March 2010 Texas Supreme Court Decisions

MARCH 2010 TEXAS SUPREME COURT OPINIONS:

Mandamus power asserted ever more forcefully in the absence of interlocutory jurisdiction

March 26, 2010

Poor Giant - - Deserving of Supreme Sympathy

Insurance and Financial Services Giant USAA had already "endured" one trial in employment discrimination suit (lost on the merits, then won for jurisdictional reasons on appeal); therefor extraordinary circumstances exist to warrant supreme intervention by mandamus in subsequent proceeding in court of proper jurisdiction.So the Supremes have opined. Who is to say otherwise.

TEXAS SUPREME COURT AGAIN EXPANDS MANDAMUS POWERS - TELLS TRIAL COURT HOW TO RULE ON MOTION FOR SUMMARY JUDGMENT: In re USAA.
No. 07-0871 (Tex. Mar. 26, 2010)(Jefferson)(tolling of limitations if case filed in court without jurisdiction (based on amount in controversy), then refiled in court of proper jurisdiction depends on willfulness, state of mind, of plaintiff)(interlocutory order denying motion for summary judgment not appealable; mandamus granted instead)
IN RE UNITED SERVICES AUTOMOBILE ASSOCIATION; from Bexar County;
4th district (04-07-00464-CV, ___ SW3d ___, 10-17-07)
The Court conditionally grants the writ of mandamus.
Chief Justice Jefferson delivered the opinion of the Court. [pdf]
(Justice Johnson not sitting)
View Electronic Briefs in NO. 07-0871 IN RE UNITED SERVICES AUTOMOBILE ASSOCIATION (USAA)

ANOTHER MANDAMUS GRANTED TO OUTSOURCE LITIGATION TO OTHER STATE PER CONTRACTUAL FORUM SELECTION
In re Laibe Corp., No. 09-0426 (Tex. Mar. 26, 2010)(per curiam) (contractual forum selection enforced by mandamus, laches waiver argument rejected)
IN RE LAIBE CORPORATION; from Wise County;
2nd district (02-09-00089-CV, ___ SW3d ___, 04-24-09)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the writ of mandamus.
Per Curiam Opinion [pdf]
View Electronic Briefs in No. 09-0426 IN RE LAIBE CORPORATION

March 12, 2010

HIGH COURT SPLITS ON APPEALEABILITY OF TRIAL COURT'S ARBITRATION DO-OVER ORDER
East Texas Salt Water Disposal Co., Inc. v. Werline, No. 07-0135 (Tex. Mar. 12, 2010) (Hecht)
(appealability of order ordering re-arbitration under TGAA)
EAST TEXAS SALT WATER DISPOSAL COMPANY, INC. v. RICHARD LEON WERLINE; from Gregg County; 6th district (06-06-00039-CV, 209 SW3d 888, 12-18-06)
The Court affirms the court of appeals' judgment.
Justice Hecht delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright, Justice Johnson, Justice Willett, and Justice Guzman joined. [pdf]
Justice Willett delivered a concurring opinion. [pdf]
Chief Justice Jefferson delivered a dissenting opinion [pdf], in which Justice Medina and Justice Green joined. [pdf]
View Electronic Briefs in 07-0135 EAST TEX. SALT WATER DISPOSAL, CO., INC. v. WERLINE

PRODUCT LIABILITY SUIT AGAINST GERMAN COMPANY IN TEXAS GETS OKAY
Spir Star AG v. Kimich, No. 07-0340 (Tex. Mar. 12, 2010)(Jefferson)
(personal jurisdiction in Texas over German corporation operating through distributor)
SPIR STAR AG v. LOUIS KIMICH; from Harris County;
1st district (01-06-00129-CV, ___ SW3d ___, 02-08-07)
The Court affirms the court of appeals' judgment.
Chief Justice Jefferson delivered the opinion of the Court. [pdf]
View Electronic Briefs in 07-0340 SPIR STAR AG v. KIMICH

[ILLEGAL] ALIENS ARE HUMANS TOO: EVEN A LIBERAL ARGUMENT WILL DO IF IT SERVES TO OVERTURN JURY AWARD IN A PI CASE
TXI Transportation Co. v. Hughes, No. 07-0541 (Tex. Mar. 12, 2010)(illegal immigrant status of defendant's driver in truck-car collision case held prejudicial in jury trial; new trial ordered)
TXI TRANSPORTATION COMPANY, ET AL. v. RANDY HUGHES, ET AL.; from Wise County; 2nd district (02-04-00242-CV, 224 SW3d 870, 05-24-07)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Medina delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice O'Neill, Justice Green, Justice Willett, and Justice Guzman joined, and in Part III of which Justice Wainwright joined. [pdf]
Justice Wainwright delivered an opinion concurring in part and dissenting in part. [pdf]
(Justice Johnson not sitting)
View Electronic Briefs in 07-0541 TXI TRANSPORTATION CO. v. HUGHES

GO SUE A GOVERNMENT OFFICIAL: AGENCY ITSELF IMMUNE TO ULTRA VIRES CLAIM
TxDoI v. Reconveyance Services, Inc., No. 07-0786 (Tex. Mar. 12, 2010)(per curiam) (sovereign and governmental immunity, plaintiff should have brought ultra vires claim against agency official, agency itself enjoys sovereign immunity, government entity entitled to grant of plea to the jurisdition)
TEXAS DEPARTMENT OF INSURANCE v. RECONVEYANCE SERVICES, INC.; from Travis County; 3rd district (03-06-00313-CV, 240 SW3d 418, 08-31-07)
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 [pdf]
View Electronic Briefs in 07-0786 TEX. DEPT. OF INS. v. RECONVEYANCE SERVICES, INC.

