CLE: 2009: Texas Supreme Court Updates and Trends

Dublin Core

Title

CLE: 2009: Texas Supreme Court Updates and Trends

Creator

L. Wayne Scott

Publisher

St. Mary's University School of Law San Antonio Texas Alumni Homecoming, St. Mary's University School of Law Alumni Homecoming

Date

2009-03-27

Relation

St. Mary's University School of Law Alumni Homecoming

Format

RFC3778

Language

English, en-US

Type

Text

Identifier

STMU_HomecomingCLE2009Scott

PDF Search

Text

-

ST. MARY'S UNIVERSITY SCHOOL OF LAW
ALUMNICLEPROGRAM
MARCH 27, 2009
Summaries

of the

-

-

OPINIONS OF THE

TEXAS SUPREME COURT
March 28, 2008- March 27, 2009
by

-

-

Professor L. Wayne Scott
Director Conflict Resolution Studies
St. Mary's University School of Law

Disclaimer: The summaries that follow were prepared for the State Bar of Texas Civil
Digest. It is the long established policy of the Digest to eliminate all quotation marks.
Hence, some of these summaries contain unmarked direct quotes from the opinions
summarized, as well as unmarked quotes from cases quoted within the opinion that is the
subject ofthe summary. LWS.

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 1

-

-

Biographical Sketch
Professor L. Wayne Scott
BA Southwest Texas

-

JD UT School of Law
MA Baylor
Post Graduate Study: New York University; Harvard.
Briefing Attorney Court of Criminal Appeals (1962-1963).
Private Practice Waco, Texas (Associate and Partner in firm that is now Sheehy, Lovelace
and Mayfield] (1964-1971).
U.S. Commissioner, Western District of Texas (Waco Division) (1967-1971).

-

Lecturer Baylor School of Law (1968-1971).
Professor of Law St. Mary's University (1971-present).
Editor, State Bar of Texas Civil Digest (and its predecessor publications)-(1971-present).
Currently Director of Conflict Resolution Studies at St. Mary's University.
Board Certified: Civil Appellate, Civil Trial, Personal Injury Law.
Course Director St. Mary's Procedural Law and Tort Institutes; Course Director ADR
Court 1987, Course Director 2nd Advanced Appellate Practice Course 1988.
Chair Appellate Practice Section, State Bar of Texas (1993-1994).

-

Teaching: Current courses are Texas Civil Procedure: Pre-trial, Texas Civil Procedure:
Trial and Appellate, mediation, Negotiation, and Law and Philosophy, but has taught,
among others, courses in Appellate Practice, Jurisprudence, Evidence, Federal Courts,
Criminal Law and Criminal Procedure, Workers Compensation, and Land Use
Management. Instructor for the Attorney Mediator's Institute and the World Legal
Problems in lnnsbruck, Austria (1993, 1994, 1995).
Author: Scott, SOURCE BOOK OF TEXAS CIVIL PROCEDURE (1981) ; Flint and Scott,
TEXAS CIVIL PROCEDURE: PRETRIAL (Revised Annually, 1999-2006); Flint and Scott,
TEXAS CIVIL PROCEDURE: TRIAL AND APPEAL (Revised Annually 1999-2006); The
Law ofMediation, 37 St. Mary's L.J. 325 (2006), and numerous articles and continuing legal
education presentations.
Moderator: State Bar of Texas Supreme Court Telephone Updates (with Mike Hatchell,
Rusty McMains, Judge Sarah Duncan, and Bill Dorseano), as well as other Telephone
Seminars on Ethics, Negotiation, and Mediation
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 2

-

Table of Authorities

Cases

20801, Inc. v. Parker, 249 S.W.3d 392 (Tex. 3/28/2008) ............................................... 17
Adams v. YMCA ofSan Antonio, 265 S.W.3d 915 (Tex. 9/26/2008)......... ................. 79
A nsell Healthcare Products, Inc. v. Owens & Minor, Inc. , 251 S.W.3d 499
(Tex. 2008) ................... ..................................... ............................................................ 21

Baker v. State, 956 S.W.2d 19, 23 (Tex. Crim. App. 1997), .......................................... 23
Barrera v. Rico, 251 S.W.3d 519 (Tex. 4/18/2008) ...................... ........................... ....... 30
BIC Pen C01p. v. Carte1; 251 S.W.3d 500 (Tex. 4/18/2008) ................................ 27, 102
Bismar v. Morehead, 262 S.W.3d 805 (Tex. 8/29/2008) .. ............................................. 73
Brookshire Grocery Co. v. Goss, 262 S.W.3d 793 (Tex. 8/29/2008)......................... ... 72
Burden v. Johnson & Johnson Med, 447 F.3d 371, 375 (5th Cir. 2006)), ................... 21
Bushnell v. Mott, 254 S.W.3d 451 (Tex. 3/28/2008) ...................................................... 19
Canyon Regional Water A uthority v. Guadalupe-Blanco River Authority, 258
S.W.3d 613 (Tex. 5/16/2008) ....................................................................................... 36

Center for Neurological Disorders, P.A. v. Roger P. George, 253 S.W.3d 217
(Tex. 2008) ................................................................................................................... 26

Chau v. Riddle, 254 S.W.3d 453 (Tex. 5116/2008) ......................................................... 38
Chu v. Hong, 249 S.W. 3d 441 (Tex. 3/28/2008) ............................................................. 13
City ofCorsicana v. Stewart, 249 S.W.3d 412 (Tex. 3/28/2008).................. ................ 19
City ofDa/Jas v. DeQuire, 249 S.W.3d 428 (Tex. 3/28/2008) ....................................... 16
City ofDa/Jas v. Reed, 258 S.W.3d 620 (Tex. 5116/2008) ..... ........................................ 38
City of Waco v. Lopez, 259 S.W.3d 147 (Tex. 7/11/2008) ............................................. 58
Continental Casualty Co. v. Downs, 81 S.W.3d 803, 804, 807 (Tex. 2002), ........... ..... 93
County ofDallas v. Sempe, 262 S.W.3d 315 (Tex. 3/28/2008) ..................................... 10
Dallas A rea Rapid Transit v. Amalgamated Transit Union Local No.l338, 273
S.W.3d 659 (Tex. 12/1 9/2008)................................................................................ ..... 94

-

.....

David J. Sacks, P.C v. Haden, 266 S.W.3d 447 (Tex . 7111/2008).......................... 59, 80
Davis v. Fisk Electric Co., 268 S.W.3d 508 (Tex. 9/26/2008) ....................................... 76
diga v. Lopez, --- S.W.3d ----,2009 WL 5 1568,52 Tex. Sup. Ct. J. 267 (1 /9/2009) .. .... 98
DiGiuseppe v. Lawler, 269 S.W.3d 588 (Tex. 10117/2008)............................... ............ 81
Dixon v. Van Waters and Rogers, 682 S.W.2d 533, 533-34 (Tex . 1984) ......... ... ......... 48
erlin v. Sausceda, 263 S.W.3d 920 (Tex.l0/10/2008) ..................................................... 80
Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., 256 S .W.3d 660 (Tex.
6/ 13/2008)..................................................................................................................... 46
Federal Ins. Co. v. Samsung Electronics America, 268 S.W.3d 506 (Tex. 8/29/2008) .
....................................................................................................................................... 71
First A merican Title Ins. Co. v. Combs, 258 S.W.3d 627 (Tex. 5/ 16/2008) ................ 34

FKM Partnership, Ltd. v. Board ofRegents of the University of Houston System,
255 S.W.3d 610 (Tex. 6/6/2008) .................................................................................. 44

Frymire Engineering Co., Inc. v. Jomar Int'l, Ltd , 259 S.W.3d 130 (Tex.

-

6/ 13/20086/13/2008 .......... .... ...... ........... ....................................................................... 49
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scot t Page 3

-

-

G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W .2d 544 (Tex.1929) ........... 113
Gardner v. U.S. Imaging, Inc.,--- S.W.3d ----, 2008 WL 5266383 (Tex. 12/19/2008). 97
General Elec. Co. v. Moritz, 257 S. W.3d 311 (Tex. 6113/2008) .................................... 46
Graber v. Fuqua, --- S.W.3d ----, 2009 WL 51570, 52 Tex. Sup. Ct. J. 249 (1/9/2009).97
Graham Oaks Care Center Inc. v. Allagra Farabee, 251 S.W.3d 63 (Tex. 2008) ...... 26
Guitar Holding Co., L.P. v. Hudspeth County Underground Water Conservation
District No.1, 263 S.W.3d 910 (Tex. 5/30/2008) ........................................................ 41
Gurkoffv. Jersak, --- S.W.3d ----, 2009 WL 490081 (Tex.), 52 Tex. Sup. Ct. J. 403
(Tex. 2/27/2009) ........................................................................ ................................. 112
Hamilton v. Wilson, 249 S.W.3d 425 (Tex. 3/28/2008) . .......... ...................................... 20
Higgins v. Randall County Sheriff's Office, 257 S.W.3d 684 (Tex. 5/16/2008) .......... 37
Hill Regional Hospital v. Maxine Runnels, 253 S.W.3d 213 (Tex. 2008) .................... 26
Igal v. Brightstar Information Technology Group, Inc., 250 S.W.3d 78 (Tex.
5/2/2008) ................................................................................... .................................... 33
In Re Bank ofAmerica, N. A., --- S.W.3d ----, 2009 WL 490065 (Tex.), 52 Tex. Sup.
Ct. J. 400 (Tex. 2/27/2009) ......................................................................................... 110
In re Baylor Medical Center at Garland, --- S.W.3d ----, 2008 WL 3991132, 51 Tex.
Sup. Ct. J. 1334 (8/29/2008) ......................................................................................... 74
In re Bazan, 251 S .W.3 d 39 (Tex. 3/28/2008) . ....................................... ..... ... ................ 18
In re Buster, --- S.W.3d ----, 2008 WL 4891764, 52 Tex. Sup. Ct. J. 112 (Tex.
11/14/2008). ············· ···· ·· ····· ·························································································· 87
In re Caballero, 272 S.W.3d 595 (Tex. 12/19/2008) . ................................................. .... 96
In re Chambless, 257 S.W.3d 698 (Tex. 6/27/2008) ........ .............................................. 56
In re Citigroup Global Markets, Inc., 258 S.W.3d 623 (Tex. 5/16/2008).................... 37
Ill re Coppock, --- S.W.3d ----, 2009 WL 353499, 52 Tex. Sup. Ct. J. 361 (2/ 13/2009).
··································· ····························································· ····································· 106

-

In re D.F, 260 S.W.3d 461 (Tex. 2008) . .............................................................. ........... 61
In reD. W., T. W., and S.G , 260 S.W.3d 462 (Tex. 2008) ............................ ................. 61
In re Dep't ofFamily & Protective Services, 273 S.W.3d 637 (Tex. 1/9/2009) ......... 100
In re Department ofFamily and Protective Services,_ S.W.3d _ (Tex. 2008) ........ 41
In re Fleetwood Homes of Texas, L.P., 257 S.W.3d 692 (Tex. 6/20/2008) .................. 51
In re G.B., P.B., N.B., and V.R , 264 S.W.3d 742 (Tex . 8/29/2008) ...... ...... ..... ............ 74
InreGeneralEJec. Co.,271 S.W.3 d681 (Tex.12/5/2008) ........................................... 92
In re GlobalSantaFe Corp., --- S.W.3d ----,2008 WL 5105257, 52 Tex. Sup. Ct. J. 159
(12/5/2008). ····························· ················································ ······································ 91

In re H. V, 252 S.W.3d 319 (Tex. 4/1 1/2008) ................................................. ................ 23
In re International Profit Associates, Inc.,--- S.W.3 d ----,2009 WL 51567, 52 Tex.
Sup. Ct. J. 272 (119/2009) . ...................................... ....................... ............................... 98
In reJ.J, 260 S.W.3d 461 (Tex. 2008) . .......................................................................... 61
In Re Jindal Saw Limited, --- S.W.3d ----, 2009 WL 490082 (Tex.), 52 Tex. Sup. Ct. J.

-

407 (Tex. 2/27/2009) . ............................................ ..................................................... 112
In re Jorden, 249 S.W.3d 416 (Tex. 3/28/2008) . ............................. ... ...................... 15, 73
In reKC.B , 251 S.W.3d 514 (Tex. 4/18/2008) . ............................................................ 31
In re K W. and M.A., 260 S. W .3d 462 (Tex. 2008) ............... ............... .... ..................... 60
In re Kiberu, 262 S.W.3d 806 (Tex. 8/29/2008) ............. ................................................ 73

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 4

In re Labatt Food Services, L.P , --- S.W.3d ----, 2009 WL 353524, 52 Tex. Sup. Ct. J.
352 (2/13/2009) ........................................................................................................... 104

In Re Lovito-Nelson, --- S.W.3d ----, 2009 WL 490067 (Tex.), 52 Tex. Sup. Ct. J. 405

-

(Tex. 2/27/2009) .......................... ............................................................................... 111

In re Lyon Financial Serv., Inc. , 257 S.W.3d 228 (Tex. 6/20/2008) ............................. 52
In re MN , 262 S.W.3d 799 (Tex. 8/29/2008)................................................................ 72
In re McAllen Medical Center, Inc.,--- S.W.3 d ----,2008 WL 4051053 (Tex.), 51 Tex.
Sup. Ct. J. 1302 (5116/2008) ......................................................................................... 34

In re Office of the Attorney General, 257 S.W.3d 695 (Tex. 6/27/2008) ..................... 57
In re Poly-America, L.P., Ind , 262 S.W.3d 337 (Tex. 8/29/2008) . .............. ................ 63
InrePrudentialins. Co. ofAm. , 148 S.W.3d 124,3 0- 33 (Tex. 2004) - ............ 44, 110
In re Roberts, 255 S.W.3 d 640 (Tex. 6/6/2008) ........................................ ...................... 43
In re S.KA., MA., and S.A. , 260 S.W.3d 463 (Tex. 2008) ........................................... 60
In re Team Rocket, L.P , 256 S.W.3d 257 (Tex. 5/23/2008) ......................................... 39
In re Texas Dept. ofFamily an d Protective Services, 255 S.W.3d 613 (Tex.
5/29/2008) . . ···························· ................................................................................. 40, 41
In re Texas Dep t. ofFamily and Protective Services, 255 S. W.3d 618 (Tex.
5/29/2008) ............................................................................................................... 40, 41
In re Transcontin ental Realty Investors, Inc. , 271 S.W.3d 270 (Tex. 11/14/2008) .... 85
In reUnion Carbide Corp., 273 S.W.3d 152 (Tex. 11114/2008) ....... ............................ 86
In re Watkins,--- S.W.3 d ----, 2009 WL 153251 , 52 Tex. Sup. Ct. J. 309 (1123/2009).
····························· ·· ········································ ·············· ······················ ·························· 102

In re Zandi, 270 S .W.3d 76 (Tex. 5/30/2008) ........................................................... 42, 96
JCW Electronics v. Garza, 257 S.W.3d 701 (Tex. 6/27/2008) ............. ......................... 55
Kao Holdings, L.P. v. Young, 261 S.W.3d 60 (Tex. 6113/2008) .................... ........ ........ 50
Kerlin v. Arias,--- S.W.3d ----,2008 WL 4891 729 (Tex.), 52 Tex. Sup. Ct. J. 103
(Tex. 11/14/2008) ................................................ .......................................................... 84

Kerlin v. Sauceda, 263 S.W.3d 920 (Tex. 8/29/2008) .................................................... 74
Leland v. Branda/, 257 S.W.3d 204 (Tex. 2008), ................................... .................. 50, 97
Lewis v. Funderbruck, 253 S.W.3d 204 (Tex. 4/1112008) ................................ ............. 24
Lou Virginia Danos v. Kevin Rittger, M.D., 253 S.W.3d 215 (Tex. 2008) .................. 26
Lowenberg v. City ofDallas, 261 S.W.3d 54 (Tex. 3/28/2008) ..................................... 14
Martinez-Partido v. Methodist Specialty and Transplant Hosp., 267 S.W.3d 881
(Tex . 9/26/2008) .................................................................................... ,............ .......... 78

Medical City Dallas, Ltd. v. Carlisle Corp. , 251 S.W.3d 55 (Tex . 4/1112008) ............ 26
Metwest Inc. v. Miguel Rodriguez Jr., 253 S.W.3d 212 (Tex. 2008) . .......................... 26
Miranda v. Arizona, 384 U.S. 436 ( 1966) ...................................................................... 23
Mission Consol. Independent School Dist. v. Garcia, 253 S.W.3d 653 (Tex.28/2008) .

-

............ .. ... .... ..... ................ ........... ... ..... ····························· ................................. ............ 11
Murffv. Pass, 249 S.W.3d 407 (Tex. 3/28/2008) ............ ... ........... ................................. 20
n re NEXT Financial Group, Inc. , 27 1 S.W.3d 263 (Tex. 11/ 14/2008) ........................ 87
Nationwide Ins. Co. v. Elchehimi, 249 S.W.3d 43 0 (Tex . 3/28/2008) . ............ ............. 12
New Texas Auto Auction Services, L.P. v. Gomez De Hernandez, 249 S.W.3 d 400
(Tex. 3/28/2008)......................... .. ................................................................................ 17
nited States Fidelity and Guar. Co. v. Goudeau, 272 S.W.3d 603 (Tex. 12/19/2008). 95

Summaries of the opinions of the Texas Supreme Cou rt 3/28/08-3/27/09 - By L. Wayne Scott Page 5

-

oastal Oil & Gas Corp. v. Garza En ergy Trust, 268 S.W.3d 1

-

2009 WL 353522, 52 Tex. Sup. Ct. J. 358 (2/13/2009) .............................................. 105
Owens & Minor, Inc. v. A nse/1 Hea/thcare Products, In c., _ S.W.3d _ (Tex.
3/28/2008), !d. a t _ .................................................................................................... 21
Parker v. Highland Park, 565 S.W.2d 512, 517 (Tex. 1978) ........................................ 48
Perry Homes v. Cu/J, 258 S.W.3 d 580 (Tex.5/2/ 2008).................................................. 31
Perry v. Cohen , 272 S.W.3d 585 (Tex. 11 / 14/2008) ..... ... ............................................... 84
Philip A. Moore, M.D. v. Kristy Ga tica, 253 S.W.3d 2 19 (Tex. 2008) ........................ 26
Phillips v. B ramlett, --- S.W.3d ----, 2009 WL 567889 (Tex.3/26/2009) ..................... 112
Pine Oak Builders, Inc. v. Great A merican Lloy ds Ins. Co.,--- S.W.3d ----,2009 WL
353526, 52 Tex. Sup. Ct. J. 348 (2/ 13/2009) .................... .......................................... 102
Pleasant Glade A ssembly of God v. Schubert, 264 S.W.3d 1 (Tex. 6/27/2008) . ......... 54
Porter v. Vick, 888 S.W.2d 789,789 (Tex. 1994) ............................................................ 74
Providence Health Center v. Dowell, 262 S.W.3d 324 (Tex. 5/23/2008) . .................... 38
Pruett v. Harris County Bail Bond Bd , 249 S.W.3d 447 (Tex. 3/28/2008)................. 11
R eata Constr. Corp. v. City ofDallas, 197 S.WJd 371 (Tex. 2006) ............................ 16
Regent Care Center ofSan A ntonio II, L td. v. Hargrave, 251 S.W.3d 517 (Tex.
4/18/2008) ................. ······················································· ............................................. 30
Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867 (Tex. 9/26/2008) ............ 77
R etamco Operating, Inc. v. McCallum, --- S.W.3d ----, 2009 WL 490088 (Tex.), 52
Tex. Sup. Ct. J. 404 (Tex. 2/27/2009) .......... ..... ...................... .... ................................ 110
R etamco Operating, Inc. v. R epublic Drilling Co. , --- S.W.3d ----, 2009 WL 490063
(Tex.), 52 Tex. Sup. Ct. J. 395 (Tex. 2/27/2009) ................................................ 107, 110
Roberto Diaz-Rohena, M.D. v. Cyn thia S. Melton, 253 S.W.3d 218 (Tex. 2008) ....... 26
Sells v. Drott, 259 S.W.3 d 156 (Tex. 7/ 11/2008) ............................................................ 60
S onat Exploration Co. v. Cudd Pressure Control, Inc., 27 1 S.W.3d 228 (Tex.
11/21/2008) ......... ····· ..............··························· .............................. ······························ 89
Southwestern B ell Telephone Co., L.P. v. Mitchell,--- S.W.3d ----,2008 WL 5266380
(Tex. 12/19/2008) ........................ ................................................................................. 93
SSP Partners v. Gladstrongln vestments (USA) Corp. ,--- S.W.3d ----,2008 WL
4891733, 52 Tex. Sup. Ct. J. 95 (1 1114/2008).............................................................. 83
State of Texas v. Brown, 262 S.W.3d 365 (Tex. 8/29/2008).......................................... 67
State of Texas v. Dawmar Partners, L td , 267 S.W.3d 875,5 1 Tex. Sup. Ct. J. 1447
(Tex. 9/26/2009) ........................................................................................................... 80
Talamantez v. S trauss, 774 S.W.2d 661 (Tex. 1989) ......................... ........ .................... 18
Texas Dept. of Transp. v. York, --- S.W.3d ----, 2008 WL 5 105254, 52 Tex. Sup. Ct. J.
175 ( 12/5/2008) ............................................................................................................. 92
Texas M ut. Ins. Co. v. Ledbetter, 25 1 S.W.3 d 31 (Tex. 4/4/2008)............................... 2 1
Trammell Cro w Center Texas, Ltd. v. Gutierrez, 267 S.W.3d 9 (Tex. 8/29/2008) .... 76
Trend Offset Printing Services, Inc. v. Collin County Community College Dist, 249
S.W.3d (Tex. 3/28/2008).............................................................................................. 15
Trinity Universal Ins. Co. v. Cellular One Group, 268 S.W.3d 505 (Tex. 8/29/2008).

