for writ of mandamus.
Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Medina, Justice Green, and Justice Johnson joined.
Justice Brister delivered a dissenting opinion. (Justice Willett not sitting)

State of Texas v. Brown, No. 05-0236 (Tex. Aug. 29, 2008)(Johnson)
(condemnation, fees to landowner reversed))
THE STATE OF TEXAS v. J. GRADY BROWN, JR.; from Denton County; 2nd district
(02-04-00035-CV, 158 SW3d 68, 01-27-05)
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. Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, and Justice Willett joined.
Justice O'Neill delivered an opinion concurring in part and dissenting in part.

Coastal Oil & Gas Corp. v. Garza Energy Trust, No. 05-0466 (Tex. Aug. 29, 2008)(Hecht)
(oil and gas law, trespass, rule of capture)
COASTAL OIL & GAS CORPORATION AND COASTAL OIL & GAS USA, L.P. v. GARZA ENERGY TRUST ET AL.; from Hidalgo County; 13th district (13-02-00136-CV, 166 SW3d 301, 05-05-05)
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to the trial court. Justice Hecht delivered the opinion of the Court, in which Justice Brister, Justice Green, Judge Christopher, and Justice Pemberton joined, and in all but Part II-B of which Chief Justice Jefferson, Justice Medina, Justice Johnson, and Justice Willett joined.
Justice Willett delivered a concurring opinion.
Justice Johnson delivered an opinion concurring in part and dissenting in part, in which Chief Justice Jefferson joined, and in Part I of which Justice Medina joined.
(Judge Tracy Christopher and Justice Robert Pemberton sitting by appointment pursuant to section 22.005 of the Texas Government Code) (Justice O'Neill and Justice Wainwright not sitting)

Kerlin v. Sauceda, No. 05-0653 (Tex. Aug. 29, 2008)(O'Neill)(oil and gas royalties, claims barred by limitations)GILBERT KERLIN, INDIVIDUALLY, GILBERT KERLIN, TRUSTEE, WINDWARD OIL & GAS CORP., AND PI CORP. v. CONCEPCION SAUCEDA, ET AL.; from Cameron County; 13th district (13-01-00062-CV, 164 SW3d 892, 06-09-05)
petitioners' motion to consolidate dismissed as moot
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 Wainwright, Justice Medina, Justice Green, and Justice Johnson joined.
Justice Brister delivered a concurring opinion, in which Justice Hecht, Justice Medina, and Justice Willett joined.

In Re McAllen Medical Center , No. 05-0892 (Tex. Aug 29, 2008)(Corrected Opinion by Brister) IN RE MCALLEN MEDICAL CENTER, INC., D/B/A MCALLEN MEDICAL CENTER AND UNIVERSAL HEALTH SERVICES, INC.; from Hidalgo County; 13th district
(13-05-00441-CV, ___ SW3d ___, 10-05-05)
real parties in interest's motion for oral argument denied
corrected opinion issued

Forest Oil Corp v. McAllen, No. 06-0178 (Tex. Aug. 29, 2008)(Willett)(arbitration, commercial contact, fraudulent inducement claim barred by contractual waiver of reliance languageFOREST OIL CORPORATION AND DANIEL B. WORDEN v. JAMES ARGYLE MCALLEN, EL RUCIO LAND AND CATTLE COMPANY, INC., SAN JUANITO LAND PARTNERSHIP, AND MCALLEN TRUST PARTNERSHIP; from Hidalgo County; 13th district (13-05-00419-CV, ___ SW3d ___, 12-15-05) stay order issued November 2, 2007, lifted
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Willett delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice
Wainwright, Justice Brister, Justice Green, and Justice Johnson joined.
Chief Justice Jefferson delivered a dissenting opinion, in which Justice Medina joined.

Ulico Casualty Co. v. Allied Pilots Association, No. 06-0247 (Tex. Aug. 29, 2008)(Johnson)
(insurance coverage, non-coverage claim, waiver, estoppel)
ULICO CASUALTY COMPANY v. ALLIED PILOTS ASSOCIATION; from Tarrant County; 2nd district (02-04-00120-CV, 187 SW3d 91, 12-15-05)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Johnson delivered the opinion of the Court.
Chief Justice Jefferson delivered a concurring opinion, in which Justice O'Neill joined.

