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)

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

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

2008-09-26 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.

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

2008-08-29 Texas Supreme Court Plays Catch-up

MEAN LEAN OPINION-WRITING MACHINE?

As unanimously prognosticated by the web-savvy appellate intelligentsia, the Texas Supreme Court released a flood of opinions on Friday, August 29, 2008, - just in time for them to be included in the disposition tallies for the current fiscal year, which ends this weekend.

Unfortunately, the sudden burst of activity -- after a lull lasting for several weeks -- makes it well-neigh impossible for court watchers, not to mention the media and the interested public, to quickly and comprehensively assess their significance and impact. Bench, bar, litigants, and the public would be much better served if final decisions were to be delivered within one year, rather than three, and if the Supremes announced the reversal of lower court judgments, and the theories devised to justify them, at a more even and measured pace, rather than doing so in periodic avalanches. At least the current Court is predictable in that in most granted cases it will ultimately turn victors into losers, no matter how long it may take to accomplish the inevitable with proper verbiage agreeable to a majority. See Texas Supreme Court reversal rate.

Be that as it may, the Court issued opinions in 22 pending appeals. That is not to say that the Court decided 22 cases. In at least one, the Court again issued an opinion to announce petition denial and to make clear that it would not decide the issue presented for a resolution. In another case, rehearing was granted, and a clarifying follow-up opinion issued. That's all good for the final fiscal year tally. Nor does it mean that there were only 22 opinions, for a fair number of concurrences and dissents, not to mention hybrid opinions concurring and dissenting contemporaneously in part, boosted the number.

At least the Court - as an institution - can chalk up as a success the fact that it cleared out some of the backlog for which it has been taken to task lately. (Six of the cases have 2004 or 2005 cause numbers). Justices individually met the deadline for a last chance to improve (at least marginally) their opinion production stats for the current reporting period.

Some members, including one Justice who is facing re-election this fall, clearly had a greater need than others to pitch in a few more deliverables, whether deciding opinions, concurs or dissents. Other incumbents on Texas' highest court for civil appeals, of course, already have a proven track record of productivity, although even for the top performers the numbers still pale in comparison to the opinion output of the justices of the courts of appeals.

Pending review of the ream of signed opinions, concurrences, and dissents over the Labor Day weekend, here is the list of per curiams issued by the Court:

August 29, 2008 Per Curiam Opinions Issued by the Texas Supreme Court

Unifund CCR Partners v. Weaver, No. 07-0682 (Tex. Aug. 29,2008)(per curiam) (credit card debt suit, pro se litigant pays for procedural error even though debt suit may have been barred by limitations)
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.
Per Curiam Opinion

Guitar Holding Co., LP v. Hudspeth County Underground Water Conservation District No. 1,
No. 06-0904 (Tex. Aug. 29, 2008)(suppl. opinion on rehearing) (per curiam)
(abandonment of issues on appeal)
GUITAR HOLDING COMPANY, L.P. v. HUDSPETH COUNTY UNDERGROUND WATER CONSERVATION
DISTRICT NO. 1, ET AL.; from Hudspeth County; 8th district
(08-04-00296-CV & 08-05-00115-CV, 209 SW3d 172, 08-31-06)
3 motions for rehearing
judgment issued March 30, 2008, withdrawn
corrected judgment issued
Supplemental Per Curiam Opinion

Brookshire Grocery v. Goss, No. 07-0085 (Tex. Aug. 29, 2008)(per curiam)
(workplace injury, judgment for injured employee reversed, no duty)
BROOKSHIRE GROCERY COMPANY v. BARBARA GOSS; from Wood County; 6th district
(06-05-00036-CV, 208 SW3d 706, 11-20-06)
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 Kiberu, No. 07-0959 (Tex. Aug. 29, 2008)(per curiam)(presuit discovery mandamus TRCP 202)
IN RE SIMON KIBERU AND HARRIS METHODIST H-E-B HOSPITAL; from Tarrant County; 2nd district
(02-07-00312-CV, 237 SW3d 445, 11-01-07)
stay order issued November 30, 2007, 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.