-

-

-

-

-

(Tex. 8/29/2008) . ..................................... .............................................................. ....... 67

Old Farms Owners A ss'n, Inc. v. Houston Independent School Dist , --- S.W.3d ----,

···················· ··················································································································· 72

Summaries of the opinio ns of th e Texas Su pr eme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 6

-

TXI Operations, L.P. v. Perry, --- S.W.3d ----, 2009 WL 490059 (Tex.), 52 Tex. Sup.
Ct. J. 388 (Tex. 2/27/2009) . ............................................ ............................................ 107
Ulico Cas. Co. v. Allied Pilots Ass'n, 262 S.W.3d 773 (Tex. 8/27/2008) ...................... 69
Unauthorized Practice of Law Committee v. American Home Assur. Co., Inc., 261
S.W.3d 24 (Tex. 3/28/2008) . ........ .... .... ................. ................. ........................................ 8

UniversityofTexas-Pan American v. Aguilar, 251 S.W.3d 511 (Tex. 411 8/2008) ..... 30
utoZone, Inc. v. Reyes, 272 S.W.3d 588 (Tex . 12/5/2008) ............................................. 92
Vil/afani v. Trejo, 251 S.W.3d 466 (Tex. 2008) ............................... ..... ................... 28, 30
Wagner & Brown Ltd. v. Sheppard, --- S.W.3d ----, 2008 WL 4958501 , 52 Tex. Sup.
Ct. J. 130 (Tex. 11/21/2008) ................................................................................. .... .... 88
Wendy Collini, M.D. v. Martha Pustejovsky, 253 S.W.3d 216 (Tex. 2008) ................ 26
Zurich American Ins. Co. v. Nokia, Inc. 268 S.W.3d 487 (Tex. 2008) . ....................... 70
Zurich American Insurance Co. v. Nokia, _ S.W.3d _ , .................................. 71 ,72

-

-

-

-

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 7

-

SIGNIFICANT DECISION
Unauthorized Practice ofLaw Committee v. American Home Assur. Co., Inc., 261
S.W.3d 24 (Tex. 3/28/2008).
Opinion By: Justice Hecht; Justice Johnson filed a dissenting opinion, joined by Justice
Green.

Attorneys. Corporation In-House Counsel Cannot, Generally, Represent Others.
Generally, a corporation can employ attorneys in-house to represent its own interests, but
cannot engage in the practice of law, by providing legal representation to others with
different interests. A corporation does not engage in practicing law by employing an
attorney to represent itself, together with the common interests of other employees and
affiliates.

-

Insurance Staff Attorneys May, With Limitations, Represent The Insured.
A liability insurer may use staff attorneys to defend a claim against an insured, if the
insurer's interest and the insured's interest are congruent, but not otherwise. Their
interests are congruent when they are aligned in defeating the claim, and there is no
conflict of interest between the insurer and the insured. A staff attorney must fully
disclose to an insured his or her affiliation with the insurer.

-

Insurance. Procuring Reservation Of Rights Not Practice Of Law.
An insurer, obtaining a non-waiver agreement (a reservation of rights) from its insured, is
seeking to protect its own interests, rather than those of its insured, and thus is not
unlawfully practicing law, because the insurer' s interest in reserving coverage issues was
distinct from, if not contrary to, any interest which the insured had in the matter.

-

-

Practice Of Law. Three Factors To Consider Whether Corporation Practices Law.
There are three factors to be considered in determining whether a corporation engages in
the practice of law by employing staff attorneys to provide legal services to someone
other than the corporation, and more particularly, whether a liability insurer is practicing
law by using staff attorneys to defend claims against insureds. One factor is whether the
company' s interest being served by the rendition of legal services is existing or only
prospective. A second factor is whether the company has a direct, substantial financial
interest in the matter for which it provides legal services. Most important, however, is a
third factor: whether the company's interest is aligned with that of the person to whom
the company is providing legal services. When the company and its employee or affiliate
has common interests, a staff attorney can represent them both because, "there is for all
practical purposes only one client involved." Applying these factors, a liability insurer
does not engage in the practice of law by providing staff attorneys to defend claims
against insureds, provided that the insurer's interests and the insured's interests in the
defense in the particular case at bar are congruent. In such cases, a staff attorney's
representation of the insured and insurer is indistinguishable.

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 8

-

-

-

-

-

-

-

-

Attorneys; Staff. Reservation Of Rights Does Not Automatically Create A Conflict
Of Interest.
When an insurer is concerned that there may be a coverage issue, it usually issues a
reservation-of-rights letter when it accepts the defense, agreeing to defend the insured
without waiving its right to decline coverage later. A reservation-of-rights letter
ordinarily does not, by itself, create a conflict between the insured and the insurer; it only
recognizes the possibility that such a conflict may arise in the future. Declining
representation by an insurance company staff attorney is the safer course to avoid
conflicts that destroy the congruence of interest between the insurer and the insured that
allows for the use of staff attorneys. However, a blanket rule cannot be established that a
staff attorney can never represent an insured under a routine reservation of rights.
Attorneys; Staff. Acquisition Of Confidential Information Does Not Automatically
Disqualify.
It is not unusual for defense counsel to acquire information that the insured could expect
to be kept confidential and not disclosed to the insurer. The information may relate to
coverage, to underwriting issues such as whether a policy should be cancelled or not
renewed, or to other matters. Counsel's acquisition of such information may necessitate
withdrawal from the representation, whether the attorney is on staff or in private practice.
While these problems present risks to the insurer in using staff counsel, they do not
necessarily destroy the congruence of the insurer's and insured's interest.
Attorneys, Staff. Stowers Does Not Automatically Disqualify A Staff Attorney.
An insurer has a so-called Stowers duty to accept a claimant's reasonable offer to settle
within policy limits or stand to an excess judgment. Defense counsel, whether private or
on staff, owes the insured unqualified loyalty. It is possible that counsel will fail to render
that loyalty, but it cannot be presumed that a staff attorney is more likely to do so,
especially absent any evidence of a complaint ever having been made.
Insurance Attorney May Represent Both the Insurer And The Insured, As Long As
There Is No Conflict.
The courts have never held that an insurance defense lawyer cannot represent both the
insurer and the insured, only that the lawyer must represent the insured and protect his
interests from compromise by the insurer. An insurer's right of control generally includes
the authority to make defense decisions as if it were the client, where no conflict of
interest exists. Rule 1.06 of the Texas Disciplinary Rules of Professional Conduct allows
a lawyer to represent more than one client in a matter if not precluded by conflicts
between them. Whether defense counsel also represents the insurer is a matter of
contract between them.
Limitations On The Use Of Attorneys On Staff Of Insurance Companies In
Representing Insured.
If an insurer's interest conflicts with an insured's, or the insurer acquires confidential
information that it cannot be permitted to use against the insured, or an insurer attempts
to compromise a staff attorney's independent, professional judgment, or in some other
way the insurer's and insured's interests do not have the congruence they have in the
Summar ies of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 9

-

-

-

-

-

many cases in which they are united in simple opposition to the claim, then the insurer
cannot use a staff attorney to defend the claim without engaging in the practice of law.
But there are a great many cases that can be defended by staff attorneys without conflict
and to the benefit of mutual interests. The use of staff attorneys in those cases does not
constitute the unauthorized practice of law.
Insurance Defense Is Not Barratry Prohibited By Section 38.123, Tex. Penal Code.
Section 38.123 of the Texas Penal Code does not prohibit an insurer from contracting
with private counsel to represent an insured. Paragraph (a) could be read to prohibit a
staff attorney from agreeing to represent an insured, if the agreement were really between
the staff attorney's employer, the insurer, and the insured. One might argue that the
agreement in that situation was between the staff attorney and the insured, since only the
attorney could provide legal representation, even though the insurer made the staff
attorney available. Section 38.123 was not intended to address liability insurers' defense
of their insureds. That is clear from paragraph (a) (5), which prohibits any contract that
grants one party the exclusive right to select and retain legal counsel to represent the
other. Since liability insurance policies commonly give that right to insurers, and have for
many years, section 38.123 would make every insurer a felon . It "is simply too much to
believe" that the Legislature had that in mind when it enacted section 38.123, and the
Court is sure that liability policy provisions giving insurers the right to control the
defense have not changed since its enactment. What the Legislature had in mind when it
enacted the statute in 1993 was stiffer prohibitions against barratry. That was the subject
of the bill as enacted, as well as a related bill, and the publicly announced motivation of
the sponsor and supporters, including the State Bar of Texas. Insurance defense is not
balTatry.

Insurance Staff Attorney Must Disclose That The Insurer Is The Employer.
A staff lawyer must fully disclose to a represented insured the identity of the lawyer's
employer.

-

************************************************************************
************************************************************************
County of Dallas v. Sempe, 262 S.W.3d 315 (Tex. 3/28/2008).
Opinion By: Per Curiam

-

-

Supreme Court Jurisdiction. Conflict With U.S. Supreme Court? Question Is Not
Answered.
The Supreme Court's jurisdiction to consider an interlocutory appeal of an order denying
a plea to the jurisdiction is limited by statute to cases in which the justices of the court of
appeals "disagree on a question of law material to the decision" or in which the court of
appeals' opinion conflicts with a prior decision of the Supreme Court or of another Texas
court of appeals. Here, no dissent and no conflict with an opinion of a Texas court exists.
A conflict with decisions of the U. S. Supreme Court is alleged. Even if, as argued, the
Legislature's narrow grant of jurisdiction does not extend to reviewing interlocutory
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 10

-

-

appeals that may conflict with decisions of the United States Supreme Court, no conflict
is found with the cases cited, which is sufficient to invoke the Supreme Court's
jurisdiction.

************************************* ** *********************************
**************************************************************** ********
Pruett v. Harris County Bail Bond Bd. , 249 S.W.3d 447 (Tex. 3/28/2008).
Opinion By: Justice O'Neill
Bail Bond Regulations Within Board's Power. "Open Warrant" and "Twenty-four
Hour Rules" Invalid; Non-Business Hours Rule Valid.
The Harris County Bail Bond Board, pursuant to its rule-making power established rules
that restrict solicitation of bail-bond customers. These rules prohibit the solicitation of
bail-bond business (1) from an individual with an outstanding arrest warrant (the "openwarrant rule"), (2) within twenty-four hours after the execution of an arrest warrant (the
"twenty-four-hour rule"), or (3) between the hours of 9:00 p.m. and 9:00 a.m. Monday
through Saturday, and before noon or after 9:00p.m. on Sunday (the "non-business-hours
rule"). Held: The legislative grant of authority in the Bail Bond Act, Tex. Occ. Code§§
1704.101-.109, is sufficiently broad to permit the Board's promulgation ofthe contested
solicitation rules. The non-business-hours rule withstands constitutional scrutiny, but the
open-warrant and twenty-four-hour rules violate the plaintiffs' First Amendment rights.

-

************************************************************************
************************************************************** **********

-

Mission Canso!. Independent School Dist. v. Garcia, 253 S.W.3d 653 (Tex.28/2008).
Opinion By: O'Neill
Election Of Remedies In Tort Claims Act Bars Common Law Suits Against Schools
& Superintendents, But Not Under The TCHRA.
Three tenninated school-district employees filed suit against the district and its
superintendent, alleging violations of the Texas Commission on Human Rights Act, TEX.
LAB. CODE§§ 21.00 1-21.556 ("TCHRA"), and various common-law claims that do not
fit within the Texas Tort Claims Act's limited waiver of immunity. Held: The Tort
Claims Act's election-of-remedies provision, Tex. Civ. Prac. & Rem. Code §101.106,
applies to the employees' claims. The Act's election scheme govems all suits against a
governmental unit The application of the Tort Claims Act, here, bars all common-law
recovery against the superintendent and the school district. However, in this case, the
Act 's election scheme does not bar the employees' recovery under the TCHRA, because
the Legislature has consented to suits against the government, under the TCHRA, and a
suit that is based on the TCHRA is not one brought under the Tort Claims Act, §
101.106(e).

-

-

-

Summ aries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 11

-

-

Tort Claim Election Scheme Bars Recovery Against An Individual Employee, &
May Be Sought Against The Governmental Unit In Only Three Instances.
Under the Tort Claims Act's election scheme, recovery against an individual employee is
barred, and may be sought, against the governmental unit only in three instances: (1)
when suit is filed against the governmental unit only, (2) when suit is filed against both
the governmental unit and its employee, or (3) when suit is filed against an employee
whose conduct was within the scope of his or her employment, and the suit could have
been brought against the governmental unit. When suit is filed against the employee,
recovery against the governmental unit regarding the same subject matter is barred,
unless the governmental unit consents to suit. Because the decision regarding whom to
sue has irrevocable consequences, a plaintiff must proceed cautiously before filing suit
and carefully consider whether to seek relief from the governmental unit, or from the
employee individually.
Tort Claims Act. Suits Alleging Any Tort Theory Against A Governmental Unit Is
Assumed To Be Under The Tort Claims Act.
Because the Tort Claims Act is the only, albeit limited, avenue for common-law recovery
against the government, all tort theories alleged against a governmental unit, whether it is
sued alone or together with its employees, are assumed to be under the Tort Claims Act
for purposes of Tex. Civ. Prac. & Rem. Code§ 101.106.

************************************************************************
************************************************************************
Nationwide Ins. Co. v. Elchehimi, 249 S.W.3d 430 (Tex. 3/28/2008).
Opinion By: Justice Wainwright; Justice O'Neill filed a dissenting opinion, joined by
Justice Medina.

-

-

Uninsured Motorist Insurance Does Not Cover Injuries That Occur When AxelWheel Assembly From An Unidentified Truck Cause Damages.
This breach of contract suit stems from the denial of coverage by Nationwide Insurance
Company on a claim arising from a collision between insured Elchehimi's vehicle and an
axle-wheel assembly, which separated from an unidentified semi-trailer truck. The court
of appeals reversed the trial court's grant of summary judgment in favor of Nationwide.
Held: Reversed and rendered that Elchehimi take nothing. A drive axle with two tandem
wheels attached on one side lacks an engine or other means of propulsion. It is therefore
neither a self-propelled vehicle nor a vehicle propelled by electric power from overhead
wires. This wheel assemblage is not capable of carrying a load, nor can it be towed down
a road by a self-propelled vehicle other than being dragged by or mounted underneath
one, as Elchehimi's expert witness testified. The axle-wheel assembly is thus not a trailer
or semitrailer designed for use with a self-propelled vehicle. The axle-wheel assembly is
not a motor vehicle under Tex. Transp. Code Chapter 60 1. Applying the common usage
of the term and the definition in Chapter 601 , physical contact with a detached axle and
tandem wheels is not actual physical contact with a motor vehicle under the unidentified
motor vehicle provision.

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 12

-

-

-

-

-

************************************************************************
******************************************* *****************************
Chu v. Hong, 249 S.W.3d 441 (Tex. 3/28/2008).
Opinion By: Justice Brister
Martial Estate. There Is No Independent Tort Action For Wrongful Disposition Of
A Spouse's Community Assets.
A spouse who gives away community property to friends or relatives when divorce is
imminent has defrauded the community estate. In such cases, a trial court can order the
spouse to return the property or take the fraud into account in making a just-and-right
division. But in this case the trial court did neither. After finding that a husband sold
community property to third parties without his wife's consent, the trial court ordered the
buyers to return the property to the wife, but allowed the husband to keep the money they
paid for it, and added a judgment against the buyers and their lawyer for more than $1.75
million. Thus, because one spouse defrauded the other, both are better off and the
community estate vastly increased. Held: The courts below erred in allowing one spouse
to recover damages, without first recovering the community property from the spouse
who took it. There is no independent tort cause of action for wrongful disposition by a
spouse of community assets. That is due to "the essential character of the wrong: a
deprivation of community assets as opposed to a tort committed against a person, or his
or her separate prope1ty. Personal injury claims are the separate property of each spouse,
and thus can be asserted between spouses as independent t01ts. But waste, fraudulent
transfer, or other damage to community property are claims belonging to the community
itself, so they must be included in the trial court's just-and-right division of community
property upon divorce. Allowing independent torts between spouses for community
damage would thus require fault to be determined twice -once in the tort action, and
again in the property division. To avoid that, the just-and-right division is the sole method
for adjudicating such claims, and no independent cause of action exists in Texas when the
wrongful act defrauded the community estate.
Fraud On The Community. Third Party Liability & Co-Conspirator Liability
Limited.
Torts against the community estate can be alleged against a third-party. Thus, if a third
party steals community property, either spouse or both can seek recovery in tort for it.
But, a third party cannot be held liable in tort, when community property is taken by one
of the spouses. If one spouse retains the fruits from defrauding the community estate, the
estate, as a whole, has not been damaged; there is no reason someone else should pay for
it. One spouse should not be able to double the community estate by defrauding the
other. Further, if a spouse cannot be liable for tort and punitive damages in a case like
this, it is unclear under what theory co-conspirators can. The husband's fraud against the
community estate was still an unlawful act, even though it could only be addressed in the
just-and-right property division. But co-conspirators are each responsible for the damage
the conspiracy caused; if the husband's liability is limited to returning the property or
adjusting the community division, the liability of co-conspirators should be as well.

Summaries of the opinions of the Texas Supreme Co urt 3/28/08-3/27/09 - By L. Way ne Scott Page 13

-

-

-

-

Attorney Drafting Conveyance Of Community Business Not Liable To Spouse Who
Did Not Know Of Sale.
An attorney, Chu, drafted a bill of sale for a business owned by Hong and her husband,
by which the husband sold the business to Chu's clients. All that Chu received was his
fee for drafting the bill of sale. The trial court imposed judgment against the Attorney,
Chu, based upon a finding that he converted Hong's property. The court of appeals
affirmed. Held: Reversed and rendered as to Chu. As an attorney, Chu had a fiduciary
duty to further the best interests of his clients, the buyers; imposing a second duty to the
sellers would inevitably conflict with the first. An attorney, who personally steals goods
or tells lies on a client's behalf, may be liable for conversion or fraud, in some cases. But
there are no such allegations here; the only claim is that Chu should have refused to draw
up the bill of sale (although his client asked him to) because he knew one spouse was
selling the shop, without the other spouse's consent- even though neither spouse was
his client. It is not necessary to approve of Chu's ethics to hold that Hong must seek
restitution from her own husband, before seeking it from someone else's lawyer.
Because Hong has no tort claim against her former husband, under Texas communityproperty law, she has no conspiracy claim against Chu, for conspiring in such a tort.

******* *****************************************************************
************************************************************************
Lowenberg v. City ofDallas, 261 S.W .3d 54 (Tex. 3/28/2008).
Opinion By: Per Curiam

-

-

-

Fire Protection Fee Was A Tax. Voluntary Payment Did Not Waive Recovery,
Because Failure To Pay Was A Criminal Offense.
During the first nine months of 1995, the City of Dallas charged a fee on commercial
buildings, to generate funds for fire protection services. Failure to pay the fee carried a
criminal fine of up to $2,000. Threatened with that penalty, Lowenberg paid his fee of
$80 and then sued for a refund for himself, as well as all others who paid the fee, alleging
that the fee was an unlawful occupation tax. The trial court certified a class, and granted
the class's motion for summary judgment. The court of appeals reversed, holding that as
a matter of law, the fee was an unlawful tax, but that recovery was barred by the
voluntary payment rule, because the tax was not paid under duress. 187 S.W.3d 777 (Tex.
App.- Eastland 2006). Held: Reversed, and the judgment of the trial court is affirmed.
The fee was a tax, but was not paid voluntarily, since the failure to pay the fee was also a
Class C misdemeanor. While the availability of injunctive or declaratory relief might
prevent the assessment of an unlawful tax from being a denial of due process, the failure
to pursue such relief before paying an unlawful tax does not render the payment
voluntary so as to defeat a claim for refund; otherwise, since such relief is almost always
available, the voluntary payment rule would be essentially an absolute bar to refund.

************************************************************************
************ **************************************** ********************
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 14

SIGNIFICANT OPINION
In re Jorden, 249 S.W.3d 416 (Tex. 3/28/2008).
Opinion By: Justice Brister; Justice O'Neill filed a concurring opinion.
Presuit Discovery Under Rule 202 Is, Generally, Not Allowed In Health Care
Lawsuit, Until Expert Report Is Filed.
Tex. Civ. Prac. & Rem. Code§ 74.351(s), limits discovery in health-care lawsuits until
the plaintiff serves an expert report, summarizing how each defendant violated standards
of care and caused the plaintiff injury. This requirement for an expert report applies to
presuit depositions authorized by Rule 202 of the Texas Rules of Civil Procedure.
Because the§ 74.35l(s) prohibits "all discovery" other than three exceptions- and Rule
202 depositions are not listed among them - the statute prohibits such depositions until
after an expert report is served.
Mandamus. Conflicts In Decisions On An Issue A Factor To Consider In Granting
Mandamus Relief.
Conflicts in the decisions of lower court, on an issue raised by a writ of mandamus are a
factor which must be considered by the Supreme Court in deciding whether mandamus is
appropriate. The issue here is obviously recurring, and Texas courts are giving
diametrically opposed answers. Hence, the Court will consider the application for writ of
mandamus.

-

Presuit Depositions. Requirements.
Tex. R. Civ. P. 202 depositions are not now, and never have been, intended for routine
use. There are practical as well as due process problems, with demanding discovery from
someone before telling them what the issues are. Accordingly, presuit depositions are
available under Rule 202, only if a trial court makes one of two findings: (1) allowing the
petitioner to take the requested deposition may prevent a failure, or delay of justice, in an
anticipated suit; or (2) the likely benefit of allowing the petitioner to take the requested
deposition, to investigate a potential claim outweighs the burden or expense of the
procedure.