In re Baylor Medical Center at Garland, No. 06-0491 (Tex. Aug. 29, 2008)(Brister)(HCLC, mandamus proceeding abated to afford new trial judge opportunity to reconsider issue of granting / ungranting new trial, plenary power)
IN RE BAYLOR MEDICAL CENTER AT GARLAND; from Dallas County; 5th district
(05-05-01663-CV, ___ SW3d ___, 01-04-06)
abatement order issued, stay order issued
The Court abates this cause pursuant to Texas Rule of Appellate Procedure 7.2.
Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Green, Justice Medina, and Justice Willett joined.
Justice Johnson delivered a dissenting opinion. (would address problem raised by the case through Court's rulemaking power)

Zurich American Ins. Co. v. Nokia Inc., No. 06-1030 (Tex. Aug. 29,2008)(Jefferson) (insurance coverage, duty to defend)
ZURICH AMERICAN INSURANCE COMPANY, FEDERAL INSURANCE COMPANY, AND NATIONAL UNION FIRE INSURANCE COMPANY v. NOKIA, INCORPORATED; from Dallas County; 5th district(05-04-01729-CV, 202 SW3d 384, 08-21-06)
The Court modifies the court of appeals' judgment and affirms that judgment as modified.Chief Justice Jefferson delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Hecht delivered a dissenting opinion, in which Justice Brister joined.

Federal Ins. Co. v. Samsung Electronics America, No. 06-1040 (Tex. Aug. 29, 2008)(Jefferson)(duty to defend cell phone company against consumer class action found)
FEDERAL INSURANCE COMPANY v. SAMSUNG ELECTRONICS AMERICA, SAMSUNG TELECOMMUNICATIONS AMERICA, L.P. F/K/A SAMSUNG TELECOMMUNICATIONS AMERICA, INC. AND SAMSUNG ELECTRONICS CO., LTD.; from Dallas County; 5th district(05-04-01316-CV, 202 SW3d 372, 08-21-06)The Court affirms the court of appeals' judgment.Chief Justice Jefferson delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined. Justice Hecht delivered a dissenting opinion, in which Justice Brister joined.

Trinity Universal Ins. Co. v. Cellular One Group, No. 07-0140 (Tex. Aug. 29, 2008)(Jefferson)(insurance law, duty to defend, companion case to Zurich v. Nokia)
TRINITY UNIVERSAL INSURANCE COMPANY v. CELLULAR ONE GROUP; from Dallas County; 5th district (05-04-01641-CV, ___ SW3d ___, 01-09-07) The Court affirms the court of appeals' judgment.Chief Justice Jefferson delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined. Justice Hecht delivered a dissenting opinion, in which Justice Brister joined.

Trammell Crow Central Texas, Ltd v. Gutierrez, No. 07-0091 (Tex. Aug. 29, 2008)(Willett)(premises liability, owner liability for crime on property, forseeability, no duty)
TRAMMELL CROW CENTRAL TEXAS, LTD. v. MARIA GUTIERREZ, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF LUIS GUTIERREZ; AND KAROL FERMAN AS NATURAL PARENT AND AS NEXT FRIEND OF LUIS ANGEL GUTIERREZ; from Bexar County; 4th district (04-05-00056-CV, 220 SW3d 33, 12-20-06)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Willett delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright, Justice Medina, and Justice Green joined.
Chief Justice Jefferson delivered a concurring opinion, in which Justice Hecht, Justice Brister, and Justice Johnson joined.

In re Calla Davis, No. 07-0147 (Tex. Aug. 29, 2008)(Jefferson) (mandamus denial) (election law) (alcohol regulation by vote, procedure for local option referendum to turn dry area wet when boundaries of relevant area have changed)
IN RE CALLA DAVIS, MELVIN HURST III, AND ANN B. HEARN; 5th district
(05-07-00198-CV, ___ SW3d ___, 02-22-07)
motion to strike response to mandamus, as amended, denied
Pursuant to Texas Rule of Appellate Procedure 52.8(a), the Court denies the petition for writ of
mandamus. Chief Justice Jefferson delivered the opinion of the Court.

Don's Building Supply, Inc. v. Onebeacon Ins. Co., No. 07-0639 (Tex. Aug. 29, 2008)(Willett)
(cert. questions)(insurance coverage dispute, duty to defend, eight corners rule, belated discovery of residential construction defect)
DON'S BUILDING SUPPLY, INC. v. ONEBEACON INSURANCE COMPANY, AS ASSIGNEE OF POTOMAC INSURANCE COMPANY OF ILLINOIS
The Court answers the questions certified by the United States Court of Appeals for the Fifth Circuit. Justice Willett delivered the opinion of the Court.

In Interest of MN, a Child, No. 07-0698 (Tex. Aug. 29, 2008)(Johnson)
(termination of parental rights, appellate procedure, extension to file statement of points for appeal) IN THE INTEREST OF M.N., A CHILD; from Taylor County; 11th district
(11-06-00228-CV, 230 SW3d 248, 05-10-07)
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.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Brister, Justice Medina, and Justice Green joined.
Justice Willett delivered a dissenting opinion.

See separate post with list of per curiam opinions released by the Texas Supreme Court on Aug. 29, 2008