Bismar, MD v. Morehead, No. 08-0009 (Tex. Aug. 29, 2008)(per curiam)(Med-Mal, sufficiency of expert
report, doctor entitled to interlocutory appeal of order denying motion to dismiss)
MIKE BISMAR, M.D. v. DOROTHY A. MOREHEAD, VAUGHN R. MOREHEAD AND JAMES P.
MOREHEAD, III, INDIVIDUALLY AND AS HEIRS AT LAW OF GLORIA MOREHEAD, DECEASED; from
Tarrant County; 2nd district
(02-07-00360-CV, ___ SW3d ___, 11-29-07)
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

In Interest of GB, No. 08-0380 (Tex. Aug. 29, 2008)(per curiam) (termination of parental rights, may
ineffective assistance of counsel claims raised for the first time on appeal? Supreme Court won't tell)
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

Does the Texas Supreme Court Hide Behind Per Curiam Opinions?

COMMENTARY BY WOLFGANG P. HIRCZY DE MINO

Much of the regularly aired criticism of the Texas Supreme Court is well-founded, in particular its proclivity to rule in favor of certain types of defendants, which is easily shown with empirical data on disposition patterns. The allegation that the Court "hides behind unsigned per curiam opinions", however, is a dubious charge, for a number of reasons.

Many of the cases disposed of with per curiam opinions present legal issues previously decided or decided in a signed opinion released on the same day. Thus, one need look no further than who wrote and signed on to the deciding opinion in the leading case, and who did not. If a justice broke ranks, the dissenting opinion will shed light on the reasons and show that the court is not monolithic on that particular issue. If there was no dissent, all justices are equally responsible unless they Court indicates that a particular member did not participate.

While a per curiam opinion may not require the affirmative support of all members of the Court (the Court's rules call for six votes), it can nevertheless be treated as unanimous. After all, if a member of the court did not wish to acquiesce, he or she could have made that point and gone on the record with the different view. It is not unheard of that a justice goes so far as to write a lone opinion on a motion for rehearing, or on denial of a petition, to make a point he finds necessary to get across.

Quite simply, per curiam opinions can and should be attributed to the court in its entirety, not just a majority. Thus there is little basis for the proposition that anything is being hidden. While the internal deliberations over cases and issues are indeed secret, the results of the process are not. All opinions are freely available on the court's web site (though not in convenient tables or lists of cases.)

Each member of the Court should be seen as equally responsible for the result, unless the case was decided pursuant to newly established precedent and the minority simply acknowledges that fact. In those instances, the case that controls the disposition will be cited in the per curiam opinion.

Since all members of the current court are Republicans, it should come as no surprise that there is less ideological diversity and a higher incidence of agreement on which cases/issues to hear, and how to decide them. In Fiscal Year 2007 the Texas Supreme Court released 170 opinions. Per Curiams accounted for 40.6%, - a higher percentage than majority opinions, which made up 36.5% of the total.

As for the current calendar year, by my count, the Texas Supreme Court issued 45 per curiam opinions from January 1 through the end of June 2008. The projected annual figure would thus be 90. (The number of signed Texas Supreme Court Opinions, and break-down by authoring justice, is the subject of another post.).

Texas Supreme Court Appeals decided with per curiam opinions are listed in reverse chronological order below, with a descriptor of the the type of case or issue (HCLC stands for health care liability claim aka medical malpractice; ILA denotes an interlocutory appeal).

January 2008 - June 2008 Per Curiam Opinions Handed Down by the Texas Supreme Court

[45] In Re Chambless, No. 07-0767 (Tex. June 27, 2008) (per curiam) (family law, grandparent visitation suit)(mandamus granted)

[44] In re OAG, No. 08-0165 (Tex. June 27, 2008) (per curiam)(mandamus) (TRO against Office of Texas Attorney General in dispute over child support collection set aside by mandamus as void due to procedural deficiency).