****************************************** ***** ****************** *******
**************** **** ****************************************************
Trend Offset Printing Services, Inc. v. Collin County Community College Dis!., 249
S.W.3d (Tex. 3/28/2008).
Opinion By: Per Curiam

-

-

Governmental Immunity Not Waived By "City May Plead Or Be Impleaded"
Language In Local Government Code. Remand For Consideration Of New
Statute.
Trend Offset Printing Services, Inc. contracted in writing with Collin County Community
College District, to print course schedules for the District for a year, with an option to
renew for two more years. When the District refused to pay Trend for the first 201 ,000
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 15

-

schedules it delivered, Trend sued in Dallas County for the amount due, lost profits for
anticipatory breach, interest, costs, and attorney's fees. On the District's motion, venue
was transferred to Collin County, where the trial court sustained the District's plea to the
jurisdiction, based on immunity from suit, and dismissed the case. The court of appeals
affirmed. Held: Reversed and remanded to the trial court. The "sue and be sued" clause
in section 11.1 51(a) of the Education Code, made applicable here by sections 130.084(a)
and 130.175 of the Code, does not waive the District's immunity from suit. However,
while this case was on appeal, the legislature enacted sections 271.15 1-.160 ofthe Texas
Local Govenunent Code, which pa11ially waive immunity from suit against certain local
government agencies in some contract cases. Trend should have the opp011unity to argue
in the trial court that the District's immunity is waived by these provisions.
Venue. A Transfer For The Convenience Of The Parties Is Not Subject To Review.
Tex. Civ. Prac. & Rem. Code § 15.002(c) provides that a "court's ruling or decision to
grant or deny a transfer of venue, under Subsection (b) (allowing a transfer of venue
"[f]or the convenience of the parties and witnesses," and the motion referenced the
"balance of interests" and "not work an injustice") is not grounds for appeal or
mandamus and is not reversible error." Because the motion to transfer, in this case,
sufficiently invoked subsection (b) in requesting a transfer, it was statutorily beyond
review, and the trial court granted the transfer of venue without stating reasons for the
granting. Section 15.002(c) precludes review, not just of the evidence, but of the order
(under section 15.002(b)] itself. As a result, it is irrelevant whether a transfer for
convenience is supported by any record evidence.

-

************************************************************************
************************************************************************

-

City of Dallas v. DeQuire, 249 S.W.3d 428 (Tex. 3/28/2008).
Opinion By: Per Curiam

-

-

Governmental Immunity. Remanded For Reconsideration In Light Of Rehearing
In Reata Construction.
Several Dallas police officers sued the City of Dallas, for breach of contract, citing the
City Charter, and alleging that the City's failure to promote them was in violation of the
City's civil service rules and written Police Department policy. Plaintiffs sought
declaratory relief and damages. The City filed a plea to the jurisdiction, based on
governmental immunity, and requested recovery of all costs of suit and attorney fees. The
trial court granted the City's plea to the jurisdiction. The court of appeals reversed the
trial court' s order, holding that the City 's request for attorney's fees was an affirmative
counterclaim waiving immunity from suit 192 S.W.3d 663, 666 (Tex. App.- Dallas
2006). Held: Reversed and remanded to the trial court. The court of appeals relied on
the first opinion in Reata Constr. Corp. v. City of Dallas, which has since been
withdrawn and replaced. See Reata Constr. Corp. v. City of Dallas, 197 S.W.3d 371
(Tex. 2006). The Supreme Court does not reach whether a request for attorney fees,
under the Declaratory Judgments Act, waives immunity from suit for claims for money
damages not otherwise allowed under that Act On remand, the plaintiffs should have the
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 16

-

-

opportunity to argue any grounds for waiver remaining under this Court's decisions,
including whether the City's immunity from suit is waived by sections 271.151-.160 of
the Local Government Code, enacted while this case has been pending on appeal.

************************************************************************
************************************************************************
New Texas Auto Auction Services, L.P. v. Gomez De Hernandez, 249 S.W.3d 400 (Tex.
3/28/2008).
Opinion By: Justice Brister
•••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••

-

Auctioneer Not Strictly Liable For Sale Of Defective Car.
An auctioneer, who sells a car, is not liable in strict liability or negligence for auctioning
a defective car. Product-liability law requires those who place products in the stream of
commerce to stand behind them; it does not require everyone who facilitates the stream
to do the same. Because the auctioneer, Big H, was not in the business of selling
automobiles for its own account, it cannot be held strictly liable.

-

Auctioneer Not Negligent For Sale Of Defective Car Sold "As Is."
The auctioneer, Big H, made no warranties of its own at the auction of the car in
question, which was alleged to be defective, serving merely as a conduit for warranties
made by sellers. The car here was sold under a red light, indicating the car was being sold
"as is." Generally, those who buy a product "as is", accept the risk of potential defects,
and thus cannot claim a seller's negligence caused their injuries. Imposing a different
duty here would effectively prohibit car dealers from selling cars "as is." And, imposing
such a duty on auctioneers would seem to require imposing it on every person who ever
sold a used car, as there is no sensible or just stopping point.

-

-

-

************************************************************************
************************************************************************
SIGNIFICANT DECISION
20801, Inc. v. Parker, 249 S.W.3d 392 (Tex. 3/28/2008).
Opinion By: Chief Justice Jefferson
Dram Shop Action. Burdens Under The Safe-Harbor Provision.
In this Dram Shop case, the plaintiff, Parker, contends that, over the course of the
evening, the defendant-bar's employees served him between ten and fifteen free alcoholic
beverages, including two given to him by the manager. The Texas Dram Shop Act, Tex.
Alco. Bev. Code §§ 2.02(b), 106.14(a), which imposes liability on alcoholic beverage
providers for damages resulting from the provision of alcohol to obviously drunk persons
("over-service"), also contains a section eliminating this liability under certain
circumstances. Under this "safe harbor" provision, the actions of an employee in overserving a patron "shall not be attributable to the employer" if the employer requires its
employees to attend ce1tain training classes, the employee in question actually attended
these classes, and the provider did not directly or indirectly encourage that employee to
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 17

-

-

violate the law. Held: Under this provisiOn 1) the provider bears the burden of
establishing the first two elements; 2) the plaintiff bears the burden of establishing direct
or indirect encouragement; and 3) encouragement may be shown, at the minimum, by
evidence of the provider's negligence. For the purposes of section 106.14( a), "employer"
includes "vice principals," such as the manager in this case.
Dram Shop Act. "Encouragement" Measured By An Objective Standard.
A provider of alcohol must act (or fail to act), at least, negligently to encourage its
employees within the meaning of Tex. Alco. Bev. Code § 106.14. The relevant
comparison will be to a reasonable provider of the defendant's type (a bar or liquor store
owner, for example), and the circumstances in these cases will include a provider's
awareness of, and reliance on, its employees' successful completion of an approved seller
training program. This objective standard best comports with the Legislature's intent to
provide a broad shelter from liability for a provider who has complied with the first two
elements of section 106.14(a) while also ensuring that this shelter not be abused. Here,
there is no evidence, however, that the plaintiff was already obviously drunk when
defendant's manager served him two free drinks. And serving two free drinks to a person,
who is not obviously intoxicated, is neither a violation of the Act, nor does it encourage
others to violate the Act.

************************************************************************
************************************************************************
In re Bazan, 251 S.W.3d 39 (Tex. 3/28/2008).
Opinion By: Justice Medina; Justice Willett filed a concurring opinion.

-

-

-

Public Officials Cannot Be Forgiven For Felony Conviction. Talamantez Is
Overruled
This is an original mandamus proceeding. Chapter 87 of the Local Government Code
does not forbid a district court from removing a county officer, who has been convicted
of a felony, when the conviction is based on acts that occmTed before the officer's
election. The decision in Talamantez v. Strauss, 774 S.W.2d 661 (Tex. 1989) (per
curiam), concluding that a county officer could not be removed from office for acts
predating the officer's election, is overruled. TEX. CONST. art. XVI, § 2 states that:
"Laws shall be made to exclude from office . . . [persons] who have been or shall
hereafter be convicted of bribery, perjury, forgery, or other high crimes." The term 'other
high crimes' includes any offense of the same degree or grade as those specifically
enumerated, namely felonies. Thus, under Tex. Elec. Code § 141.001(4) (individual
convicted of a felony ineligible to hold public office) and Tex. Local Gov't Code §
87.031 (felony conviction operates as an immediate removal from office) an individual
convicted of a felony is ineligible to hold public office whether the conviction comes
before or after the individual's election to office. Section 87.001 of the Local
Government Code does broadly state that an officer may not be removed from office for
acts committed before the officer's election. This section expresses "the forgiveness
doctrine." The public's power to forgive, however, is not without limits. It does not

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 18

extend, for example, to felony convictions, because a convicted felon is not qualified to
hold public office, with or without the public's consent. Thus, when the acts in question
are themselves disqualifying under the constitution, they cannot be forgiven by the
electorate.

************************************************************************
************************************************************************
Bushnell v. Mott, 254 S. W.3d 451 (Tex. 3/28/2008).
Opinion By: Per Curiam

Dog Owner Required To Stop Non-Vicious Dog From Attacking Mter Attack Has
Begun.
The owner of a dog, not known to be vicious, owes a duty to attempt to stop the dog from
attacking a person, after the attack has begun. An owner of a vicious animal can be
strictly liable for harm, while an owner of a non-vicious animal can be subject to liability
for his negligent handling of such an animal.

************************************************************************
************************************************************************
City of Corsicana v. Stewart, 249 S.W.3d 412 (Tex. 3/28/2008).
Opinion By: Per Curiam

...

-

-

Tort Claim. Flooded Roadway As Premise Defect. Evidence Of Actual Notice Of
Flooding Required.
This is a premise defect case brought under the Tort Claims Act. Plaintiff-Stewart Sr.'s
car stalled, while he was attempting to traverse a low-water crossing on Bunert Road,
which was flooded due to heavy rains. Stewart left his children inside the car and went to
seek help. When he returned, his car had been swept away, and his children drowned.
Plaintiffs sued the City of Corsicana. The trial court granted the City's plea to the
jurisdiction based on governmental immunity. The court of appeals reversed and
remanded. 211 S.W.3d 844, 853. Held: Reversed and dismissed for lack of jurisdiction.
Plaintiffs failed to raise a fact issue regarding the City's actual knowledge of a dangerous
condition. Tex. Civ. Prac. & Rem. Code§§ 101.022(a), .025. provides a limited waiver of
sovereign immunity, when a claim arises from a premise defect. To establish a waiver of
immunity, the plaintiff must show that the governmental entity had actual knowledge of
the dangerous condition at the time of the accident, not merely of the possibility that a
dangerous condition could develop over time. There was no direct evidence offered that
the City knew the crossing was flooded prior to the accident. Actual knowledge requires
knowledge that the dangerous condition existed at the time of the accident, as opposed to
constructive knowledge which can be established by facts or inferences that a dangerous
condition could develop over time. Circumstantial evidence establishes actual knowledge
only when it "either directly or by reasonable inference" supports that conclusion. The
evidence presented in this case [detailed in the opinion] does not reasonably support the
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 19

-

inference that the City actually knew that the crossing was flooded on the night of the
accident. And regardless of whether the City should have been better prepared to
respond, the City is immune from liability for discretionary decisions concerning the
expenditure of limited resources for the safety of its citizens.

****************************** ********* *********************************
************************************************************************
Hamilton v. Wilson, 249 S.W.3d 425 (Tex. 3/28/2008).
Opinion By: Per Curiam

-

-

-

-

-

-

No Evidence Motion For Summary Judgment Defeated By Expert Testimony That
Negligence Probably Caused The Injury.
This is a health care liability action. Prior to surgery, Dr. Wilson attempted to intubate
the patient, Hamilton. After surgery, it was discovered that Hamilton had suffered a tear
in her esophagus. Dr. Wilson moved for a no evidence summary judgment. Hamilton
responded with portions of the depositions of the designated testifying experts (Dr.
Robert Finnegan on behalf of Hamilton, Dr. Byron Brown for Dr. Wilson), her medical
records, and Dr. Wilson's own deposition. Dr. Finnegan testified that the intubation
probably caused the tear in Hamilton's esophagus, and Dr. Wilson and Dr. Brown
admitted this was possible. The trial court granted the motion, and the court of appeals
affirmed. Held: Reversed and remanded. The respondent, seeking to defeat a noevidence motion for summary judgment is not required to marshal its proof; its response
need only point out evidence that raises a fact issue on the challenged elements. A noevidence summary judgment is reviewed for evidence that would enable reasonable and
fair-minded jurors to differ in their conclusions. While conclusory statements, even from
experts, are not sufficient to support or defeat summary judgment, Dr. Finnegan's
testimony was not based on mere possibilities, speculation, or surmise. His opinion, that
the intubation caused the injury, was based on: 1) the location of the tear in relation to
where the 7.5mm tube would have been when it was pushed in by Dr. Wilson; 2) his
review of the medical records, indicating that the tear was "probably related to intubation
at the time of surgery;" and 3) his impression that the "tight fit" encountered by Dr.
Wilson was the cricopharyngeal ring of the esophagus. Further, although Dr. Wilson
proffered her alternative theory for how the tear occurred (during suctioning of
Hamilton's throat during extubation), her own testimony that she pushed the 7.5mm tube
in 1-2cm farther, even after encountering a "tight fit" could support Dr. Finnegan's
conclusion.

************************************************ *********************** *
************************************************************************
Murffv. Pass, 249 S.W.3d 407 (Tex. 3/28/2008).
Opinion By: Per Curiam

Jury Selection. Trial Court Has Wide Discretion On Whether Venireperson Is
Biased.

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 2 0

-

-

-

-

-

In this health care liability case, following a confusing line of questioning about the
burden of proof, a venireperson stated that he would hold the plaintiff to a clear and
convincing standard of proof. Additional venirepersons raised their hands, indicating that
they agreed. Believing that the panel members were confused, and after informing the
venire of the proper standard, the trial court refused to disqualify these venirepersons.
The court of appeals held that the venirepersons were disqualified as a matter of law, and
reversed and remanded the case for a new trial. Held: Reversed and rendered, in
accordance with the jury verdict. The trial court did not abuse its discretion in refusing to
disqualify the challenged jurors. A person is disqualified from serving on a jury if the
person has a bias or prejudice in favor of or against a party or claim, or if the person is
unable or unwilling to follow the trial court's instructions. Such bias, prejudice, or
inability to follow the comt's instructions may not be discernible from a single statement
or response to a general question. Statements of partiality may be the result of
inappropriate leading questions, confusion, misunderstanding, ignorance of the law, or
merely loose words spoken in warm debate, and do not necessarily establish
disqualification. When a venireperson expresses bias or confusion, the trial court has the
discretion to stop the line of questioning in order to clarify that person's response. Trial
judges, because they are in the best position to evaluate the sincerity and attitude of
individual panel members, are given wide latitude in both conducting voir dire
proceedings, and in determining whether a panel member is impermissibly prutial. The
reviewing court must consider the entire examination in reviewing whether a trial court
abused its discretion in deciding that a juror was or was not disqualified.

******************************************* *****************************
************************************************************************
Ansell Healthcare Products, Inc. v. Owens & Minor, Inc., 251 S.W.3d 499 (Tex. 2008).
Opinion By: Per Curiam

Products Liability. Manufacturer Is Not Required To Indemnify Distributor For
Cost Of Defending Against Claims Involving Products Of Other Manufacturers.
As decided in Owens & Minor, Inc. v. Ansell Healthcare Products, Inc. , _ S.W.3d _
(Tex. 3/28/2008), !d. at _ (quoting Burden v. Johnson & Johnson Med. , 447 F.3d 371,
375 (5th Cir. 2006)), when a distributor, sued in a products liability action seeks
indemnification from less than all of the manufacturers implicated in the case, the
manufacturer fulfilled its obligation under Texas Civil Practice and Remedies Code §
82.002 by offering indemnification and defense for only the portion of the distributor' s
defense, concerning the sale or alleged sale of that specific manufacturer' s product.

************************************************************************
***** *******************************************************************

-

-

Texas Mut. Ins. Co. v. Ledbetter, 251 S.W.3d 31 (Tex. 4/4/2008).
Opinion By: Justice Brister; Justice Johnson joined as to Parts I through III and Part V.

Worker's Compensation. Carrier Gets First Money From A Tortfeasor.
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 21

[Part II]. Texas law has required that the first money, recovered by an injured worker
from a tortfeasor, go to the worker's compensation canier, and until the cruTier " is paid in
full the employee or his representatives have no right to any funds." In this case, a $4.5
million settlement was structured, so that the plaintiffs and their attorney got all the
funds, and the compensation canier got nothing. The plaintiffs argue that this result is
harmless, because the carrier can sue the defendants (they do not volunteer themselves) to
get the money back. That might give the canier second or third money, but not first
money. Held: Reversed and remanded. The compensation carrier gets the first money a
worker receives from a tortfeasor. There is nothing discretionary about this statute; a
canier's right to reimbursement is mandatory. Thus, until a canier is reimbursed in full,
the employee or his representatives have no right to any of such funds.
Intervention. No Deadline.
Intervention Is Possible After Judgment When
Subrogee's Interest Is Not Adequately Represented.
[Part III]. There is no deadline for intervention in the Texas Rules of Civil Procedure.
Generally, one cannot intervene after final judgment. But when a subrogee's interest has
been adequately represented, and then suddenly abandoned by someone else, it can
intervene, even after judgment or on appeal, so long as there is neither unnecessary delay
nor prejudice to the existing parties.
Pleadings. Carrier Seeking Reimbursement For Comp Payments Does Not Have to
Plead Precise Amount Sought.
[Part III]. There is no requirement that a carrier plead the precise amount of
reimbursement it seeks. Such a requirement would often be impractical, requiring an
amended petition every week as more benefits are paid. All the carrier's petition had to
do was to give fair notice of that claim, not the specific dollar amount sought.
Nonsuit Cannot Prejudice Claims Of Others.
[Part IV]. Parties have an absolute right to nonsuit their own claims, but not someone
else's claims they are trying to avoid. Tex. R. Civ. P. 162, governing nonsuits, provides
that "[a]ny dismissal pursuant to this rule shall not prejudice the right of an adverse party
to be heard on a pending claim for affirmative relief." A claim for affirmative relief is
one on which the claimant could recover compensation, or relief, even if the plaintiff
abandons his cause of action. A canier's subrogation claim is just such a claim, as it can
be prosecuted by a carrier, even if an injured worker never does. It is true that the carrier
here sought no affirmative relief from the plaintiffs, seeking instead reimbursement from
the funds the defendants were about to pay them. But Rule 162 is not limited to
affirmative claims against the nonsuiter; it prohibits dismissal, if the effect would be to
prejudice any pending claim for affirmative relief.

-

-

Nonsuit Of Minor By Plaintiffls Not Proper After Ad Litem Appointed.
[Part IV]. In this wrongful death action, the plaintiffs' attorney nonsuited the minor's
claims, but that was not his motion to make, after an attorney ad litem had been
appointed. The only reason judges appoint ad litems, and approve minor settlements, is
because a minor's interests may conflict with those of other family members, or their
Summaries of the opinions of the Texas Supreme Court 3128/08-3/27/09 - By L. Wayne Scott Page 22

-

-

attorneys. The record here makes no mention of recovery for the minor; it is possible that
this was disclosed and discussed off the record, but of course the primary reason for
holding settlement hearings is to create such a record. On this record, one simply cannot
tell whether the trial court or the ad litem discharged their duties to make sure this minor
was protected. On remand, the trial court must ensure, not only that the carrier gets first
money, but that the minor's interests are protected in the resulting allocation.
Worker's Compensation. Settlement Without Reimbursement Makes All Liable To
Carrier.
[Part V]. When an injured worker settles a case, without reimbursing a compensation
carrier, everyone involved is liable to the carrier for conversion - the plaintiffs, the
plaintiffs' attorney, and the defendants. As between those parties, those who received the
funds unlawfully (generally, the plaintiffs and their attorney), should disgorge them,
rather than making the tortfeasors pay twice.

-

***** ****** **** ******** ***************************** ************ ***** ***
************************************************************************

-

In re H. V, 252 S.W.3d 319 (Tex. 411112008).
Opinion By: Justice Brister; Chief Justice Jefferson filed an opinion concurring in part
and dissenting in part, in which Justices Wainwright and Green joined, and in which
Justice Hecht joined as to Parts I, III and V.

-

-

-

Interlocutory Appeal From Suppression Order In A Juvenile Case, Allowed If
T here Is A Conflict Requiring Clarification.
[Part II]. This is the first attempt at an interlocutory appeal of a suppression order in a
juvenile case, pursuant to Tex. Fam. Code§ 56.03(i) Held: The Texas Supreme Court has
jurisdiction of an interlocutory appeal from a suppression order in a juvenile case, if the
court of appeals has held differently from a prior decision of another court of appeals on
an issue that should be clarified, to remove uncertainty or unfairness. Here, there was
such a conflict, because, in suppressing the alleged murder weapon for a Miranda
[Miranda v. Arizona, 384 U.S. 436 (1966)] violation, the court of appeals held differently
from other courts of appeals that have followed Baker v. State, 956 S.W.2d 19, 23 (Tex.
Crim. App. 1997), an opinion by the Court of Criminal Appeals. While these other cases
did not involve juveniles, the conflict requires clarification.
Conflict Jurisdiction Of Supreme Court Exists, Where There Is An Inconsistency
That Should Be Clarified.
[Part II]. The conflict jurisdiction of the Supreme Court is no longer limited to rulings
that are "so far upon the same state of facts that the decision of one case is necessarily
conclusive of the decision in the other." For cases filed after 2003 (as this one was), a
conflict is sufficient for jurisdiction, under Tex. Gov't Code§ 22.225(c), (e), "when there
is inconsistency in the respective decisions that should be clarified to remove unnecessary
uncertainty in the law and unfairness to litigants."