GOTCHA JURISPRUDENCE: Supreme Court says agreement to extend deadline did not really extend deadline, therefor Defendant in med-mal suit is entitled to dismissal (Plaintiff should have expected it based on Court's previous jurisprudential antics)
Spectrum Healthcare Resources, Inc. v. McDaniel, No. 07-0787 (Tex. Mar. 12, 2010)(Green) (med-mal suit, health care liability, agreement by agreed docket control order to extend deadline for expert report nullified)
SPECTRUM HEALTHCARE RESOURCES, INC., AND MICHAEL SIMS v. JANICE MCDANIEL AND PATRICK MCDANIEL; from Bexar County; 4th district (04-06-00185-CV, 238 SW3d 788, 08-22-07)
The Court reverses the court of appeals' judgment and reinstates the trial court's judgment.
Justice Green delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Johnson, Justice Willett, and Justice Guzman joined. [pdf]
Chief Justice Jefferson delivered a dissenting opinion (disagreeing on fairness of retroactive effect of new rule on unsuspecting plaintiff), in which Justice O'Neill and Justice Medina
joined. [pdf]
View Electronic Briefs in 07-0787 SPECTRUM HEALTHCARE RESOURCES, INC. v. MCDANIEL

First Court of Appeals tried to outsupreme the Supremes on behalf of med-mal defendants: SoL does not bar med-mal suit over surgical sponge left in body and undiscovered for more than 2 years after all -- but only for so many years (see below):
Walters v. Cleveland Regional Medical Center No. 08-0169 (Tex. Mar. 12, 2010)(Willett) (medical malpractice, surgical sponge left in body of patient, statute of limitations, open courts argument)
TANGIE WALTERS v. CLEVELAND REGIONAL MEDICAL CENTER, SHIRLEY KIEFER, AND KEITH SPOONER, M.D.; from Harris County; 1st district (01-06-01068-CV, 264 SW3d 154, 12-20-07)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Willett delivered the opinion of the Court. [pdf]
View Electronic Briefs in 8-0169 WALTERS v. CLEVELAND REGIONAL MED. CENTER

SUPREME ENDORSE ABSOLUTE PROTECTION: Tough luck, lady - The Legis wants you to lose
STATUTE OF REPOSE USED TO DEFEAT OBVIOUS (RES IPSA LOQUITUR) MEDICAL MALPRACTICE INVOLVING SURGICAL SPONGE LEFT IN WOMAN'S BODY AFTER HYSTERECTOMY:
Methodist Healthcare Systems of San Antonio, Ltd. v. Rankin, No. 08-0316 (Tex. Mar. 12, 2010)(Willett) (statute of repose, health care liability claim, res ipsa loquitur)
METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., L.L.P., W.C. SCHORLEMER, M.D., AND ROBERT SCHORLEMER, M.D. v. EMMALENE RANKIN; from Bexar County;
4th district (04-07-00305-CV, 261 SW3d 93, 03-05-08) 2 petitions
The Court reverses the court of appeals' judgment and renders judgment.
Justice Willett delivered the opinion of the Court. [pdf]
View Electronic Briefs 08-0316 METHODIST HEALTHCARE SYSTEM OF SAN ANTONIO, LTD., L.L.P. v. RANKIN

SUPREMES ADD YET ANOTHER FACET TO MANDAMUS JURISPRUDENCE; GRANT MANDAMUS AFTER SUPREME COURT APPEAL TO MAKE SURE EXEMPLARY DAMAGES IN RARE PLAINTIFF'S WIN GET REDUCED
In Re Columbia Med. Center of Las Colinas, Inc., No. 09-0733 (Tex. Mar. 12, 2010)(per curiam)
(exemplary damages reduced by mandamus after post-appeal final judgment)
IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, INC. D/B/A LAS COLINAS MEDICAL CENTER; from Dallas County
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the writ of mandamus.
Per Curiam Opinion [pdf]
View Electronic Briefs in 09-0733 IN RE COLUMBIA MED. CTR. OF LAS COLINAS, INC.