[43] In Re Fleetwood Homes of Texas, LP, No. 06-0943 (Tex. June 20, 2008)(per curiam) (original proceeding)(motion to compel arbitration, no waiver found, mandamus granted)

[42] In re Lyon Financial Services, Inc., No. 07-0486 (Tex. June 20, 2008)(per curiam) (orig. proc.)(mandamus, forum selection clause, motion to dismiss improperly denied)

[41] In Re Roberts, No. 05-0362 (Tex. Jun 6, 2008)(per curiam) (med-mal, grant of 30-day extension to cure deficiencies in expert report was proper, mandamus granted against court of appeals which rule otherwise)

[40] In re Methodist Healthcare System of San Antonio, Ltd, No. 05-0575 (Tex. Jun 6, 2008)(per curiam)(HCLC, sufficiency of expert report, court below instructed to apply new mandamus standard)

[39] In Re Zandi, No. 07­0919 (Tex. May 30, 2008)(per curiam) (family law, child support contempt, habeas corpus granted, due process violated, insufficient notice of charges)

[38] In re TDFPS (CPS), No. 08-0391 (Tex. May 29, 2008)(per curiam) (CPS case against FLDS sect) Justice O'Neill delivered an opinion concurring in part and dissenting in part, in which Justice Johnson and Justice Willett joined.

[37] In re Texas DFPS (CPS), No. 08-0403 (Tex. May 29, 2008)(per curiam) (CPS mass custody case)

[36] In Re CitiGroup Global Markets, Inc., No. 06-0886 (Tex. May 16, 200)(per curiam)(arbitration compelled, no waiver found)

[35] City of Dallas v. Reed, No. 07-0469 (Tex. May 16, 2008)(per curiam) (TTCA, premises liability, unsafe road condition, plea to the jurisdiction)

[34] Chau v. Riddle, MD, No. 07-0035 (Tex. May 16, 2008)(health care liability, Good Samaritan defense fails,substituted per curiam opinion on motion for rehearing)

[33] Barrera, MD vs. Rico, No. 05-0928 (Tex. Apr. 18, 2008)(per curia m)(appealability of order denying doctor's motion for sanctions after plaintiff nonsuited HCLC suit and court dismissed without prejudice)

[32] Regent Care Center of San Antonio II, LP vs. Hargrave, No. 06-0717 (Tex. Apr. 18, 2008)(per curiam) (HCLC, medical malpractice, effect on nonsuit on health care provider's pending appeal of order denying sanctions)

[31] UT-PAN AM v. Aguilar, No. 07-0424 (Tex. Apr. 18, 2008)(per curiam) (TTCA, premises liability, dangerous condition, ostrich defense)

[30] In Interest of KCB, a Child, No. 07-1068 (Tex. Apr. 18, 2008) (per curiam) (family law, right to appeal in termination of parental rights case, procedural requisites for appeal)

[29] Moore, M.D. v. Gatica, No. 07-0094 (Tex. Apr. 11, 2008)(per curiam)(HCLC, ILA)

[28] Diaz-Rohena, M.D. v. Melton, No. 07-0173 (Tex. Apr. 11, 2008)(per curiam)(HCLC, ILA)

[27] Center for Neurological Disorders, P.A. v. George, No. 07-0174 (Tex. Apr. 11, 2008)(per curiam) (HCLC, ILA)

[26] Collini, M.D. v. Pustejovsky, No. 07-0227 (Tex. Apr. 11, 2008)(per curiam)(HCLC, ILA)

[25] Graham Oaks Care Center, Inc. v. Farabee No. 07-0228 (Tex. Apr. 11, 2008)(per curiam)(HCLC, ILA)

[24] Danos v. Ritter, MD, No. 07-0312 (Tex. Apr. 11, 2008)(per curiam)(HCLC, ILA)

[23] Hill Regional Hospital v. Runnels, No. 07-0368 (Tex. Apr. 11, 2008)(per curiam)(HCLC, ILA)

[22] Metwest, Inc. v. Rodriguez, Jr., No. 07-0422 (Tex. Apr. 11, 2008)(per curiam)(HCLC, ILA)