Summaries of the opin ions of th e Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 23

-

-

-

-

-

-

Right To Counsel. Request By Juvenile To Have Mother Call An Attorney Was A
Sufficient Request.
[Part III]. After being taken to a juvenile processing facility, when asked whether he
wanted to waive his rights and speak to police, H.V. said he wanted to speak to his
mother, but was told he could not. H.V. then responded that he "wanted his mother to ask
for an attorney." When the magistrate responded that only he (not his mother) could ask
for an attorney, H.V. replied, "But, I'm only sixteen." Finding that H.V. had invoked his
right to counsel during custodial interrogation, the trial court suppressed both H.V.'s
second written statement and the gun, and the court of appeals affirmed. 179 S.W.3d
746. Held: Affirmed, to the extent they exclude H.V.'s second statement to police. It is
hard to construe H.V. 's statement that he "wanted his mother to ask for an attorney" as
anything other than "an expression of a desire for the assistance of an attorney." This is
not a case in which H.V. simply wanted to see his mother; the only reason he said he
wanted her was for the purpose of getting him an attorney. If he wanted private counsel,
his request would have been technically correct, as his age at least hindered, if it did not
prevent him from doing so himself.

Suppression Of Evidence, In Juvenile Case, Not Required Because Of Violation Of
Miranda Rights.
[Part IV]. Finding that H.V. had invoked his right to counsel during custodial
interrogation, the trial court suppressed both H.V.' s second written statement and the gun,
and the court of appeals affirmed. Held: The judgments are reversed to the extent they
exclude the gun found, as a result, and the case is remanded to the trial court for further
proceedings. Evidence obtained through deliberate violations of constitutional rights is
usually inadmissible on that basis alone. In this case, H.V.'s counsel does not argue that
his disclosure of the gun' s location was involuntary or coerced for any reason other than
violation of his Miranda request for counsel. The warnings and invocation of counsel
here all occurred in court before a magistrate without police involvement, so there could
have been no police coercion. Because violations of Miranda do not justify exclusion of
physical evidence resulting therefrom, we hold the courts below erred in excluding the
gun that brought about Daniel Oltmanns's death.

************************************************************************
****************************************************** ***** ******* ******
SIGNIFICANT DECISION
Lewis v. Funderbruck, 253 S.W.3d 204 (Tex. 4/ 11 /2008).
Opinion By: Justice Brister; Justice O'Neill filed a concurring opinion; Justice Willett
filed a concurring opinion.
Interlocutory Appeal Allowed From Refusal To Dismiss A Heath Care Liability
Claim, On The Ground That The Expert Report Was Inadequate.
In an effort to stem frivolous suits against health care providers, the Legislature has made
a number of changes in the rules of civil litigation. Among them has been a requirement
since 1995 for early expert reports, set forth in Tex. Civ. Prac. & Rem. Code§ 74.351(a),

Summaries of the opinions of the Texas Supreme Co urt 3128/08-3/27/09 - By L. Wayne Scott Page 24

-

-

and a provision since 2003 for interlocutory review of those reports, set forth in Tex.
Gov't Code § 51.014(a). Since adoption of the latter provision, 12 of the 14 courts of
appeals in Texas have routinely conducted interlocutory review of allegedly inadequate
reports. But two courts have not - the Second and (in this case) the Tenth courts of
appeals have held they have no jurisdiction of such appeals. Here, the defendant-doctor
moved for dismissal and attorney's fees on the ground that the expert report was
inadequate, but the trial court denied the motion. Held: Interlocutory review is proper.
Dr. Moore's motion seeking dismissal and fees was a motion pursuant to section
74.351(b) and thus reviewable by interlocutory appeal when the trial court denied it.
Section 74.351 of the Civil Practices and Remedies Code provides that within 120 days
of filing a claimant must serve a curriculum vitae and one or more expert reports
regarding every defendant against whom a health care claim is asserted. Section 74.351
has numerous subparts, including: subpart (b) requiring trial courts to dismiss a claim
with prejudice and award fees if "an expert report has not been served" by the statutory
deadline; subpart (c) allowing a 30-day extension of the deadline if a report is found
inadequate; and subpart (l) providing that a motion challenging a report's adequacy
should be granted only if the report does not represent a good-faith effort to comply with
the statute. Of these and other rulings a trial court might make under section 74.351, the
Legislature provided for interlocutory review of just two. First, an immediate appeal can
be taken if a trial court denies relief sought under subpart (b). Second, an immediate
appeal is allowed when a trial court grants relief under subpart (l). A denial under (b) is
immediately appealable but a denial under (l) is not. While subpart (b) refers to cases in
which an expert report "has not been served," it is not limited to cases in which there is
no report at all. In section 74.351(c), the Legislature made clear that when it used the
words "an expert report has not been served," it meant to include cases in which an
inadequate report has been served:

Jurisdiction To Determine Whether Court Of Appeals Properly Declined
Jurisdiction.
The Supreme Court has jurisdiction to determine whether a court of appeals has properly
declined jurisdiction.

-

Health Care Claim. Expert Report Deficiency May Be Cured By Report From A
Different Expert.
The 30-day extension in section 74.351(c), allowing a claimant to "cure the deficiency"
permits both amendments by the original expert and substitutions by a new one, by
providing that "a claimant may satisfy any requirement of this section . . . by serving
reports of separate experts." Because the statute allows a claimant to cure a deficiency,
and that requirement like all others may be satisfied by serving a report from a separate
expert, the statute does not prohibit a plaintiff from changing experts midstream.

-

************************************************************************
******************************************************** *** ****** ****** *

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 25

The following per curiam opinions, issued on 4111/2008, were decided and
controlled by Lewis v. Funderburk. Each of these cases is reversed and remanded:

07-0094
Philip A. Moore, M.D. v. Kristy Gatica, 253 S.W.3d 219 (Tex. 2008).
07-0173
Roberto Diaz-Rohena, M.D. v. Cynthia S. Melton, 253 S.W.3d 218 (Tex.
2008).
07-0174
Center for Neurological Disorders, P.A. v. Roger P. George, 253 S.W.3d 217
(Tex. 2008).
07-0227
Wendy Collini, M .D. v. Martha Pustejovsky, 253 S.W.3d 216 (Tex. 2008).
07-0228
Graham Oaks Care Center Inc. v. Allagra Farabee, 251 S.W.3d 63 (Tex.
2008).
07-0312
Lou Virginia Danos v. Kevin Rittger, M .D., 253 S.W.3d 215 (Tex. 2008).
07-0368
Hill Regional Hospital v. Maxine Runnels, 253 S.W.3d 213 (Tex. 2008).
07-0422
Metwest Inc. v. Miguel Rodriguez Jr., 253 S.W.3d 212 (Tex. 2008).

************************************************************************
************************************************************************

-

-

SIGNIFICANT DECISON
Medical City Dallas, Ltd. v. Carlisle Corp., 251 S.W.3d 55 (Tex. 411112008).
Opinion By: Chief Justice Jefferson; Justice Hecht did not participate in the decision.
Attorney's Fees Are Recoverable In An Action For Breach Of An Express
Warranty.
Tex. Civ. Prac. & Rem. Code § 38.001(8), permits recovery of attorney's fees for a claim
based on an oral or written contract. Held: An action for breach of express warranty is
such a claim.

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 26

-

********************************************************************** **
************************************************************************

-

BIC Pen Corp. v. Carter, 251 S.W.3d 500 (Tex. 4/18/2008).
Opinion By: Justice Medina; Justice Green did not participate in the decision.

-

Product Design Defect Claim Preempted By Federal Regulation, Where State Claim
Would Impose A Higher Standard.
Six-year-old Brittany Carter was severely burned when her five-year-old brother, Jonas,
accidentally set fire to her dress with a J-26 model BIC lighter. Janace, acting as
Brittany's next friend, sued BIC Pen Corporation, claiming Brittany's injuries resulted
from manufacturing and design defects in the J-26 lighter. The jury found for Carter. The
court of appeals affirmed the trial court's judgment, as to the design defect claim, but did
not address the manufacturing defect claim. 171 S.W.3d 657, 662. Held: Reversed and
remanded to the court of appeals for it to consider the remaining issues. Federal law
preempts the design defect claim. The Consumer Product Safety Act ("CPSA") §
205 1(b)( 1), (b)(2), (b)(4) provides for the certification of compliance of child-proof
lighters with federal standards. The CPSA contains both a saving clause, which
specifically retains common law actions, and a preemption clause. The saving clause
here allows state-law tort claims, but does not permit claims that actually conflict with
the federal regulations. Carter's design defect claim is impliedly preempted. Carter's
judgment below cannot be affirmed on the theory of design defect, because the J-26 was
properly certified according to the federal protocol, and because imposing a higher
standard under common law would conflict with the federal regulatory scheme in this
area. The CPSA provisions at issue here require products to go through safety testing
before being released on the market. A careful analysis of the provisions reveal that the
testing is not merely a safety floor, but a balancing of factors that ensure the product
meets carefully prescribed safety standards. Where, as here, the Commission rejected the
idea of more stringent standards, a common-law tort claim could impose duties that
conflict with the federal regulatory scheme and, therefore, would stand as an obstacle to
the accomplishment and execution of the full purpose and objections of Congress.

-

*****

Preemption Of State Law May Result From Conflict, Which May Occur In T hree
Ways.
Art. VI, cl. 2, ofthe United States Constitution provides that the laws of the United States
are "the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State
to the Contrary notwithstanding.". Thus, when a state law conflicts with federal law, it is
preempted and has no effect. State laws may conflict with federal laws and be preempted
in three ways. First, a federal law may expressly preempt state law. Second, "federal law
or regulations may impliedly preempt state law or regulations if the statute's scope
indicates that Congress intended federal law or regulations to occupy the field
exclusively. Finally, state law is impliedly preempted if it actually conflicts with federal
law or regulations, because (1) it is impossible for a private party to comply with both
state and federal requirements; or (2) state law obstructs accomplishing and executing
Congress' full purposes and objectives.

Summaries of the opinions of the Texas Supreme Co urt 3/28/08-3/27/09 - By L. Wayne Scott Page 27

Product Defective Manufacturing Claim Is Not Preempted. It Is Separate From A
Design Defect.
Carter's manufacturing defect claim is not preempted, because it was a restatement of the
design defect claim. A manufacturing defect exists when a product deviates, in its
construction or quality, from the specifications or planned output in a manner that renders
it unreasonably dangerous. Thus, whether a manufacturing defect exists is a question
separate from whether the design itself was faulty.

-

-

Statutes. Effective Date When Passed By A Record Two-Thirds, Is Amended, And
Adopted Without A Recorded Vote. Interest Rates.
BIC argues that the judgment awards excessive interest, because the interest rates
provided in House Bill 2415 should apply to this judgment signed on 8/8/2003. The Bill
was signed by the Governor on 6/20/2003. The court of appeals disagreed, holding that
the new, lower interest rate provided in this legislation did not take effect until 9/1/2003,
three weeks after rendition of the judgment in this case. 171 S.W.3d at 678. Held: The
court of appeals was correct that the new, lower interest rate, did not take effect
immediately. The Texas Constitution art. III,§ 39; and art. IV,§ 15 provide that once a
bill becomes law, by being passed by the Legislature and signed by the Governor, it
generally does not take effect until ninety days after the adjournment of the session in
which it was enacted. However, a bill may take effect immediately, upon signing by the
Governor, when passed by a recorded, two-thirds majority vote. Subsequent amendments
and resolutions must accordingly meet the constitutional requirement of a recorded, twothirds majority vote to go into effect before ninety days after adjournment. Here, the
Legislature passed House Bill 2415 by a two-thirds majority vote of each house on
611 /2003. The vote was taken by a recorded vote. The next day, the Legislature adopted
Senate Resolution 66, which amended House Bill 2415, by changing its cap on the postjudgment interest rate from the yield on United States Treasury Bills to the prime rate as
published by the Federal Reserve Bank of New York. While the resolution was adopted
without objection, the vote was not recorded, and, thus, under the Constitution did not
qualify for expedited effect, but rather took effect on 9/1/2003.

************************************************************************
************************************************************************
SIGNIFICANT DECISION.
Villafani v. Trejo, 251 S.W.3d 466 (Tex. 2008).
Opinion By: Justice Wainwright

-

Nonsuit Of Plaintiffs Medical Malpractice Actions Does Not Preclude An Appeal
From The Denial Of Sanctions.
After the plaintiff, in this medical malpractice action, nonsuited her claims, the defendant
appealed the trial court's denial of his motion for sanctions pursuant to the Medical
Liability Insurance Improvement Act (MLIIA), Texas Revised Civil Statutes cuticle
4590i (subsequently amended and codified as Tex. Civ. Prac. & Rem. Code §§ 74.001.507). In the motion for sanctions, the defendant claimed that the expeti report did not
satisfy statutory requirements for a timely expert report, as required by section 13.01(d)

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 28

-

-

of the MLIIA. The court of appeals dismissed the appeal for lack of jurisdiction. Held:
Reversed and remanded to the court of appeals. The court of appeals' dete1mination of
its jurisdiction is reviewed de novo . The statute requires a plaintiff to provide this expert
report within 180 days of filing a claim or, if not provided, to voluntarily nonsuit the
claim against the defendant. Here, the trial court' s denial of defendant's motion for
sanctions and dismissal, and Trejo's nonsuit, collectively disposed of all the claims
between the two parties, and became a final judgment for purposes of appeal. ("This is
not to suggest, however, that a motion for sanctions under the MLIIA will always be
reviewable on appeal after a final judgment.")
Note: Allowing defendants to seek sanctions under the MLIIA for attorney's fees
and dismissal with prejudice deters claimants from filing meritless suits.
Therefore, because the purpose of the sanctions under the MLIIA survived the
plaintiffs nonsuit of her claims, defendant's motion was for sanctions that survive
a nonsuit and could be the subject of an appeal.
Nonsuits Effect Upon Pending Orders And Claims.
Under Tex. R. Civ. P. 162 parties have an absolute right to nonsuit their own claims for
relief at any time during the litigation until they have introduced all evidence other than
rebuttal evidence at trial. One effect of a nonsuit is that it can vitiate certain interlocutory
orders, rendering them moot and unappealable. However, the plaintiffs nonsuit does not
control the non-moving party's independent claims for affirmative relief. A party makes
a claim for affirmative relief by alleging grounds on which he could recover benefits,
compensation or relief and does more than resist a plaintiffs right to recover. Thus, a
nonsuit under Rule 162 also has no effect on any motion for sanctions, attorney's fees or
other costs, pending at the time of dismissal. Additionally, a party's right to nonsuit
cannot be used to disturb a court's judgment on the merits of a claim, such as a partial
summary judgment against the nonsuiting party. Rule 162 protects a party's pending
claim for affirmative relief from the general rule that a party is required to get a ruling (or
a refusal to rule) from a trial court to preserve a right to appeal

-

-

-

Sanction's Survival Of Nonsuit Depends Upon Purpose Of Sanction.
Whether a particular sanction is considered a claim for affirmative relief that survives a
nonsuit for later enforcement or appeal depends on the purpose of the sanction. A party
makes a claim for affirmative relief by alleging grounds on which he could recover
benefits, compensation or relief, and does more than resist a plaintiffs right to recover.
If, for example, a trial court imposes a discovery sanction, excluding witnesses, to insure
a party is afforded a fair trial, a nonsuit obviates the reason for the sanction- to protect
the integrity of the proceeding- and thus the sanction does not survive the nonsuit.
Monetary sanctions, on the other hand, may serve compensatory and punitive purposes,
beyond the specific proceeding and, therefore, survive a nonsuit and can be the subj ect of
an appeal. A claim for attorney's fees is not an affirmative claim where it is based solely
on the defense against the other party's claims, but is an affirmative claim where it is
based on an independent ground or as a sanction.

....
Summaries of th e opinions of the Texas Supreme Co urt 3/28/08-3/27/09 - By L. Wayne Scott Page 29

-

************************************************************************
************************************************************************
Barrera v. Rico, 251 S.W.3d 519 (Tex. 4/18/2008).

-

Nonsuit Of Plaintiffs Medical Malpractice Actions Does Not Preclude An Appeal
From The Denial Of Sanctions.
As decided in Villafani v. Trejo,_ S.W.3d _(Tex. 2008), the trial court's denial of two
motions for dismissal with prejudice and sanctions, under former article 4590i of the
Medical Liability Insurance Improvement Act (MLIIA), is appealable following a
plaintiffs nonsuit.

************************************************************************
************************************************************************
Regent Care Center ofSan Antonio II, Ltd. v. Hargrave, 251 S.W.3d 517 (Tex.
4/18/2008).
Nonsuit Of Plaintiffs Medical Malpractice Actions Does Not Preclude An Appeal
From The Denial Of Sanctions. Dismissal With Prejudice Does Not Alter Result.
The trial court's denial of a motion for sanctions, under former article 4590i of the
Medical Liability Insurance Improvement Act (MLIIA), is appealable following a
plaintiffs nonsuit. The decision in Villafani v. Trejo, _ S.W.3d _ (Tex. 2008), governs
this case. The filing of a nonsuit with prejudice in this case, rather than a nonsuit without
prejudice, as in Villafani, is not a material distinction for the purpose of this holding

************************************************************************
************************************************************************
University ofTexas-Pan American v. Aguilar, 251 S.W.3d 511 (Tex. 4/18/2008).
Opinion By: Per Curiam

-

-

-

Premises Liability. Safety Manual Warning Of Indoor Danger Of Cords Across
Walkway Was Not Evidence Of Knowledge Of Danger Of Outdoor Hose Across
Walkway.
This is a premises liability case. A workplace safety manual, warning of the dangers of
obstructing office walkways with exposed electrical cords, is not evidence of the
defendant-University's actual knowledge that a water hose lying across a sidewalk was
an unreasonably dangerous condition. The manual did not identify this specific risk. The
University's safety manual has no apparent relevance to water hoses or outdoor safety.
Rather, the manual discusses indoor safety. Nothing in the manual remotely suggests that
a water hose can present an unreasonable risk of harm.
Premises Liability. Determining Actual Knowledge Of A Condition Presenting An
Unreasonable Risk Of Harm.
Although there is no one test for determining actual knowledge that a condition presents
an unreasonable risk of harm, courts generally consider whether the premises owner has
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 30

received reports of prior injuries or reports of the potential danger presented by the
condition.

-

***************************************************************** *******
************************************************************************
SUPREME COURT
In re K.C.B., 25 1 S.W.3d 514 (Tex. 4/18/2008).
Opinion By: Per Curiam
Appellate Points Requested, But Not In Record, Sufficient For Appeal Of
Termination Of Parental Rights.
As a prerequisite to appellate review, Tex. Fam. Code § 263.405(b), (i) requires a party,
whose parental rights have been terminated, to timely file with the trial court a statement
of points on which the party intends to appeal. Here, the petitioner timely filed such a
statement and designated it for inclusion in the clerk's record, but the statement was
omitted from the record that was filed with the appellate court. The court of appeals
affirmed the trial court's judgment without addressing the merits, then denied a
subsequent request to supplement the record. 240 S.W.3d 454, 455. Held: Reversed and
remanded to the court of appeals for consideration on the merits. The petitioner complied
with the statutory requirements for appeal. The court of appeals erred in denying her
request to supplement the record on rehearing. There was no purposeful omission of the
statement of points. Moreover, Brown's request for leave to supplement the record did
not require the court of appeals to reconsider a merits-based decision, as the court
affirmed the trial court's judgment without reaching the merits. Given the constitutional
dimensions of the fundamental liberty interest of natural parents in the care, custody, and
management of their child, justice is not served when a case like this, ripe for
determination on the merits, is decided on "a procedural technicality" that can easily be
corrected.
Note: It is undisputed that Brown complied with the statute by timely filing her
statement of points with the district court after the final order was signed. In
addition, Brown designated the "Statement of Points of Error to be Relied on by
Appellant on Appeal" for inclusion in the clerk's record. Although Brown's
description could have been more specific, as there were two statements filed in
the trial court, her designation was sufficient to encompass

-

************************************************************************
************************************************************************
SIGNIFICANT DECISION
Perry Homes v. Cull, 258 S.W.3d 580 (Tex.5/2/ 2008).
Justice Brister; Justice Willett joined as to parts 1 V; Justice O'Neill filed a concurring
opinion; Justice Johnson filed an opinion concurring in part and dissenting in pmt, in
which Chief Justice Jefferson and Justice Green joined; Justice Willett filed an opinion
concurring in part and dissenting in part.
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 31

-

Arbitration. Presumption Against Waiver Of Arbitration Can Be Rebutted, But
Not Here
[Parts I-V]. The Plaintiffs vigorously opposed arbitration in their pleadings and in open
court; then they requested hundreds of items of merits-based information and conducted
months of discovery under the rules of court; finally only four days before the trial setting
they changed their minds and decided they would prefer to arbitrate after all. The trial
court ordered arbitration, because the Defendants had not shown any prejudice from
litigation conduct. The court of appeals confirmed the award. 173 S.W.3d 565, 568.
Held: The arbitration award is vacated; the case is remanded to the trial court for trial.
Parties to a dispute may choose to arbitrate rather than litigate. But that choice cannot be
abused; a party cannot substantially invoke the litigation process and then switch to
arbitration on the eve of trial. There is a strong presumption against waiver of arbitration,
but it is not irrebuttable, and was plainly rebutted here. Sending the Plaintiffs back to the
trial court not only deprives them of a substantial award but also wastes the time and
money spent in arbitration. However, they knew of this risk when they requested
arbitration at the last minute because all of the Defendants objected.

Mandamus Denial Does Not Preclude Consideration Of Same Issue On Appeal.
[Part II]. As mandamus is a discretionary writ, its denial, without comment on the merits,
cannot deprive another appellate court from considering the matter in a subsequent
appeal.