Another Class Action Dismantled by Texas Supreme Court

CERTIFIED CLASS IN ACTION SEEKING REMEDY FOR OVERCHARGES FOR TELEPHONE SERVICE UNDONE

SWBT Co. v. Marketing on Hold, Inc,. No. 05-0748 (Tex. Feb. 19, 2010)(Majority opinion by Wainwright) (class action, class decertified in interlocutory appeal, standing)
[B]ecause the putative class representative failed to establish that it adequately represents the class, we reverse the judgment of the court of appeals and decertify the class.
SOUTHWESTERN BELL TELEPHONE COMPANY v. MARKETING ON HOLD, INC. D/B/A SOUTHWEST TARIFF ANALYST; from Cameron County; 13th district (13-03-00287-CV, 170 SW3d 814, 08-04-05) emergency motion for expedited decision dismissed as moot
motion to dismiss denied
motion for damages and sanctions denied
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Wainwright delivered the opinion of the Court, in which Justice Hecht, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Harriet O'Neill delivered a dissenting opinion in SW Bell Telephone Co. v. Marketing on Hold (Tex. 2010) in which Chief Justice Jefferson and Justice Medina joined.
Considering the absence of any realistic potential for conflict or antagonism between STA and the class, together with STA’s demonstrated superior expertise in the subject matter of the litigation, I would hold that STA has satisfied the adequacy requirement and affirm certification of the class. Because the Court concludes otherwise, I respectfully dissent.
(Justice Guzman not sitting)

OTHER OPINIONS RELEASED TODAY:

City of Waco v. Kelley, No. 07-0485 (Tex. Feb. 19, 2010)(Johnson)(municipal civil service disciplinary proceeding, judicial review of hearing examiner's decision, jurisdiction issue)
CITY OF WACO, TEXAS v. LARRY KELLEY; from McLennan County;
10th district (10-03-00214-CV, 226 SW3d 672, 05-02-07)
The Court reverses the court of appeals' judgment and remands the case to the trial court
Justice Phil Johnson delivered the opinion of the Court.

City of Dallas v. Abbott, AG, No. 07-0931 (Tex. Feb. 19, 2010)(Majority opinion by O'Neill) (Public Information Act (PIA)) (exceptions from mandatory disclosure)
CITY OF DALLAS v. GREG ABBOTT, ATTORNEY GENERAL OF TEXAS; from Travis County;
7th district (07-06-00161-CV, 279 SW3d 806, 08-13-07)
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 Hecht, Justice Medina, Justice Green, and Justice Guzman joined.
Justice Dale Wainwright delivered a dissenting opinion in City of Dallas v. Abbott,
in which Justice Johnson joined.
(Justice Willett not sitting)

SUPREMES TELL 8o-year OLD FRAIL LADY TO GO LITIGATE ELSEWHERE
In re ADM Investor Services, Inc., No. 08-0570 (Tex. Feb. 19, 2010)(Opinion by Green) (forum selection clause enforced by mandamus) (poor health of elderly plaintiff rejected as reason for keeping case in Texas)
IN RE ADM INVESTOR SERVICES, INC.; from Rains County;
12th district (12-08-00125-CV, 257 SW3d 817, 06-30-08)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus.
Justice Green delivered the opinion of the Court.
Justice Don R. Willett delivered a concurring opinion in In re ADM Investor Services, Inc.

Opinions Handed Down February 12, 2010

Galveston I.S.D. vs. Jaco, No. 09-0195 (Tex. Feb. 12, 2010)(per curiam)
(WBA case remanded to the court of appeals to determine whether plaintiff has alleged a violation under the Texas Whistleblower Act under the court's new holding in State v. Lueck, in which the Court elevated the sufficiency of the facts pleaded in support of each element of the claim to a jurisdictional matter)
GALVESTON INDEPENDENT SCHOOL DISTRICT v. BRENT JACO; from Galveston County;
14th district (14-08-00271-CV, 278 SW3d 477, 01-20-09)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion
(Justice Guzman not sitting) [she wrote the opinion in the court of appeals below]

In the Matter of R.D., No. 09-0343 (Tex. Feb. 12, 2010)(per curiam)(juvenile delinquency proceedings, error preservation for appellate review by means of motion for new trial)
The Texas Supreme Court concludes that [the juvenile's] general challenge to the sufficiency of the evidence to support the jury's delinquency finding met Rule 324's requirement for preserving his challenge to the jury's rejection of his affirmative defense.
IN THE MATTER OF R.D., A JUVENILE; from Bexar County; 8th district (08-07-00100-CV, ___ SW3d ___, 03-12-09)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion

ORDERS ON PETITIONS FOR REVIEW: THE FOLLOWING PETITION FOR REVIEW IS ABATED:
Gallagher Headquarters Ranch Development, Ltd., No. 08-0773 (Tex. Feb. 12, 2010)(per curiam)(petition abated, findings of fact requested from trial court, scope of release pursuant to settlement at issue)
GALLAGHER HEADQUARTERS RANCH DEVELOPMENT, LTD., CHRIS HILL AND JULIE HOOPER v. CITY OF SAN ANTONIO AND CITY PUBLIC SERVICE; from Bexar County; 4th district (04-07-00325-CV, 269 SW3d 628, 07-23-08) abatement order issued
The petition is abated and remanded to the trial court for findings of fact. The trial court shall submit its findings to this Court no later than May 3, 2010. The parties may, within thirty days after the trial court's findings are submitted, provide a supplementary brief to this Court.
Per Curiam Opinion (Justice Hecht not sitting)