[21] Ansell Healthcare Products, Inc. v. Owens & Minor, Inc., No. 06-0386 (Tex. Apr. 4, 2008)(per curiam) (product liability, indemnification for litigation costs)

[20] County of Dallas v. Sempe, No. 05-0022 (Tex. Mar. 28, 2008)(per curiam)(no conflicts jurisdiction, petition ungranted)

[19] Lowenberg v. City of Dallas, No. 06-0310 (Tex. Mar. 28, 2008)(per curiam)(illegal fee, tax refund suit, takings claim, declaratory judgment, UDJA attorney's fees)

[18] Trend Offset Printing Services, Inc. v. Collin County Community College District (CCCCD) No. 06-0525 (Tex. Mar. 28, 2008)(per curiam) (governmental immunity, breach of contract, statutory waiver)

[17] City of Dallas v. DeQuire, No. 06-0543 (Tex. Mar. 28, 2008)(per curiam)(local governmental entities, immunity waiver)

[16] Bushnell v. Mott, No. 06-1044 (Tex. Mar. 28, 2008)(per curiam) (animal law, dog bite liability)

[15] City of Corsicana v. Stewart, No. 07-0058 (Tex. Mar. 28, 2008)(per curiam) (TTCA, premises liability, dangerous condition, drowning)

[14] O’Neil v. Ector ISD, No. 07-0084 (Tex. Mar. 28, 2008)(per curiam) (public employment disputes, teacher contract dispute, exhaustion of administrative remedies, limitations)

[13] Hamilton v. Wilson, MD, No. 07-0164 (Tex. Mar. 28, 2008)(per curiam) (HCLC, sufficiency of expert report)

[12] Murff, MD v. Pass, No. 07-0294 (Tex. Mar. 28, 2008) (jury selection, juror confusion, disqualification)

[11] Alfonso v. Skadden, No. 07-0321 (Tex. Mar. 28, 2008)(per curiam)(child custody jurisdiction, international family law, service by publication)

[10] Grimes Construction, Inc. v. Great American Lloyds Ins. Co., No. 06-0332 (Tex. 2007)(per curiam) (liability insurance coverage for defective work by contractor)

[9] Chau v. Jefferson Riddle, MD, No. 07-0035 (Tex. Feb. 15, 2008)(first per curiam opinion) (HCLA, medical malpractice, Good Samaritan defense rejected, summary judgment improperly granted)

[8] In the Interest of D.N.C. (Tex. Mar. 8, 2008)(child protection, DFPS suit, termination of parental rights, natural parent presumption, award to conservatorship to child protection agency properly reversed along with termination of parental rights in the absence of independent basis for rebutting parental presumption)

[7] Living Centers of Texas, Inc. v. Penalver, No. 06-0929 (Tex. Jan. 25, 2008)(per curiam) (wrongful death, nursing home negligence, improper jury argument, value of life, Nazi comparison)

[6] In re BP Products North America, Inc., No. 07-0119 (Tex. Jan. 25, 2008)(Gaultney, sitting by assignment)(discovery dispute, apex deposition, Rule 11 agreement, motion to quash notice of deposition, protective order, discovery mandamus granted)

[5] Nueces County v. San Patricio County, No. 07-0166 (Tex. Jan. 25, 2008)(per curiam) (governmental immunity, county vs county dispute over wrongfully collected property taxes)

[4] Warwick Towers Council of Co-Owners v. Park Warwick LP, No. 07-0384 (Tex. Jan 25, 2008)(per curiam)(insurance law, sufficiency, effectiveness of notice of appeal in insured's name, rather than insurer's)

[3] In Re Torry, No. 08-0057 (Tex. Jan. 25, 2008)(per curiam) (election mandamus against Democratic Party chair)

[2] Houser v. McElveen, No. 06-0504 (Tex. Jan. 11, 2008)(per curiam)(appellate procedure, timeliness of notice of appeal, prisoner suit)

[1] Levine v. Shackelford, No. 06-0553 (Tex. Jan. 11, 2008)(per curiam)(default judgment, motion to set aside, standard, motion for new trial, Craddock test)