-

Order Compelling Arbitration Is Reviewable After The Arbitration Occurs.
[Part II]. An order compelling arbitration can be reviewed after arbitration, both because
parties waive nothing by foregoing interlocutory review and awaiting a final judgment to
appeal. Additionally, section 16 ofthe Federal Arbitration Act, which expressly prohibits
pre-arbitration appeals.
Arbitration Waiver Is For The Courts, Not The Arbitrator.
[Part III]. Waiver of arbitration, by litigation conduct, is an issue to be decided by the
courts, and not by the arbitrator.
Waiver Of Arbitration Decided By Looking To The Totality Of The Circumstances.
[Part IV]. Whether a party has waived the right to arbitrate must be decided on a caseby-case basis. The courts should look to the totality of the circumstances. The factors to
be considered include: when the movant knew of the arbitration clause; how much
discovery has been conducted; who initiated it; whether it related to the merits rather than
arbitrability or standing; how much of it would be useful in arbitration; and whether the
movant sought judgment on the merits. Waiver is not ruled out in this case solely
because the Plaintiffs did not ask the court to make any judicial decisions on the merits of
their case. While this is a factor it is not the only one. Waiver involves substantial
invocation of the judicial process, not just judgment on the merits. The standard to be
applied is the same for both plaintiffs and defendants. Thus, while the movant's status is

Summaries of t he opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 32

a factor to consider, it does not alone justify a finding of waiver or change the basic
nature of the totality-of-the-circumstances test.
Waiver Of Arbitration Requires A Showing Of Prejudice.
[Part V]. Waiver of arbitration requires a showing of prejudice. Here, the conduct of the
Plaintiffs prejudiced the Defendants. "Prejudice" has many meanings, but in the context
of waiver under the Federal Arbitration Act (FAA) it relates to inherent unfairness - that
is, a party's attempt to have it both ways by switching between litigation and arbitration
to its own advantage. Thus, a party should not be allowed purposefully and unjustifiably
to manipulate the exerGise of its arbitral rights simply to gain an unfair tactical advantage
over the opposing party.

-

-

Arbitration Waived By Plaintiffs In this Case.
[Part VI (A)]. The Defendants initially requested arbitration, and the Plaintiffs initially
sought to avoid arbitration in their pleadings and in open court. The Plaintiffs then they
requested hundreds of items of merits-based information and conducted months of
discovery under the rules of court; finally only four days before the trial setting they
changed their minds and decided they would prefer to arbitrate after all. Held: Looking
at the totality of the circumstances (detailed in the opinion), the Plaintiffs waived the
right to arbitrate.

************************************************************************
************************************************************************
!gal v. Brightstar Information Technology Group, Inc. , 250 S.W.3d 78 (Tex. 5/2/2008).
Original Opinion by Justice Wainwright delivered the opinion of the Court as to Parts I,
II, III, IVA, IVB2, and V, in which Justice Green, Justice Johnson, Justice Willett, and
Justice McCoy* joined, and an opinion as to Part IVB 1, in which Justice Green, Justice
Johnson, and Justice Willett joined. Justice Brister filed a dissenting opinion, in which
Chief Justice Jefferson, Justice O'Neill, and Justice Medina joined. Substituted opinion
on rehearing denied by Justice Wainwright:

The substituted opinion changes wording in a sentence on page 2, from" ... a TWC
appeals tribunal conducted hearings on !gal's appeal, including legal argument and
witnesses for both sides" to" ... a TWC appeals tribunal conducted hearings on !gal's
appeal, which included appearances by counsel and witness testimony for both sides."
The opinion also adds this sentence to footnote 4 on page 4: "However, !gal's claim is for
§ 285.234.57."
The previous report of this case included the following headings:
Res Judicata. Wage Claim Dismissed By TWC, Because Of Late Filing. This
Precludes A Common Law Suit.

..•.....................•........................•............•..•.•.....

-

-

...............................................................•...
Payday Law Allows Employee To Sue Or Pursue An Administrative
Remedy.
Res Judicata Does Not Apply When Tribunal Lacks Jurisdiction.
Res Judicata. Three Requirements.
Res Judicata Applies To Certain Administrative Orders.

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 33

-

Res Judicata Applies To TWC Orders On Wage Claims.
Payday Act Provides Alternative Remedies, But A Party May Purse Only
One To Conclusion.
Res Judicata Given To A Judgment Dismissing A Cause Of Action On
Limitation Grounds.

************* ****** *** ** ********************* ** ** ** *** ******* ** ** ***** **
******** ************** *** ***********************************************

-

-

-

-

SIGNIFICANT DECISION
SUPREME COURT
First American Title Ins. Co. v. Combs, 258 S.W.3d 627 (Tex. 5/ 16/2008).
Justice Willett; Justice Hecht filed a dissenting opinion, in which Justice Wainwright,
Justice Brister, and Justice Medina joined.

Taxes. Retaliatory Tax On Foreign Based Title Insurance Companies Valid.
Texas taxes premiums collected on title insurance policies sold in Texas. Texas also
imposes an additional "retaliatory" tax, when necessary to equalize the tax burdens borne
by Texas and foreign-based title insurance companies. This system has operated with
minimal change until a few years ago, when the Comptroller reinterpreted the retaliatory
tax statute in a way that recognized the agent's responsibility for "taxes due on the
agent's portion of the premium." This sharply increased the tax liability of certain nonTexas title insurers. Held: The Comptroller's revised interpretation, 21 Tex. Reg. 838
(1996), adopted 21 Tex. Reg. 3948 (1996) (codified at 34 TEX. ADMIN. CODE §
3.83 1(3)(B)) (current version at 34 TEX. ADMIN. CODE § 3.831(4)(B)), does not
contravenes the plain meaning of the controlling statutes and does not violate the
insurers' equal protection rights under the United States and Texas Constitutions.

************************************************************************
************************************************************************
In re McAllen Medical Center, Inc., --- S.W.3d ----,2008 WL 4051053 (Tex.), 51 Tex.
Sup. Ct. J. 1302 (5/16/2008).
Justice Brister; JUSTICE WAINWRIGHT filed a dissenting opinion, in which CHIEF JUSTICE
JEFFERSON and JusTICE O'NEILL joined.

Mandamus Relief Is Available When The Purpose Of The Heath Care Statute
Would Be Defeated.
This is an original mandamus proceeding. McAllen Medical Center granted credentials
to Dr. Bracamontes to perform thoracic surgery at the hospital. In 1999, competing
mass-t01t cases, involving treatment by Dr. Bracamontes, were filed - one as a class
action, and this case by 400 plaintiffs, representing 224 former patients. As required by
statute, the plaintiffs in this case submitted expert reports regarding all 224 patients, all
signed by Dr. Brown. The hospital moved to dismiss, on the basis (among others) that Dr.
Brown was not qualified to comment on the issues here. The trial court denied this
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 34

-

-

motion. The court of appeals denied mandamus relief. Held: Writ of mandamus will
issue. To be entitled to mandamus relief, a petitioner must show that the trial court
clearly abused its discretion and that the relator has no adequate remedy by appeal. The
balancing analysis, to determine whether mandamus should issue, now merely recognizes
that the adequacy of an appeal depends on the facts involved in each case. As the
plaintiffs' only expert reports, supporting the credentialing claims against the hospital,
were submitted by a doctor who was not qualified for that purpose (for reasons detailed
in the opinion), the trial court committed a clear abuse of discretion by concluding these
reports were adequate. The facts in this case do not involve delay and expense alone.
The Legislature determined that cases like this one were rendering health care
unavailable or unaffordable in areas of Texas, like the one, where this case was filed.
Mandamus relief is available when the purposes of the health care statute would
otherwise be defeated.

-

Negligent Credentialing Claim Is A Health Care Liability Claim That Must Be
Supported By An Expert Report.
A negligent credentialing claim, that a hospital was negligent in hiring, retaining, and
supervising Dr. Bracamontes, was a health care liability claim. These claims had to be
supported, within 180 days of filing, by an expert report, signed by a person with
knowledge, training, or experience, concerning the applicable standard of care.

-

Appellate Judgment. Rendition Required When Medical Report Is Shown To Have
Been Made By One Not Qualified To Be An Expert.
Under the facts and statute at issue here, the option of remanding for an additional 30-day
"grace period to amend their expert reports, is not available. The plaintiffs alleged that
any inadequacies in their reports were the result of accident or mistake, rather than
conscious indifference. However, a report that completely omitted one of the elements
required by statute cannot be an accident or mistake, because a party who files suit on
claims subject to the statute is charged with knowledge of the statute and its
requirements. Here, the plaintiffs ' attorneys are charged with knowledge that they
needed an expert in hospital credentialing, and with the qualifications (or lack thereof) of
Dr. Brown. Her curriculum vitae showed she was a solo family practitioner, and revealed
neither experience in hospital administration nor even staff privileges at any hospital. At
the hearing on the hospital's motion to dismiss, the trial court admitted deposition
testimony by Dr. Brown that she had not had staff privileges at any hospital for several
years. On this record, the trial court would have no discretion to conclude that the
plaintiffs thought Dr. Brown was qualified due to an accident or mistake.

-

-

-

-

NOTE: JUSTICE WAINWRIGHT, dissenting, joined by CHIEF JusTICE JEFFERSON
and J usTICE O'NEILL.
"A whole new world
A new fantastic point of view
No one to tell us no
Or where to go
Or say we 're only dreaming . . .

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 35

-

-

-

-

-

-

It's crystal clear
That now I'm in a whole new world with you.

BRAD KANE, A Whole New World, on ALADDIN (Disney 1992).
A whole new world in mandamus practice, hinted by opinions in the last
few years, is here. The Court's heavy reliance on costs and delay to support its
conclusion that the hospital has no adequate remedy by appeal marks a clear
departure from the historical bounds of our mandamus jurisprudence. Because the
Court's opinion in this case does not follow the standards we established in the
once-seminal case of Walker v. Packer, 827 S.W.2d 833 (Tex. 1992), for
exercising our mandamus jurisdiction, notwithstanding the merits of the case, I
respectfully dissent."

***
************************************************************************
************************************************************************
Canyon Regional Water Authority v. Guadalupe-Blanco River Authority, 258 S.W.3d 613
(Tex. 5116/2008).
Justice Green
Condemnation Of Easement; Authority To Take Where Existing Public Use Will
Not Be Practically Destroyed.
Guadalupe-Blanco River Authority and Canyon Regional Water Authority are both
agencies and political subdivisions of the State of Texas. The River Authority owns Lake
Dunlap, and uses it for generating hydroelectric power, flood control, public recreation,
and providing water to the Water Authority. Under their contractual arrangement, the
River Authority granted an easement to the Water Authority, under which the Water
Authority draws water through an intake and pipeline structure from the lake to its nearby
pumping station. The Water Authority developed plans to expand its Lake Dunlap water
treatment plant's capacity from six-million gallons per day to sixteen-million gallons per
day. The original water intake and pipeline could not accommodate the increased volume,
so the Water Authority proposed to add a second intake upriver from the existing intake
and the lake's dam. The River Authority sued the Water Authority, seeking declaratory
and injunctive relief and arguing that the Water Authority's construction was outside of
the scope of the easement. Regional Authority, alternatively, counterclaimed for
condemnation of the property required for the project. The trial court entered a partial
summary judgment for the Regional Water Authority, and the River Authority brought an
interlocutory appeal. The court of appeals reversed the trial court, holding that the
easement allows for only one intake. 211 S.W.3d 351, 356 (Tex. App.-San Antonio
2006). The court of appeals further held that the Water Authority presented no evidence
showing that the Water Authority's "purpose could not be otherwise accomplished," id.
at 358, and thus granted summary judgment for the River Authority on the condemnation
claim and remanded the case to the trial court to determine attorney's fees, id. at 359.
Held: The court of appeals' interpretation of the easement agreement is affirmed. The
Water Authority's easement on Lake Dunlap did not grant the right to construct a second

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 36

-

-

water intake and pipeline. However, because the Water Authority has the power to
condemn the property, and the condemnation would not practically destroy or materially
interfere with any existing public use of Lake Dunlap, the condemnation portion of the
court of appeals' judgment is reversed and remanded to the trial court for further
condemnation proceedings and to determine damages, if any, sustained by the River
Authority.

Condemnation May Be Prevented When The Property Is Devoted To Another Use.
Condemnees may prevent a condemnation when the property is already devoted to
another public use and the condemnee establishes that the new condemnation "would
practically destroy the use to which it has been devoted." But, one must look to the entire
use of the affected property, and not a portion of its use, when considering practical
destruction or material interference.

************************************************************************
************************************************************************

-

-

-

-

SUPREME COURT
In re Citigroup Global Markets, Inc., 258 S.W.3d 623 (Tex. 5/16/2008).
Per Curiam

Arbitration Not Waived By Repeated Attempts To Remove Case To Federal Court.
Relator, Citgroup, which repeatedly sought to remove this case to federal court, over a
seven month period did not waive the right to arbitration, and is entitled to mandamus
relief from the trial court's refusal to order arbitration. Waiver is a legal question.
Citgroup always insisted on its right to arbitration. Citigroup never sent or responded to
any written discovery, conducted no depositions, filed no motions (or even an answer)
relating to the merits, before seeking arbitration, and engaged in no litigation conduct
whatsoever other than transferring the case to the federal and MDL comis. In these
circumstances, Citigroup's statements, about what discovery might be saved in the MDL
court, are not enough to show substantial invocation of the judicial process. The
Plaintiffs failed to show Citigroup waived its contractual right to arbitration.

************************************************************************
************************************************************************
Higgins v. Randall County Sheriff's Office, 257 S.W.3d 684 (Tex. 5/16/2008).
Justice O'Neill; Justice Green filed a dissenting opinion, in which Justice Wainwright
and Justice Willett joined. Justice Johnson did not participate in the decision.

Affidavit Of Indigence On Appeal, Which Failed To Comply With R 20.1(b), Was
Adequate To Allow Appeal, Where There Was No Contest.
Higgins, a prose inmate, timely appealed the trial court' s dismissal of his civil suit for
want of prosecution, but failed, either to pay the filing fee, or to file an affidavit of
indigence. When the court of appeals requested payment of the filing fee within ten days,

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 37

-

-

-

-

Higgins filed an affidavit of indigence, in which he did clearly attest that he had no
current or expected income of any kind, and that he had no prospects for receiving any
money in the future. Because Higgins failed to file the affidavit with his appeal as Tex. R.
App P. 20.l(c)(l) provides, and because the affidavit failed to fully comply with Rule
20.1(b), the court dismissed Higgins's appeal. Held: Reversed and remanded to the
court of appeals. The appeal of a party asserting indigence may proceed when the
affidavit lacks complete information on all of the items enumerated in Tex. R. App. P.
20.1 (b), but no contest to the affidavit is filed. This decision reflects the policy embodied
in the appellate rules that disfavors disposing of appeals based upon harmless procedural
defects.

************************************************************************
************************************************************************
City ofDallas v. Reed, 258 S.W.3d 620 (Tex. 5/16/2008).
Per Curiam

Tort Claims Act. Two-Inch Difference In Elevation Of Street Is Not A Special
Defect.
In this premises liability case, a two-inch difference in elevation between traffic lanes on
a roadway does not constitute a special defect, as a matter of law, under the Texas Tort
Claims Act.

************************************************************************
************************************************************************
Chau v. Riddle, 254 S.W.3d 453 (Tex. 5116/2008).
5/16/2008
Per Curiam (On Motion for Rehearing. Motion denied, but opinion is substituted) .
Physicians. Anesthesiologist, Associated With Treating Doctor, Is Not Protected By
Good Samaritan Statute.
Dr. Riddle was the on-call anesthesiologist for the labor and delivery suites at Memorial
Hermann at the time of the injury, made the subject of this action. The Good Samaritan
statute, Tex. Civ. Prac. & Rem. Code§ 74.001(b) -{c). now codified as section 74.151))
excludes from its protections a doctor performing his or her work in an emergency room,
a doctor associated by the admitting or attending physician, and a doctor who charges for
his or her services. Held: Reversed and remanded to the court of appeals. Riddle did
not conclusively establish that he is entitled to the Good Samaritan defense. Since there
is, at least, an issue of material fact, as to whether Riddle was associated by the admitting
or attending physician, it is not necessary to consider whether Riddle regularly
administers care in an emergency room, or charges for his services.

************************************************************************
************************************************************************
Providence Health Center v. Dowell, 262 S.W.3d 324 (Tex. 5/23/2008).

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 38

Opinion By: Justice Hecht; Justice Wainwright filed an opinion concurring in part and
dissenting in part; Justice O'Neill filed a dissenting opinion, in which Chief Justice
Jefferson and Justice Medina joined.

-

-

Causation. No Legally Sufficient Evidence To Show That Hospital's Negligence In
Treating Attempted Suicide Victim Caused Later Suicide.
Twenty-one-year-old Lance Dowell was taken to the emergency room and treated for a
superficial, self-inflicted cut on his left wrist. Distraught over losing his girlfriend, he had
been threatening to kill himself earlier, but he had calmed down, and did not want to be
hospitalized. He was released on his promises that he would not commit suicide, would
stay with his parents, and would go to the local Mental Health and Mental Retardation
center for a follow-up assessment. His mother, a registered nurse, was with him, and did
not object to his release. He went to a family reunion and to a rodeo with his brother,
repeatedly assuring his mother that he was okay. His mother and brother believed him,
and no one else reported anything unusual in his behavior. But thirty-three hours after his
release, he hanged himself. Lance's parents sued, contending that his tragic death was
proximately caused by the negligence of the emergency room physician and nurse in
releasing him. The trial court entered judgment for the plaintiffs. The court of appeals
affirmed. Held: Reversed and rendered. There was no legally sufficient evidence that
the conduct of the defendants caused Lance Dowell 's suicide. Any connection between
his release and death is too attenuated for proximate cause. Although the Dowells' expert
testified that many patients will consent to treatment when sternly confronted with the
dangers of refusal, there is evidence that Lance himself would not have consented to
treatment, and no evidence that Providence could have kept Lance from being
discharged. Furthermore, the Dowells' expert never actually testified that hospitalization,
more likely than not, would have prevented Lance's suicide. Also, Lance's discharge
from the ER was simply too remote from his death, in terms oftime and circumstances.

-

************************************************************************
************************************************************************

-

-

-

In re Team Rocket, L.P., 256 S.W.3d 257 (Tex. 5/23/2008).
Opinion By: Justice Green; Justice Wainwright filed a concurring opinion, in which
Chief Justice Jefferson and Justice O'Neill joined.

Venue. Once Venue Is Determined, A Plaintiff May Not Take A Nonsuit And Refile
In Another County.
This is an original mandamus proceeding. A plaintiff, who was denied his initial venue
of choice, cannot nonsuit his case in the transferee county and refile in a third county.
Reading Tex. Civ. Prac. & Rem. Code Section 15.064 and Tex. R. Civ. P. 87 together,
once a venue determination has been made, that determination is conclusive as to those
parties and claims. Because venue is then fixed in any suit involving the same parties and
claims, it cannot be overcome by a nonsuit and subsequent refiling in another county.
Preclusion. Once A Decision Is Made On Venue That Decision Is Final As To That
Issue.
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 39

-

-

-

Once a trial court has ruled on proper venue, that decision cannot be the subject of
interlocutory appeal. Although a trial court's ruling transferring venue is interlocutory for
the parties, and thus not subject to immediate appeal, the order is final for the transferring
court, as long as it is not altered within the court's thirty-day plenary jurisdiction. Once a
ruling is made on the merits, as in a summary judgment, that decision becomes final as to
that issue and cannot be vitiated by nonsuiting and refiling the case. This concept is
rooted in the long-standing and fundamental judicial doctrines of res judicata and
collateral estoppel. Just as a decision on the merits cannot be circumvented by nonsuiting
and refiling the case, a final determination fixing venue in a particular county must
likewise be protected from relitigation.
Venue. Remedy When A Party Loses A Venue Hearing.
The only remedy afforded by the Legislature when a party loses a venue hearing is to
proceed with trial in the transferee county and appeal any judgment from that court on the
basis of alleged error in the venue ruling.

-

-

.....

-

-

-

Mandamus Available When Party Nonsuits After Venue Determination, And Reflies
In Another County. Burden Upon Court System.
When, as in this case, a trial court improperly applied the venue statute and issued a
ruling that permits a plaintiff to abuse the legal system by refiling his case in county after
county, which would inevitably result in considerable expense to taxpayers and
defendants, requiring defendants to proceed to trial in the wrong county is not an
adequate remedy. An appellate remedy is not inadequate merely because it may involve
more expense or delay than obtaining an extraordinary writ, but extraordinary relief can
be warranted when a trial court subjects taxpayers, defendants, and all of the state's
district courts to meaningless proceedings and trials.

************************************************************************
************************************************************************
SIGNIFICANT DECISION
In re Texas Dept. of Family and Protective Services, 255 S.W.3d 613 (Tex. 5/29/2008) .
Opinion By: Per Curiam; Justice O'Neill, joined by Justice Johnson and Justice Willett,
concurring in part and dissenting in part.
Child Custody. SAPCR Requires Proof Of Danger To Child.
This is an original mandamus proceeding. The district court ordered the removal of 468
children from their parents, who lived at the Yearning for Zion Ranch, a 1,700-acre
complex near Eldorado, Texas, that is home to a large community associated with the
Fundamentalist Church of Jesus Christ of Latter Day Saints. The children were ordered
placed in foster homes. The court of appeals concluded that the Department had failed to
meet its burden of proof under section 262.201 (b)( 1)( "that there was a danger to the
physical health or safety of the child which was caused by an act or failure to act of the
person entitled to possession and for the child to remain in the home is contrary to the
welfare of the child"). The court of appeals directed the district court to vacate its
temporary orders granting the Department custody. In re Steed, _ S.WJd _ (Tex.
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 40

-

-

App.-Austin 2008, orig. proceeding) (mem. op.). The Department petitioned the
Supreme Court for review by mandamus. Held: The writ of mandamus is denied.
"Having carefully examined the testimony at the adversary hearing and the other
evidence before us, we are not inclined to disturb the court of appeals' decision. On the
record before us, removal of the children was not warranted." Contrary to the argument
of the Department, it can still protect the children, short of separating them from their
parents, and placing them in foster care. The court may make and modify temporary
orders for the safety and welfare of the child, including an order restraining a party from
removing the child beyond a geographical area identified by the court. The court may
also order the removal of an alleged perpetrator from the child's home, and may issue
orders to assist the Department in its investigation. The Code prohibits interference with
an investigation, and a person who relocates a residence or conceals a child, with the
intent to interfere with an investigation, commits an offense.

******************************************************************** ****
************************************************************************

-

-

In re Texas Dept. ofFamily and Protective Services, 255 S.W.3d 618 (Tex. 5/29/2008).
Opinion By: Per Curiam; Justice O'Neill, joined by Justice Johnson and Justice Willett,
concurring in part and dissenting in part.
Child Custody. SAPCR Requires Proof Of Danger To Child.
In this companion case to No. 08-0391 , In re Department of Family and Protective
Services, _ S.W.3d _(Tex. 2008) (per curiam), the Department's petition is denied.
The Texas Deprutment of Family and Protection Services petitions for review by
mandamus of the court of appeals' decision in In re Bradshaw, _ S.W.3d _ (Tex.
App.-Austin 2008, orig. proceeding) (mem. op.). That case arose out of the same child
protection proceedings as In re Steed, _ S.W.3d _ (Tex. App.- Austin 2008, orig.
proceeding) (mem. op.), and involved three mothers seeking return of their thirteen
children. The court of appeals reached the same decision in both cases. For the reasons
explained today in No. 08-0391, In re Department of Family and Protective Services, _
S.W.3d _(Tex. 2008) (per curiam), the Department's petition is denied.

************************************************************************
************************************************************************
SIGNIFICANT DECISION
Guitar Holding Co., L.P. v. Hudspeth County Underground Water Conservation District
No.1, 263 S.W.3d 910 (Tex. 5/30/2008).
Opinion By: Justice Medina

-

-

Water Regulations. Water District Rules Allowing Transfer Of Water By Some
And Not Others Are Invalid.
The Texas Water Code,§§ 36.001-.304, generally delegates the management and control
of groundwater production and use to local groundwater conservation districts, vesting
them with broad regulatory powers. When exercising these powers to limit groundwater
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 41

-

-

production, local districts may protect ex1stmg wells and production by continuing
"historic or existing use" to the extent possible under its comprehensive management
plan. The underlying rules here grandfather "historic or existing use" of groundwater in
the district to an amount of water previously used during the relevant historic period
without regard to the intended future purpose for that water. Thus, under the district rules,
production from a grandfathered well, historically used to irrigate crops, can in the future
be sold for transport out of the district as a preserved historic or existing use. The court of
appeals upheld the district' s permitting scheme, concluding, in effect, that the district's
authority to preserve the "historic or existing use" of groundwater pertained only to the
amount of water used in the past and not its purpose. 209 S.W.3d 146, 158-59. H eld:
Reversed and rendered. The district's scheme for issuing permits for the transfer of
groundwater out of the district was invalid. The district exceeded its rule-making
authority in grandfathering existing wells, without regard for both. The amount of
groundwater used, and its beneficial purpose, are components of "historic or existing
use". Although there is existing irrigation use in the district, the transfer rules do not
protect that existing use. Instead, the transfer rules permit in-district irrigators to convert
their protected existing use to an entirely new use, that is, to transfer it out of the district
for municipal and industrial purposes. Once the groundwater allocated for existing
irrigation use is transferred outside the district, however, the protected existing use ends,
as does the justification for protecting that use. Rather than protect historic or existing use
then, the District' s transfer rules, in essence, grant franchises to some landowners to
export water while denying that right to others. Because the limitations are not uniformly
applied to these new applications and are not necessary to protect existing use, the
District's transfer rules exceed the statutory authorization and are thus invalid.

-

******************* ***** *** *********************************************
************************************************************************

-

In re Zandi, 270 S.W.3d 76 (Tex. 5/30/2008).
Opinion By: Per Curiam

-

-

-

-

Contempt. Notice Required Before Revocation Of Suspension.
This is on petition for writ of habeas corpus. The trial court held relator Zandi in
contempt, for failure to pay child support, but suspended the commitment on four
conditions. Before the first status hearing, Zandi moved to modify the contempt order,
among other reasons, because his financial situation had worsened, but Richardson
moved to revoke Zandi's commitment suspension, because he had paid only $700 in
current child support for the six months since the contempt order. Zandi objected that
Richardson had not filed a written motion to revoke suspension. The court nevertheless
revoked suspension. The court of appeals denied Zandi's petition for habeas corpus.
H eld: Writ of habeas corpus is granted. The purpose of notice is to apprise the
respondent of the allegations he faces, and provide him time to prepare to respond. A
contempt order's requirement that Zandi appear at a status hearing every six months was
insufficient to put Zandi on notice that he would be required to show compliance with the
conditions of suspension at the status hearing. The requirement provided no notice at all
that allegations of noncompliance would be made or what they would be. Because that
Summ aries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 42

-

-

notice was lacking in this case, the court's order revoking suspension of commitment
must be set aside.
Contempt Notice Required By Due Process.
Alleged constructive contemners are entitled to procedural due process protections before
they may be held in contempt. There is no meaningful distinction between an
individual's rights which are at stake in a constructive criminal contempt hearing and
those at stake in an ordinary criminal trial where confinement is a possible penal
sanction. Due process of law requires that the constructive contemnor be given full and
complete notification and a reasonable opportunity to meet the charges by way of defense
or explanation. A motion to revoke criminal probation must be specific enough to give
the accused notice of alleged violation of law contrary to conditions of probation.
Similarly, section 157.214 of the Family Code provides that a motion to revoke
suspension of commitment for contempt for failure to pay child support must allege
specifically that certain conduct of the respondent constitutes a violation of the terms and
conditions of community supervision. In the present case, no motion was filed to revoke
Zandi's suspension of commitment.

************************************************************************
************************************************************************
In re Roberts, 255 S.W.3d 640 (Tex. 6/6/2008).
Per Curiam. Justice Johnson did not participate in the decision.

-

-

-

-

Mandamus Not Appropriate When Trial Court Grants A 30-Day Grace Period To
Amend Expert Report.
This is an original mandamus proceeding. In In re McAllen Medical Center, it was held
that the expert reports, required by former article 4590i, were "intended to preclude
extensive discovery and prolonged litigation in frivolous cases," and that appeal was not
an adequate remedy, when a trial court's refusal to enforce the statute would frustrate that
Here, however, the defendant health care providers
intent. _
S.W.3d
complain only that the trial court erred in granting the plaintiffs a 30-day grace period to
amend their expert reports. Held: The court of appeals erred in issuing mandamus relief,
because a 30-day extension - even if unjustified - does not substantially prolong
litigation, or allow for extensive discovery
_J

_

Note: Even assuming the 13 single-spaced pages of expert reports here were
merely conclusory (a matter we do not reach), we disagree that appeal would be
inadequate because the trial court's 30-day grace period would frustrate the
statute's purpose. The Legislature certainly intended a grace period to be granted
only under certain conditions (when inadequacy was "the result of an accident or
mistake"). But the only harm involved is a 30-day delay. By contrast, this original
proceeding has now delayed the case for four years. If the Roberts's' amended
reports (which are not in the appellate record) meet the statute's requirements,
then their case is not one of the "frivolous cases" the Legislature intended to
address. By any measure, the benefits to mandamus review of a 30-day extension
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 43

are outweighed by the detriments. See In re Prudential Ins. Co. of Am., 148
S.W.3d 124, 136 (Tex. 2004).

******* *** **** ************* **** ********* ******************* *************
************************************************************************
In re Methodist Healthcare System ofSan Antonio, Ltd., 256 S.W.3d 263 (Tex. 6/6/2008).
Per Curiam

-

Mandamus May Be Available When Art. 4590i Expert Report Is Inadequate.
In this medical malpractice case, the plaintiffs filed the vitae and reports of their experts,
as required by statute. The defendant-hospital moved for dismissal and sanctions, on the
ground that the expert reports were inadequate. Specifically, the hospital claimed that the
rep01is omitted the appropriate standard of care, as to the hospital, and contained
conclusory statements, regarding causation. The trial court denied the motion. The court
of appeals, by memorandum opinion, denied mandamus relief "because an appellate
remedy by appeal exists." _ S.W.3d_. Held: Writ of mandamus will issue. For the
S.W.3d _ (Tex. 2008) (expert
reasons stated in In re McAllen Medical Center, _
reports required by former article 4590i were "intended to preclude extensive discovery
and prolonged litigation in frivolous cases," and that appeal was not an adequate remedy
when a trial court's refusal to enforce the statute would frustrate that intent), an appeal is
not always an adequate remedy in these circumstances.

************************************************************************
************************************************************************
SIGNIFICANT DECISION
FKM Partnership, Ltd. v. Board ofRegents of the University ofHouston System, 255
S.W.3d 610 (Tex. 6/6/2008).
Justice Johnson. Justice Willett filed an opinion concurring in part and dissenting in part.
Condemnation. Landowner Expenses Are Sometimes Recoverable, If Condemnor
Amends Its Complaint To Functionally Abandon The Original Condemnation
Claim.
[Part II (B)(2). When a condemning authority amends its petition to reduce the amount
of property to be taken by over ninety-seven percent, the condemning authority is liable
for cetiain fees and expenses to the landowner, because the reduction in propetiy
condemned is so great, as to be, in effect, a functional dismissal of the original
condemnation proceeding. It is noted, however, that Tex. Prop. Code§ 21.019(b), does
not waive a condemning authority's immunity from liability for fees and expenses, when
just any downward adjustment in the size of the condemned property occurs. Other
factors, such as whether the planned use of the smaller tract, sought by amendment,
differs significantly from the tract originally sought, and whether the potential future uses
of the different tracts are similar, may be probative on the issue, in addition to the size of
the reduced claim.
Evidence To Be Considered In Hearing On Pleas To The Jurisdiction.

Summaries of the opinions of th e Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 44

-

The trial court is allowed to conduct a hearing on a plea to the jurisdiction or motion to
dismiss for lack of jurisdiction in a manner similar to how it hears a summary judgment
motion, and may consider affidavits and other summary judgment-type evidence. If the
evidence presents a fact question on the jurisdictional issue, the motion should be denied.

-

-

-

Condemnation. Presumption Of Public Necessity.
Where a statute vests a governmental agency with discretionary authority to condemn
property, the agency's determination of public necessity is presumptively correct, absent
proof by the landowner, of the agency's fraud, or proof that the condemning authority
acted arbitrarily, or capriciously.
Condemnor's Action In Taking Smaller Tract Could Be Dismissed.
If a landowner can establish that the ultimate taking of a smaller tract of land that
comprised part of a larger tract, originally sought to be condemned, is fraudulent, without
a true public purpose, and intended solely to avoid fully dismissing the entire
condemnation proceeding, so as to avoid paying the landowner's expenses under
statutory provisions, then the landowner could be entitled to dismissal. But the evidence
before the trial court, at the time it heard FKM's motions, did not conclusively establish
these matters, so as to warrant dismissal of the proceeding.
Expenses Cannot Be Recovered Under Tex. Prop. Code § 21.019(c), Unless Court
Denies Right To Condemn.
The plain language of section 21.019(c) requires an order or judgment, denying the right
of the authority to condemn the property, before fees and expenses can be recovered by a
property owner. FKM does not assert any proper basis on which the trial court's order of
dismissal could have denied the University's right to condemn the property. Accordingly,
FKM could not recover fees and expenses under section 21.0 19(c).
Nonsuit Is Effective Immediately.
In civil causes generally, filing an amended petition, that does not include a cause of
action, effectively nonsuits or voluntarily dismisses the omitted claims as of the time the
pleading is filed. No hearing is necessary to effect the nonsuit. Even if the nonsuit applies
to the entire case, the nonsuit or voluntary dismissal is effective when notice is filed or
announced in open court. Entry of an order granting the nonsuit is ministerial. A nonsuit
extinguishes a case or controversy, from the moment the motion is filed, or an oral
motion is made in open court.

Pleading Amendment Omitting Cause Of Action Is An Effective Dismissal Of That
Cause Of Action.
Under Tex. R. Civ. P. 65, amended pleadings and their contents take the place of prior
pleadings. So, causes of action, not contained in amended pleadings, are effectively
dismissed, at the time the amended pleading is filed, except for possible circumstances
not present here.

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 45

-

-

Damages Under Tex. Prop. Code § 21.044(a) Authorized Only When Condemnor
Takes Possession Of Property It does Not Have The Right To Condemn.
Tex. Prop. Code § 21.044(a) allows damages, only if the condemnor took possession of
property it did not have the right to condemn. Taking substantially less of the property
than originally sought does not justify damages under this statute. Amending its petition
to change the amount of property sought was not proof that the University did not have
the right to condemn either tract. Accordingly, FKM was not entitled to judgment for
damages under section 21.044. The courts below erred in holding otherwise.

************************************************************************
********* ***************************************************************
SIGNIFICANT DECISION
Evanston Ins. Co. v. ATOFINA Petrochemicals, Inc., 256 S.W.3d 660 (Tex. 6/13/2008).
6/13/2008 (On Motion for Rehearing. The prior of opinion o£2115/2007 is withdrawn, and
a new opinion is substituted).
Justice Green; JUSTICE HECHT and JusTICE JOHNSON joined as to Parts I, II.A-II.D, and
II.F; JUSTICE HECHT filed an opinion concurring in part and dissenting in part, in which
JUSTICE JOHNSON joined.

*****

-

[From the Texas Supreme Court Website]
The
reissued opmwn
changes the following on page 2:
We affirm the judgment of the court of appeals to the extent that it resolves the
coverage dispute in favor of the additional insured, and to the extent that it binds the
insurer to the amount recited in the settlement agreement, but we reverse the court of
appeals' judgment regarding damages and attorney's fees under article 21.55 and render
judgment that because the additional insured is not entitled to recovery of such damages
and
fees.
and the disposition in the last paragraph of the opmzon:
We reverse the court of appeals' judgment permitting ATOFINA to recover
attorney's fees and damages under article 21.55 of the Texas Insurance Code and render
judgment that because ATOFINA is entitled to no such damages or fees. We remand the
case to the trial court for further proceedings on ATOFINA's other claims for attorney's
fees, on its claim for prejudgment interest, and for rendition of judgment consistent with
this opinion

************************************************************************
************************************************************************

-

-

SIGNIFIANCT DECISION
General Elec. Co. v. Moritz, 257 S.W.3d 311 (Tex. 6/ 13/2008).
Justice Brister. Justice Green filed a dissenting opinion, in which Chief Justice Jefferson
and Justice Johnson joined. Justice O'Neill did not participate in the decision.

Premises Liability. Landowner Not Required To Warn Contractor's Employees Of
Known Hazards.
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 46

A landowner is not required to warn an independent contractor's employees of obvious
hazards about which they already know.

-

-

-

Premises Liability. Negligent Activity Claim. Right Of Control Must Be Of Activity
From Which Injury Arose.
This is a premises liability case, in which the employee of an independent contractor sued
the owner of the premises, when he fell off of a loading ramp. The landowner directed
the use of the ramp, but the plaintiff chose the method of securing the load, which was
the activity he was involved in when he fell from the ramp, which had no guard raiL
Held: The court of appeals erred in finding a fact question on plaintiffs negligent
activity theory. Generally, an owner or occupier does not owe a duty to ensure that
independent contractors perform their work in a safe manner. But one who retains a right
to control the contractor' s work may be held liable for negligence in exercising that right
This right to control may be expressed by contract or implied by conduct However, a
defendant's duty is commensurate with the control it retains over the independent
contractor's work. Thus, it is not enough to show that the defendant controlled one aspect
of the independent contractor's employee's activities if his injury arose from another.
Note: There was evidence that on the day Moritz, the employee of an
independent contractor, was injured, both doors were blocked by GE supplies, so
he parked his truck up on the ramp. Two GE employees helped him load electrical
conduit into the bed of his pickup, after which Moritz alone secured the load with
rachet-type straps. He then tried to add a rubber bungee cord, but the cord broke
while he was leaning back to stretch it, causing him to fall off the ramp's side and
fracture his hip, pelvis, and thumb. There was some evidence that in practice GE
controlled where Moritz could load his truck, such as when it blocked some of his
loading options. But there was no evidence it controlled how or where Moritz
secured his load for delivery- the truck, straps, and rubber cords he used for that
purpose were entirely his own. The court of appeals held that a fact question was
created if GE retained the right to control any aspect of Moritz's activities.

-

Premises Liability. Premises Conditions. Independent Contractor Must Warn
Employees Of Obvious Pre-Existing Condition.
Plaintiff-Moritz, the employee of an independent contractor, alleged a premisescondition claim. Held: Generally, a landowner is liable to employees of an independent
contractor, only for claims arising from a pre-existing defect, rather than from the
contractor' s work, and then only if the pre-existing defect was concealed. With respect to
existing defects, an owner or occupier has a duty to inspect the premises and warn of
concealed hazards that the owner knows or should have known about. Moritz's claimed
defect - the absence of rails on the loading ramp - was obviously a pre-existing
condition and obviously not a concealed hazard. One who hires an independent
contractor, generally, expects the contractor to take into account any open and obvious
premises defects in deciding how the work should be done, what equipment to use in
doing it, and whether its workers need any warnings. Placing the duty on an independent
contractor to warn its own employees or make safe open and obvious defects ensures that
the party with the duty is the one with the ability to carry it out. The absence of handrails

-

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 47

-

-

here was clearly not a concealed defect. If owners and occupiers have no duty to warn an
independent contractor of open and obvious defects, the defendants had no duty to warn
Moritz that the ramp he had been using for more than a year had no handrails.

-

Premises Liability. Duty To Independent Contractor. Parker Did Not Abolish All
"No-Duty" Defenses.
The court of appeals held that the defendants still owed Moritz a duty to warn or make
the ramp safe because this Court abolished all no-duty arguments in 1978 in Parker v.
Highland Park, 565 S.W.2d 512, 517 (Tex. 1978). But Parker does not go that far, as
was explained more than 20 years ago in Dixon v. Van Waters and Rogers, 682 S.W.2d
533, 533-34 (Tex. 1984). Parker abolished a certain kind of no-duty defense, not all duty
questions whatsoever. The question in Parker was not whether the defendant owed the
plaintiff a duty; the landlord unquestionably had a duty to provide second-floor renters
some way down besides jumping. The question instead, was whether the plaintiff had to
prove she had no knowledge of the stairway's darkness as part of her case-in-chief. A
plaintiff does not have the burden to prove and obtain findings that he lacked knowledge
and appreciation of a danger; he must, however, prove the defendant had a duty and
breached it. Like any other negligence action, a defendant in a premises case is liable
only to the extent it owes the plaintiff a legal duty. Whether such a duty exists is a
question of law for the court; it is not for the jury to decide under comparative negligence
or anything else. If (for example) a defendant neither owns nor occupies the premises, a
jury cannot impose a ·duty anyway on the theory that Parker abolished all no-duty
defenses. The Court does not overrule Parker, comparative negligence, or principles of
premises liability law that govern virtually all other jurisdictions.
The Court
acknowledges that GE had a duty to exercise care with respect to matters over which it
exercised control, but it did not control where or how Moritz chose to secure his load.
Unlike other invitees, independent contractors are hired for special projects that often
entail special expertise, and can be expected to use whatever equipment or precautions
are necessary so long as a hazard is not concealed. If Moritz wanted to use bungee cords
and lean over backwards, that was his business; but he could not require GE to keep him
safe no matter how he chose to do his own work.
Premises Owner Not Required To Warn Employee Of Independent
Contractor Of Dangers Known To Independent Contractor.
While an owner owes a duty to employees of an independent contractor, to take
reasonable precautions, to protect them from hidden dangers on the premises, or
to warn them thereof, an adequate warning to, or full knowledge by, the
independent contractor of the dangers should and will be held to discharge the
landowner's alternative duty to warn the employees.

************************************************************************
************************************************************************

-

SIGNIFICANT DECISION

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 48

-

-

,..

-

-

-

Frymire Engineering Co., Inc. v. Jamar Jnt'l, Ltd., 259 S.W.3d 130 (Tex.
6113/20086113/2008

Subrogation Doctrine Applies To Subcontractors If Traditional Requirements Of
Subrogation Are Met.
The owner of the Renaissance Hotel in Dallas hired Price Woods, as general contractor,
to remodel a hotel meeting room. Price Woods, in tum subcontracted the HVAC and
sheet metal work to Frymire. As part of its contract, Frymire agreed to pay for any
damages caused to Price Woods or the hotel owner "by reason of [Frymire's]
performance of the work" and to obtain liability insurance to cover this indemnity
obligation. While working on the hotel's air conditioning system, Frymire's employees
installed an "Add-A-Valve" to a chilled water line. The water line later ruptured at the
site of the valve, resulting in extensive water damage to the hotel. Frymire's insurer,
Liberty Mutual, paid the owner $458,496 on Frymire's behalf; and the parties signed an
agreement releasing Frymire and Liberty Mutual from "all actions, claims, and demands"
stemming from the incident. Frymire, by and through Liberty Mutual then sued the
manufacturers of the "Add-A-Valve"- Jomar-to recoup the indemnification payment,
alleging damages from Jamar's negligence, product liability, and breach of warranty. The
trial court granted Jamar's motions for summary judgment. The court of appeals
affirmed, holding that Frymire lacked standing to assert its claims, because it failed to
establish a right to equitable subrogation. Held: Reversed and remanded. Frymire has
standing to pursue its claims under the doctrine of equitable subrogation. The doctrine
of subrogation applies to a subcontractor seeking to recoup contractual payments from
alleged third-party tortfeasors, provided the traditional requirements of subrogation are
satisfied. Here, Frymire has standing since the traditional requirements of subrogation
have been met. The evidence supports Frymire's contentions that it (1) paid a debt
primarily owed by Jamar (Frymire's indemnity payment satisfied a debt primarily owed
by Jamar to the hotel owner), (2) did so involuntarily, and (3) seeks subrogation in a
situation where Jamar would be unjustly enriched if Frymire were precluded from
pursuing its claims. Having concluded that, we reverse the court of appeals' judgment
and remand to that court for further proceedings.

Equitable Subrogation Provides Standing To Those Who Involuntarily Pay A Debt
Primarily Owed By Another.
The doctrine of equitable subrogation allows a party, who would otherwise lack standing,
to step into the shoes of, and pursue, the claims belonging to a party with standing. Texas
courts interpret this doctrine liberally. Although the doctrine most often arises in the
insurance context, equitable subrogation applies in every instance in which one person,
not acting voluntarily, has paid a debt for which another was primarily liable, and which
in equity should have been paid by the latter. Thus, a party seeking equitable subrogation
must show it involuntarily paid a debt, primarily owed by another, in a situation that
favors equitable relief.

************************************************************************
************************************************************************
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 49

Lelandv. Branda/, 257 S.W.3d 204 (Tex. 6/13/2008).
Justice O'Neill. Justice Brister filed a dissenting opinion.

-

-

-

Health Care Claim. Trial Or Appellate Court May Grant One Thirty-Day
Extension When Elements Of The Report Are Found To Be Deficient.
A plaintiff, pursuing a health care liability claim, may, under Tex. Civ. Prac. & Rem.
Code§ 74.35l(c), be afforded a thirty-day extension, to cure an expert report, after a trial
court's ruling that the report is adequate is reversed on appeal. One thirty-day extension
may be granted, when "elements of the report are found deficient," and does not confine
that review to a particular court. Here, the court of appeals "found deficient" an element
of one of the Brandals' two expert reports, exercising the power of review the Legislature
granted in section 51.014(a). The sua sponte discretion vested in "the court" to grant a
thirty-day extension is as broad in the court of appeals as in the trial court.

Health Care Claim. Deadline For Filing Expert Report Is Triggered When The
Plaintiff Files Suit.
In a health care liability action, pursuant to the 2003 version of Tex. Civ. Prac. & Rem.
Code § 74.35l(a), the 120-day deadline to file expert reports is triggered when the
plaintiff files suit.

************************************* *********** ************************
************************************************************************

-

-

-

-

SIGNIFICANT DECISION
Kao Holdings, L.P. v. Young, 261 S.W.3d 60 (Tex. 6/13/2008).
Justice Hecht.

General Partnership Served By Serving General Partner Does Not Authorize
Judgment Against General Partner.
This is a restricted appeal from a default judgment against Kao Holdings, L.P., a Texas
limited partnership, and its general partner, William Kao. Young sued Kao Holdings for
damages, alleging that it owned the Seb1ing Apartments where she was living when she
fell in the laundry room and injured her hip. Young did not sue Kao individually, but
served the partnership by serving him. When Kao Holdings did not answer, Young filed
a motion for default judgment stating that "Defendant, William Kao was properly and
personally served" and had not answered. The motion requested "a default judgment
granting the relief requested in Petitioner's Original Petition. " After a hearing, of which
there is no record, the court rendered judgment. The court of appeals affirmed the
liability portion of the judgment, holding that judgment against Kao individually was
proper, even though he was not a party. Held: The judgment against Kao must be
reversed. Kao was neither named nor served as a party. A judgment shall not be rendered
against one who was neither named, nor served as a party defendant, [and did not waive]
service by making a general appearance before the court. Additionally, Rule 239 of the
Texas Rules of Civil Procedure provides for default judgment only against "a defendant".
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 50

Kao was not a defendant. Rule 301 requires that "[t]he judgment of the court shall
conform to the pleadings". Young pleaded no claim against Kao.

-

Pa:r:tners Must Be Named And Served Before Being Held Personally Liable For A
Partnership Debt.
While partners are generally liable for the partnership's obligations, a judgment against
the partnership is not automatically a judgment against the pmtner, and that judgment
cannot be rendered against a partner who has not been served, merely because judgment
has been rendered against the partnership. The purpose of the provision is to state that
service is necessary, not that it is sufficient. Partners against whom judgment is sought
should be both named and served so that they are on notice of their potential liability and
will have an opportunity to contest their personal liability for the asserted partnership
obligation. Article 6132b-3.05(c) does not support a judgment against Kao individually.

*********************************** ***** ****** ****************** ********
************************************************************************
In re Fleetwood Homes ofTexas, L.P., 257 S.W.3d 692 (Tex. 6/20/2008).
Per Curiam

Arbitration Is Not Waived By Discussing A Trial Setting And Sending Written
Discovery.
This is an original mandamus proceeding. Held: While parties that conduct full
discovery, file motions going to the merits, and seek arbitration, only on the eve of trial,
waive any contractual right to arbitration, parties who fail to pursue arbitration for eight
months, who discuss a potential trial setting, and who send a set of written discovery, the
day before moving to compel arbitration, do not waive the right to arbitration.

-

Arbitration. Waiver Is A Legal Question.
A party waives an arbitration clause by substantially invoking the judicial process to the
other party's detriment or prejudice. Waiver is a legal question for the court, based on the
totality of the circumstances, and asks whether a party has substantially invoked the
judicial process, to an opponent's detriment, the latter term meaning inherent unfairness,
caused by a party's attempt to have it both ways by switching between litigation and
arbitration to its own advantage.
Arbitration's Limits On Discovery Does Not Make It Unconscionable.
An arbitration clause, which places limits on discovery for both parties, is not
unconscionable. The test for substantive unconscionability is whether, given the parties'
general commercial background and the commercial needs of the particular trade or case,
the clause involved is so one-sided that it is unconscionable. under the circumstances
existing when the parties made the contract.
Arbitration Agreement Allowing Either Party To Recover Attorney's Fees Is Not
Unconscionable.

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 51

-

The arbitration agreement in question 1s not unconscionable, because it allows the
prevailing party to recover attorney's fees . It is true that under Tex. Civ. Prac. & Rem.
Code § 38.001-.002, absent a contractual agreement like this, Texas law allows
attorney's fees only for a prevailing plaintiff. But allowing both parties to recover fees
does not make an agreement "one-sided"; such agreements, common in commercial
contexts, surely make them less so.

-

************************************************************************
************************************************************************

-

-

-

-

-

-

-

SIGNIFICANT DECISION
In re Lyon Financial Serv., Inc., 257 S.W.3d 228 (Tex. 6/20/2008).
Per Curiam.
Forum Selection Clause Enforced Even Thought Forum Selected Does Not Allow
Usury Claim By Corporation.
MNI also claims that enforcement of the forum-selection clause would unjustly preclude
its day in court, because Pennsylvania law does not allow a corporation to maintain a
cause of action for usury. Held: The forum selection clause is valid. MNI's inability to
assert its usury claim in Pennsylvania does not create a public policy reason to deny
enforcement of the forum-selection clause. Absent a Texas statute requiring suit to be
brought in Texas, the existence of Texas statutory law in an area did not establish such
Texas public policy as would negate a contractual forum-selection provision .. Further,
MNI has made no showing that even if Pennsylvania law is applied, Pennsylvania would
not apply Texas law in determining the parties' rights. Thus, MNI did not provide
evidence that enforcing the forum-selection clause would subvert Texas' public policy in
regard to usury.
Forum Selection Clause Enforceable, Unless Specific Clause Was Result Of Fraud
Or Coercion.
Fraudulent inducement to sign an agreement, containing a dispute resolution agreement,
such as an arbitration clause or forum-selection clause, will not bar enforcement of the
clause, unless the specific clause was the product of fraud or coercion. Under the
evidence, detailed in the opinion, the forum selection clause in this case was not obtained
by fraud or coercion. A party who signs an agreement is presumed to know its contents.
That includes documents specifically incorporated by reference.
Forum Selection Clause Valid, If Not The Result Of Overreaching. Bargaining
Position?.
Disparity in bargaining power is most commonly described as occurring, when one party
has no choice, but to accept an agreement limiting the liability of another party. In
Hernandez's affidavit, he claimed that he was not able to obtain any legal advice, he does
not have formal business school training, he was unaware of the "contract provision when
[he] signed it," and that "the documents" were presented to him on a "take-it-or-leave-it"
basis. Held: The forum selection clause was valid. A bargain is not negated, because one
party may have been in a more advantageous bargaining position. Rather, cowts consider
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Way ne Scott Page 52

-

-

-

-

-

whether a contract results in unfair surprise or oppression. The forum-selection clause in
question was in all capital letters and was similar to the clause in the Master Agreement.
Additionally, parties to a contract have an obligation to protect themselves, by reading
what they sign and, absent a showing of fraud, cannot excuse themselves from the
consequences of failing to meet that obligation. Hernandez's statements do not evidence
overreaching or trickery by Lyon. They show a transaction where Lyon offered to do
business, on a specified basis, and MNI accepted.
Forum Selection Clause Was Not An Invalid Adhesion Clause. Adhesion Clauses
Are Not, Per Se, Invalid.
As evidence of unfairness and overreaching, MNI points to the clause permitting Lyon to
litigate its claims in either Texas or Pennsylvania, while limiting MNI to seeking relief in
Pennsylvania. MNI also claims that the inclusion of the forum-selection clause created an
adhesion contract with Lyon. Held: The forum selection clause was valid. Parties have
the right to contract as they see fit, as long as their agreement does not violate the law or
public policy. In the arbitration context, arbitration clauses generally do not require
mutuality of obligation, so long as adequate consideration supports the underlying
contract. MNI has not made any claim that either the Master Agreement or Restructuring
Agreement were not supported by adequate consideration. The circumstances, under
which the contracts were made, do not show that the clause is so one-sided as to be
unconscionable. Further, even it is assumed that the agreement constituted a contract of
adhesion, adhesion contracts are not per se unconscionable or void.
Forum Selection Clause Valid. Inconvenience In Litigating In Foreign Forum
Foreseeable.
MNI urges that Pennsylvania, the forum selected by contract, is such an inconvenient
forum that enforcing the forum-selection clause would produce an unjust result. In
making this assertion, MNI references only Hernandez's affidavit to the effect that "MNI
does not have the financial or logistical ability to pursue its claims in Pennsylvania.
Because Pennsylvania is so distant, if this Court required MNI to pursue this claim there,
MNI will be unable to pursue its rights-MNI is a small, local business." Held: The
forum selection clause will be enforced. There is no proof to show an "unjust result" if
the forum-selection clause is enforced. Inconvenience in litigating in the chosen forum
may be foreseeable at the time of contracting, and when that is the case, it should be
incumbent on the pati y seeking to escape his contract to show that trial in the contractual
forum will be so gravely difficult and inconvenient that he will for all practical purposes
be deprived of his day in court. By entering into an agreement with a forum-selection
clause, the parties effectively represent to each other that the agreed forum is not so
inconvenient that enforcing the clause will deprive either party of its day in court,
whether for cost or other reasons. Absent proof of special and unusual circumstances,
which are not shown here, trial in another state is not "so gravely difficult and
inconvenient" as to avoid enforcement of an otherwise valid forum-selection clause.
There is no proof to show an "unjust result" if the forum-selection clause is enforced.

Note: If merely stating that financial and logistical difficulties will preclude
litigation in another state suffices to avoid a forum-selection clause, the clauses
Summaries of the opinions of the Texas Supreme Cou rt 3/28/08-3/27/09 - By L. Wayne Scott Page 53

-

are practically useless. Financial difficulties on behalf of one party or the other
are typically part of the reason litigation begins. Further, Pennsylvania is not a
"remote alien forum."

***************************************** *** ** ******* **** ******* ********
**************** ************ ******************* *************************
SIGNIFICANT DECISON
Pleasant Glade Assembly ofGod v. Schubert, 264 S.W.3d 1 (Tex. 6/27/2008).
Justice Medina; Chief Justice Jefferson filed a dissenting opinion, in which Justice Green
joined, and in Parts 11-A, III, and IV of which Justice Johnson joined; Justice Green filed
a dissenting opinion; Justice Johnson filed a dissenting opinion.

Judicial Estoppel Does Not Apply To Inconsistencies In The Same Proceeding.
[Part II] In this action against Pleasant Glade, the senior pastor, the youth minister, and
other members of the church, for damages arising out of "laying hands" regarding the
defendants' First Amendment claim, the court of appeals concluded that the church and
pastors were judicially estopped to assert their constitutional rights, because they had
taken a contrary position in the previous mandamus proceeding, by allowing Laura's
claims of assault, battery, and false imprisonment "to go forward." 174 S.W.3d 388, at
407. Held: The church is not estopped to assert its First Amendment defense. Judicial
estoppel does not apply to contradictory positions taken in the same proceeding. The
doctrine of judicial estoppel precludes a party from adopting a position inconsistent with
one that it maintained successfully in an earlier proceeding. Contradictory positions,
taken in the same proceeding, may raise issues of judicial admission, but do not invoke
the doctrine of judicial estoppel. The doctrine is not strictly speaking estoppel, but rather
is a rule of procedure based on justice and sound public policy. It's essential function is
to prevent the use of intentional self-contradiction, as a means of obtaining unfair
advantage. The doctrine does not apply to the church's free exercise claim here, for at
least three reasons: ( 1) the asserted inconsistency did not arise in a prior proceeding, but
in this same case; (2) the church did not gain any advantage from the asserted
inconsistency; and, most importantly, (3) the church has consistently asserted its First
Amendment rights throughout this case, including the mandamus proceeding, in which it
sought relief from certain tort claims, implicating church beliefs and practices.

-

-

Church's Activity In Laying Of Hands Protected By First Amendment.
[Part III] Plaintiff's (Laura's) claimed emotional injuries resulting from "the laying of
hands", forcibly, and against her will, in the course of religious proceedings. The
defendants admit that Laura's claims for physical injuries would not be protected, but
assert that any emotional injury arising out of "laying hands" is protected. Held:
Reversed and the case is dismissed. The church's religious practice of "laying hands" is
entitled to First Amendment protection. The Free Exercise Clause prohibits coUits from
deciding issues of religious doctrine. Here, the psychological effect of church belief in
demons and the appropriateness of its belief in "laying hands" are at issue. Providing a

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 54

remedy for the very real, but religiously motivated, emotional distress, in this case, would
require the courts to take sides in what is essentially a religious controversy.

-

Note: Even if a jury could parse the emotional damages attributable solely to
secular activity, which is doubtful, and even though the elements of a common
law tort may be defined by secular principles, without regard to religion, it does
not necessarily follow that application of those principles, to impose civil tort
liability, would not run afoul of protections the constitution affords to a church's
right to construe and administer church doctrine. In this case, although Laura's
secular injury claims might theoretically be tried without mentioning religion, the
imposition of tort liability for engaging in religious activity to which the church
members adhere would have an unconstitutional "chilling effect", by compelling
the church to abandon core principles of its religious beliefs. Clearly, the act of
"laying hands" is infused in Pleasant Glade's religious belief system. Laura's
claims also involve church beliefs on demonic possession, and how discussions
about demons at the church affected Laura emotionally and psychologically.

Limits On Religious Conduct Are Possible.
Although the Free Exercise Clause does not categorically insulate religious conduct from
judicial scrutiny, it prohibits courts from deciding issues of religious doctrine. The Court
does not mean to imply that under the cloak of religion, persons may, with impunity,
commit intentional torts upon their religious adherents. Freedom to believe may be
absolute, but freedom of conduct is not, and conduct even under religious guise remains
subject to regulation for the protection of society. Moreover, religious practices that
threaten the public's health, safety, or general welfare cannot be tolerated as protected
religious belief. But religious practices that might offend the rights or sensibilities of a
non-believer outside the church are entitled to greater latitude when applied to an
adherent within the church. Particularly, when the adherent's claim, as here, involves
only intangible, emotional damages allegedly caused by a sincerely held religious belief,
courts must carefully scrutinize the circumstances so as not to become entangled in a
religious dispute. And while circumstances can be imagined under which an adherent
might have a claim for compensable emotional damages as a consequence of religiously
motivated conduct, this is not such a case.

************************************************************************
************************************************************************
SIGNIFICANT DECISION
JCW Electronics v. Garza, 257 S.W.3d 701 (Tex. 6/27/2008).
Opinion By: JUSTICE MEDINA; CHIEF JUSTICE JEFFERSON filed a concurring opinion in
which JUSTICE O'NEILL joined.

-

Comparative Negligence Applies To Breach Oflmplied Warranty Claim.
The court of appeals concluded that Chapter 33 did not apply to this type of claim,
because a "complete framework of rights and remedies for transacting parties" was
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 55

already available under article 2 of the UCC. 176 S.W.3d 6 18, 633. Held: Reversed and
rendered. A claim for breach of implied warranty, under article 2 of the Texas Uniform
Commercial Code, is a tort claim, to which Tex. Civ. Prac. & Rem. Code Chapter 33's
apportionment scheme should apply. A party who seeks damages for death or personal
injury under a breach of implied warranty claim seeks damages in tort and is accordingly
subject to Chapter 33. Chapter 33 provides that "a claimant may not recover damages if
his percentage of responsibility is greater than 50 percent." When the claim involves
death, as here, "claimant" is defined to include not only the party seeking damages, but
also the decedent. Because the jury found the decedent negligent and apportioned him
sixty percent of the responsibility for his death, his contributory negligence bars recovery
in this case.

************************************************************************
************************************************************************

-

-

-

SUPREME COURT
In re Chambless, 257 S.W.3d 698 (Tex. 6/27/2008).
Per Curiam
Grandparent Visitation Order Must Not Be Issued Without Giving Custodial
Parent An Opportunity To Be Heard.
This is an original mandamus proceeding. The relator, Stacy D. Chambless, is the mother
of seven-year-old J.A.C. In a suit affecting the parent-child relationship, the trial court
appointed Stacy managing conservator, and J.A.C. 's father, Bobby D. Cook, Jr.,
possessory conservator of J.A.C. with the paternal grandparents supervising Cook's
visitation. After Cook died in a motorcycle accident, the paternal grandparents filed a
petition, seeking visitation, under section 153.432 ofthe Texas Family Code. Stacy, the
custodial parent, moved for a directed verdict after the presentation of the grandparents'
case-in-chief, arguing that the grandparents had failed to show that J.A.C. would suffer
significant physical or emotional impairment, absent visitation with his grandparents. The
trial court, however, denied the motion and recessed the hearing until the social worker
was available to testify. The trial court then signed an "interim" visitation order,
allowing the grandparents access to J .A.C. for three days each month, over Stacy's
objection, and without giving her an opportunity to present evidence on the subject.
Held: The trial court abused its discretion in awarding temporary grandparental
visitation, without affording the custodial parent an opportunity to be heard. A parent
must be given a meaningful oppmtunity to be heard, before a trial court awards
temporary grandparental visitation.
Grandparents' Access To Child. Standards Which Must Be Met.
Possession of, or access, to a child by a grandparent is governed by the standards
established by Chapter 153 of the Texas Family Code. A grandparent, seeking courtordered visitation, must overcome the presumption that a parent acts in the best interest
of the child by proving, by a preponderance of the evidence, that denial of possession of,
or access, would significantly impair the child's physical health or emotional well-being.
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 56

-

A trial court abuses its discretion, when it grants access to a grandparent who has not met
this standard.

-

Parent Has Fundamental Right To Make Decisions Concerning Custody And
Control Of Parent.
Parents enjoy a fundamental right to make decisions, concerning the care, custody, and
control of their children. This natural right which exists between parents and their
children is one of constitutional dimensions. So long as a parent adequately cares for his
or her children (i.e., is fit), there will normally be no reason for the State to inject itself
into the private realm of the family. The State cannot infringe on the fundamental right
of parents to make child rearing decisions, simply because a state judge believes a better
decision could be made.

************************************************************************
************************************************************************
In re Office ofthe Attorney General, 257 S.W.3d 695 (Tex. 6/27/2008).
Opinion By: Per Curiam
Temporary Restraining Order. Requirements.
Texas Rules of Civil Procedure 680 and 684 require a trial court, issuing a temporary
restraining order to: (1) state why the order was granted without notice, if it is granted ex
parte; (2) state the reasons for the issuance of the order, by defining the injury and
describing why it is irreparable; (3) state the date the order expires, and set a hearing on a
temporary injunction; and ( 4) set a bond. Orders that fail to fulfill these requirements are
void.

-

-

-

Temporary Restraining Order Issued Without Notice, Without Defining The Injury
To Be Preven ted, Why Injury Irreparable, And Without Bond, Are Void.
Temporary restraining orders, issued ex parte, which fail to explain why they were
granted without notice, which do not define the injury they were designed to prevent, or
explain why such injury would be irreparable, and which were issued without meeting the
bond requirement, are procedurally void.
Mandamus Available To Set Aside Void TRO, Which Could Cost Loss Of Federal
Funding.
Because temporary restraining orders are not appealable, the Attorney General has no
remedy by appeal, in this case. Furthermore, the Attorney General has presented evidence
that Texas could lose federal funding, if he is forced to comply with the orders, pending
the outcome of proceedings, to amend the underlying child-support orders. Given the
unavailability of appeal and the gravity of interests at issue in this case, mandamus will
issue.

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 57

-

******************************************************** ****************
************************************** **********************************
City of Waco v. Lopez, 259 S.W.3d 147 (Tex. 7/11/2008).
7111/2008

-

CHRA, And Not The WhistlebJower Act, Provides The Exclusive Remedy For A
Retaliatory Discharge Claim.
Lopez sued the City under the Whistleblower Act, Tex. Gov't Code §§ 554.001-.010,
claiming that he was fired in retaliation for filing a grievance with the EEO officer,
pursuant to the City's EEO policy. The City filed a plea to the jurisdiction, arguing that
the Texas Commission on Human Rights Act (CHRA), Tex. Lab. Code§§ 21.001-.556,
provided the exclusive remedy for Lopez's retaliatory discharge claim. The trial court
denied the City's plea to the jurisdiction, and the comt of appeals affirmed. 183 S.W.3d
825. Held: Reversed and dismissed. The Texas Commission on Human Rights Act
(CHRA), §§ 21.001- .556, provides the exclusive state statutory remedy for Lopez's
retaliatory discharge claim, because he is a covered employee, under the CHRA, and his
retaliation claim falls squarely within the CHRA's ambit. It is a specific statute, which
controls over the more general Whistleblower Act. Dismissal of the claim is required,
since Lopez's retaliation claim is not actionable, under the only pleaded theory, and the
pleadings and evidence establish that Lopez has not satisfied the administrative
prerequisites, for maintaining a retaliation claim, under the CHRA. This holding is
limited to retaliatory discharge claims, premised on the type of harm, which the CHRA
was enacted to redress. The Court expresses no opinion about whether a Whistleblower
Act claim may be available to vindicate retaliation, based on other laws that define
discrimination, to include conduct that is not prohibited, under the CHRA.
Dismissal For Want Of Jurisdiction When T he Pleadings Or Evidence Affirmatively
Negate A Jurisdictional Fact.
In an appeal of a ruling on a plea to the jurisdiction, a reviewing court must determine
whether facts have been alleged, that affirmatively demonstrate jurisdiction in the trial
court. The court must also consider evidence, tending to negate the existence of
jurisdictional facts, when necessary to resolve the jurisdictional issues raised. The court
construes the pleadings liberally in favor of the plaintiff, and a fact question, regarding
jurisdiction, prevents the court from granting the plea to the jurisdiction. If the pleadings
or evidence affirmatively negate a jurisdictional fact, however, a court may grant a plea
to the jurisdiction, without allowing the plaintiff to amend. These are questions of law
that are reviewed de novo.

-

-

CHRA And Whistleblower Acts Distinguished.
The CHRA was enacted to address the specific evil of discrimination and retaliation in
the workplace. By enacting the CHRA, the Legislature created a comprehensive
remedial scheme that grants extensive protections to employees in Texas, implements a
comprehensive administrative regime, and affords carefully constructed remedies. These
protections and related restrictions are expressly extended to public employees. Like the
Whistleblower Act, the CHRA prohibits retaliation against employees, but the universe

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 58

of conduct, on which the retaliation must be premised, is confined to employment
discrimination, and the entire CHRA is devoted to this subject. In contrast, the
Whistleblower Act provides a general remedy for retaliation, based on the report of any
violation of law. The Whistleblower Act is a broad remedial measure, intended to
encourage disclosure of governmental malfeasance and corruption. Public employees
may proceed, under the Whistleblower Act, for retaliation claims, but the Act is not
specific to retaliation, arising from employment discrimination complaints. Because the
statutes provide irreconcilable and inconsistent regimes for remedying employer
retaliation, and the CHRA is focused precisely on combating the discrimination-rooted
retaliation, of which Lopez complains, the more specific and comprehensive antiretaliation remedy, in the CHRA, forecloses relief, under the more general Whistleblower
Act.

************************************************************************
************************************************************************

.....

David J Sacks, P.C. v. Haden, 266 S.W.3d 447 (Tex. 7/1112008).
Per Curiam

Fee Agreement Contract For Hourly Rate May Not Be Modified By Oral Capping
Agreement.
A written attorney's fee agreement, that specifies only hourly fee rates, may not be
modified, by evidence of an oral capping agreement. Such an open-ended hourly fee
agreement will be enforced, even though it does not expressly state that there is no cap on
fees. If a contract is unambiguous, the parol evidence rule precludes consideration of
evidence of prior or contemporaneous agreements, unless an exception to the parol
evidence rule applies. The absence of a fixed total price for services does not indicate a
failure ofthe parties to reach a meeting of the minds, with regard to the essential terms of
the contract. Where the parties have done everything else necessary, to make a binding
agreement for the sale of goods or services, their failure to specify the price does not
leave the contract so incomplete, that it cannot be enforced. In such a case, it will be
presumed that a reasonable price was intended.

********************************************************************* ***
********************************************** ** ********* *********** ****

-

-

-

David J Sacks, P.C. v. Haden, 263 S.W.3d 919 (Tex. 7/11/2008).
Per Curiam

Case Remanded To The Court Of Appeals To Determine Validity Of Turnover
Order.
This is an appeal of a trial court's turnover order, awarding fees, which a law firm
incurred in its efforts to recover damages, awarded for a client' s breach of their fee
agreement. David J. Sacks, P.C. obtained partial summary judgment on his breach of
contract claim, against former client Haden, and his company, and the trial court awarded
Sacks $30,314.38, plus interest. When Haden did not supersede that judgment, pending

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 59

his appeal of the case, Sacks, under section 31.002 of the Texas Civil Practice and
Remedies Code, secured a turnover order, to have a receiver appointed, prevent
postjudgment transfer of assets, and seek dismissal of Haden's eventual bankruptcy
filings. The trial court ruled, that Section 31.002(e), entitled Sacks to attorney's fees,
incurred in collection of the judgment, and awarded Sacks reasonable costs and
attorney's fees. The court of appeals reversed and remanded. 222 S. W. 3d 580. Held:
Reversed and remanded to the court of appeals, for consideration of whether the turnover
order was proper, under Section 31.002(e), in light of the decision in David J. Sacks, P.
C. v. Haden, decide this day, in which the court of appeals' judgment, with respect to
the breach of contract claim, was reversed.

********************************************************************** **
**************** ********************************** **********************
Sells v. Drott, 259 S.W.3d 156 (Tex. 7/11/2008).
Per Curiam

Default Judgment May Not Be Set Aside, Without Notice To A Defendant
Who Has Purportedly Answered.
Drott sued Sells for specific performance of a contract, to buy Sell's property. An
answer and an amended answer, which were facially valid, were filed on behalf of
Sells. The trial court, after hearing evidence that the answers may, or may not,
have been signed by Sells, or by one purporting to act as her next friend, struck
those answers, without prior notice to Sells, that the validity of the answers was
disputed. The court of appeals affirmed. Held: Reversed, the default judgment is
vacated, and the case is remanded to the trial court. Regardless of whether the
trial court had some evidence, to support striking the answers on file for Sells, the
trial court was required to give her notice, and an opportunity to present evidence
and argument, before striking the answers and granting a default judgment. Sells
was entitled to an opportunity to prove that such defects were not true or not fatal,
or to argue that she had a right to cure the defects, if possible.

-

Answer. Failure To Comply With Signature Requirement Is A Curable
Irregularity.
The signature to a pleading is a formal requisite. The failure to comply with the
requirement is an irregularity, that may allow the pleading to be stricken out upon
motion, or to be treated as a nullity by the court; but it is one which does not
operate to the injury of the opposing party, and therefore, its amendment cannot
prejudice his rights, upon the trial of the cause.

************** ** ************************************** ********** **** ****
************************************************************************
In re S.K.A., MA., and SA., 260 S.W.3d 463 (Tex. 2008).

-

In re K. Wand MA., 260 S.W.3d 462 (Tex. 2008).
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 60

-

-

In reD. W, T W, and S.G., 260 S.W.3d 462 (Tex. 2008).
In re JJ , 260 S.W.3d 461 (Tex. 2008).
In re D.F., 260 S.W.3d 461 (Tex. 2008).
All per curiam opinions.
Family Law. Court Does Not Pass On Constitutionality Of Texas Family Code
Section 263.40S(j).
In each of these cases, the Court issues this identical statement: "The petition for review
is denied. In denying the petition, we neither approve nor disapprove the holding of the
court of appeals regarding the constitutionality of Texas Family Code section
263.405(i)." Family Code section 253.405(i) provides: "(i) The appellate court may not
consider any issue that was not specifically presented to the trial court in a timely filed
statement of the points on which the party intends to appeal or in a statement combined
with a motion for new trial. For purposes of this subsection, a claim that a judicial
decision is contrary to the evidence or that the evidence is factually or legally insufficient
is not sufficiently specific to preserve an issue for appeal."

************************************************************************
************************************************************************

-

-

-

-

SIGNFICANT DECISION
Columbia Medical Center ofLas Colinas, Inc. v. Hogue, 271 S.W.3d 238 (Tex.
8/29/2008).
Justice Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson,
Justice O'Neill, Justice Brister, Justice Medina, Justice Jolmson, and Justice Willett
joined, and in Parts II-A, II-C, and li-D of which Justice Hecht and Justice Green joined.
Justice Brister filed a concurring opinion, in which Justice Medina joined. Justice Green
filed an opinion concurring in part and dissenting in part, in which Justice Hecht joined.
Gross Negligence Established In Medical Malpractice Case.
[Part II B]. This is a medical malpractice case. In this appeal, it is undisputed that the
hospital caused Bob Hogue's death. The primary issue is whether sufficient evidence was
admitted at trial to support the jury's finding that the hospital was also grossly negligent
in causing Hogue's death. An echocardiogram was ordered for Hogue "stat", but was not
immediately available. Held: The judgment of the comt of appeals, affirming the award
of exemplary damages, capped by the MLIIA, is affirmed. There is clear and convincing
evidence that Columbia Medical had actual knowledge of the necessity for emergency
echo services in this case, declined to make such services available, and failed to
communicate the limitation on its echo services to the physicians or nursing staff. In this
case, the hospital knew of the "obvious" necessity for potentially life-saving stat echo
capabilities in connection with the emergency medical services it decided to provide.
Notwithstanding that knowledge, the hospital failed to obtain an appropriate response
time for critical support services, failed to advise the medical staff of that limitation so

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 61

they could properly and timely treat patients in acute distress or transfer them to another
facility, and failed to provide an effective procedure to respond appropriately to Hogue's
life-threatening situation. Under those circumstances, a jury could properly conclude the
hospital acted with conscious indifference.

-

-

-

-

Damages. Loss Of Inheritance Damages. Requirements.
[Part II C.] Loss of inheritance damages may be recovered in appropriate circumstances.
When loss of inheritance damages are recoverable, a plaintiff must prove that the
decedent's earnings, less his expenditures, would have left an estate for his beneficiaries
to inherit, and that the beneficiaries would have outlived the decedent. Although loss of
inheritance damages are allowed, and are to an extent indeterminate, the willingness of
the law to accommodate some indeterminacy in assessing damages does not mean there
are no limits. If a plaintiff proves loss of inheritance damages, the beneficiary is entitled
to the present value of the beneficiary's share of what the decedent's estate would have
been, if the decedent had died a natural death.
Damages. Loss Of Inheritance. Evidence Needed That Beneficiary Would Have
Survived.
[Part II C.] The Hogues did not present legally sufficient evidence to support, either that
Hogue's wife would have outlived her husband, if he had died a natural death, or that he
would have had an estate left after his passing to bequeath to his beneficiaries. Proof was
not required that Hogue's wife would have no health problems in the future, but at least
some evidence of the beneficiary's health was required. Asking a jury to ascertain
Hogue's wife's health, based on her age or from simply observing her in court, is not
sufficient.
Loss Of Inheritance Requires Evidence Specific To The Person To Prove The Value
Of The Estate.
[Part II C.] The jury awarded Hogue's wife $306,393 in loss of inheritance damages, the
figure advanced by the Hogues' expert, Dr. Self. Dr. Self testified that, in arriving at the
lost inheritance damages, he considered, inter alia, Hogue's savings accounts, stock
portfolio, equity in the marital home, and estimated future earnings based on past
earnings and work expectancy tables. Held: There was insufficient evidence to prove the
present value of what Hogue's estate would have been at his natural death While this
evidence goes a long way toward proving loss of inheritance damages, to the extent they
are recoverable, it, alone, is insufficient. In arriving at the present value of the decedent's
estate, the figures used in the analysis must be specific to the decedent. Some ofthe data
Dr. Self utilized in his economic calculation came from Hogue' s past work history,
earnings, and savings. However, Dr. Selfs work expectancy age of seventy years old,
from which he calculated Hogue's remaining years in the workforce, did not account for
the additional factors of Hogue's health after his operative procedure (had it been
successful), post-operative recuperation time, or likely future medical expenses. Instead,
Dr. Self based his calculations on an "average person," and he extracted a working
expectancy of seventy years old from the work expectancy table. Thus, Dr. Selfs
calculations improperly failed to account for the health of the decedent.

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 62

-

-

-

Interest Rate Change. Effective Date. "Subject To Appeal" Does Not Cover Cases
On Appeal At The Time Of The Amendment.
[Part II D]. House Bills 2415 and 4 lowered the floor interest rate to five- percent from
ten-percent, and the ceiling interest rate to fifteen-percent from twenty-percent, effective
June 20, 2003 and September 1, 2003. The amendments applied to final judgments that
are "signed or subject to appeal on or after the effective date of this Act." The trial court
signed the amended final judgment in this case on December 3, 2002, before either
effective date. However, Columbia Medical argues that the amendments apply, because
the case was "subject to appeal" on or after the amendments' effective dates. Held: The
plain language of House Bills 2415 and 4 is interpreted to apply section 304.003 of the
Texas Finance Code to judgments that became final after their effective dates. In doing
so, the plain and common meaning of the words "subject to appeal" is applied. Because
the appeal of the judgment in this case could not have been initiated after the effective
dates of the amendments, House Bills 2415 and 4 do not apply. In other words, the
amendment does not apply to cases pending upon appeal at the time of the passage of the
amendment.

************************************************************************
************************************************************************
SIGNFICANT DECISION
In re Poly-America, L.P., Ind., 262 S.W.3d 337 (Tex. 8/29/2008).
Justice O'Neill. Justice Brister filed a dissenting opinion. Justice Willett did not
participate in the decision.

-

-

Arbitration Agreement Containing Preclusion Of Worker's Compensation
Remedies Is Unconscionable.
This is an original mandamus proceeding. In this retaliatory-discharge case, the
employee's employment contract contains an arbitration agreement that requires the
employee to split arbitration costs up to a capped amount, limits discovery, eliminates
pumt1ve damages and reinstatement remedies available under the Workers'
Compensation Act, and imposes other conditions on the arbitration process. The trial
court granted Poly-American's motion to compel arbitration which, after a hearing, the
trial court granted. The court of appeals held that the arbitration agreement, as a whole,
was substantively unconscionable. 175 S.W.3d 315, 318. Held: Writ of mandamus will
issue. The trial court did not abuse its discretion, in allowing the arbitrator to assess the
unconscionability of the agreement's fee-splitting and discovery-limitation provisions, as
applied in the course of arbitration. However, the arbitration agreement's provisions
precluding remedies under the Workers' Compensation Act are substantively
unconscionable, and void under Texas law. Thus, the provisions of the parties' contract
that prohibit the award of punitive damages or reinstatement are invalid, as substantively
unconscionable and void, and thus inhibit effective vindication of the plaintiffs
retaliatory-discharge claim, in an arbitral forum. However, those provisions are not
integral to the parties' overall intended purpose to arbitrate their disputes and, pursuant to
the agreement's severability clause, are severable from the remainder of the arbitration
agreement, which is otherwise enforceable.

-

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 63

-

-

-

Arbitration. FAA Does Not Preempt Issue Of Whether Parties Have Entered Into A
Valid Agreement To Arbitrate.
Neither the strong presumption found in the Federal Arbitration Act, favoring arbitration,
nor federal preemption, applies in a state court's assessment of whether parties have
entered into a valid and enforceable agreement to arbitrate under state contract law. An
agreement to arbitrate is valid under the FAA, if it meets the requirements of the general
contract law of the applicable state. In determining the validity of an agreement to
arbitrate under the FAA, courts must first apply state law governing contract formation.
Under Texas law, as with any other contract, agreements to arbitrate are valid unless
grounds exist at law, or in equity, for revocation of the agreement. The burden of proving
such grounds - such as fraud, unconscionability, or voidness, under public policy falls on the party opposing the contract.
Mandamus Available To Review Order Compelling Arbitration.
Mandamus may be used to review orders compelling arbitration, although courts should
be hesitant about exercising this remedy.

-

-

-

-

-

Contracts Are Unconscionable When Grossly One-Sided.
Unconscionable contracts, however, whether relating to arbitration or not, are
unenforceable, under Texas law. A contract is unenforceable if, given the parties' general
commercial background, and the commercial needs of the particular trade or case, the
clause involved is so one-sided that it is unconscionable under the circumstances existing
when the parties made the contract. Unconscionability is to be determined in light of a
variety of factors, which aim to prevent oppression and unfair surprise; in general, a
contract will be found unconscionable if it is grossly one-sided. The determination that a
contract or term is, or is not, unconscionable is made in the light of its setting, purpose,
and effect. Relevant factors include weaknesses in the contracting process, like those
involved in more specific rules as to contractual capacity, fraud, and other invalidating
causes; the policy also overlaps with rules which render particular bargains or terms
unenforceable on grounds of public policy. Whether a contract is contrary to public
policy or unconscionable at the time it is formed is a question of law. Because a trial
court has no discretion to determine what the law is, or to apply the law incorrectly, it's
clear failure to properly analyze or apply the law of unconscionability constitutes an
abuse of discretion.
Arbitration Agreements Covering Statutory Claims Valid, So Long As Substantive
Rights And Remedies Are Not Waived.
An arbitration agreement, covering statutory claims, is valid so long as the arbitration
agreement does not waive the substantive rights and remedies, the statute affords, and the
arbitration procedures are fair, such that the employee may effectively vindicate his
statutory rights. Such contracts are not enforceable when a party is forced to forgo the
substantive rights afforded by the statute, as opposed to merely submitting to resolution
in an arbitral, rather than a judicial, forum. The FAA preempts state laws that
specifically disfavor arbitration.

Summaries of the opinions of the Texas Supreme Cou rt 3/28/08-3/27/09- By L. Wayne Scott Page 64

-

-

-

-

-

Arbitration Agreement May Cover Statutory Claims, If Substantive Rights Are Not
Waived.
An arbitration agreement, covering statutory claims, is valid, so long as the arbitration
agreement does not waive substantive rights and remedies of the statute and the
arbitration procedures are fair so that the employee may effectively vindicate his statutory
rights. By agreeing to arbitrate a statutory claim, a party does not forgo the substantive
rights afforded by the statute; it only submits to their resolution in an arbitral, rather than
a judicial, forum. In this case, Luna contends Poly-America acted with actual malice in
unlawfully discharging him, a claim for which the Workers' Compensation Act allows
punitive damages. Permitting an employer to contractually absolve itself of this statutory
remedy would undetmine the deterrent purpose of the Workers' Compensation Act's
anti-retaliation provisions.
Arbitration. Circumstances Under Which An Evidentiary Hearing May Be
Held On A Motion To Compel Arbitration.
Because the main benefits of arbitration lie in expedited and less expensive
disposition of a dispute and the legislature has mandated that a motion to compel
arbitration be decided summarily. An evidentiary hearing is not to be used in all
cases. When appropriate, the hearing at which a motion to compel arbitration is
decided would ordinarily involve application of the terms of the arbitration
agreement to undisputed facts, amenable to proof by affidavit. Thus, the trial
court may summarily decide whether to compel arbitration on the basis of
affidavits, pleadings, discovery, and stipulations. However, if the material facts
necessary to determine the issue are controverted, by an opposing affidavit or
otherwise admissible evidence, the trial court must conduct an evidentiary hearing
to determine the disputed material facts.

Arbitration Fee-Splitting Agreement Not Invalid Per Se. Evidence Is Required To
Show That Costs Would Deter Litigants.
Fee-splitting provisions that operate to prohibit an employee from fully and effectively
vindicating statutory rights are not enforceable. However, such agreements are not per se
unconscionable. Some evidence is required to show that a complaining party will likely
incur arbitration costs in such an amount as to deter enforcement of statutory rights in the
arbitral forum. If the fees and costs of the arbitral forum deter potential litigants, then that
forum is clearly not an effective, or even adequate, substitute for the judicial forum ... .
The burden of demonstrating that incurring such costs is likely under a given set of
circumstances rests, at least initially, with the party opposing arbitration. Here, there was
insufficient evidence that this was the case. At this stage of the proceedings, much of this
evidence is necessarily speculative, and thus counsels against a court's ex ante
interference with arbitration. Arbitration costs might be so high in a given case as to
preclude access to the forum. But the risk that a claimant will be saddled with prohibitive
costs is too speculative to justify the invalidation of an arbitration agreement. Luna, the
plaintiff, has not demonstrated that the ability to pursue his claim in the arbitral forum
hinges upon his payment of the estimated costs; to the contrary, depending upon the
circumstances;

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 65

Arbitrators May Adjust Fee Splitting Costs To Allow Full Vindication Of Statutory
Rights.
Just as litigants who demonstrate an inability to pay costs are allowed to proceed with
their claims in court, there is nothing that would prevent arbitrators from fairly adjusting
employee cost provisions when necessary to allow full vindication of statutory rights in
the arbitral forum.

-

-

-

-

Arbitration Limits On Discovery May, Or May Not, Be Enforceable. Issue Is One
For The Arbitrator.
Limitations upon discovery, contained in arbitration agreements may, or may not, be
enforceable. Such agreements will not be enforced when adequate evidence is presented
that a plaintiffs ability to present his or her claims in an arbitral forum is thereby
hindered . Where the underlying substantive right is not waivable, ex ante limitations on
discovery that unreasonably impede effective prosecution of such rights are
unenforceable. However, because the relevant inquiry depends upon the facts presented
in a given case and the particular discovery limitations' effect upon the relevant statutory
regime, it is doubtful that courts - assessing claims and discovery limitations before
arbitration begins - are in the best position to accurately determine which limits on
discovery will have such impermissible effect. The assessment of particular discovery
needs in a given case and, in turn, the enforceability of limitations thereon, is a
determination best suited to the arbitrator as the case unfolds. As with cost-sharing,
discovery limitations that prevent vindication of non-waivable rights or prove insufficient
to allow Luna a fair opportunity to present his claims, would be unconscionable and thus
not binding on the arbitrator. At this point in the proceedings, however, it cannot be
concluded that the evidence presented to the trial court compelled a finding that the
discovery limitations were per se unconscionable. Thus, the trial court did not abuse its
discretion.
Arbitration Agreement Prohibiting Application Of "Just" Or "Good Cause"
Standard Is Not Unconscionable.
The arbitration provision that prohibits the arbitrator's ability to apply a "just cause"' or
"good cause" standard to claims relating to Employee's claims, concerning his
employment or separation there from, is not substantively unconscionable. This
provision does not prohibit, in a retaliatory-discharge case, inquiry into whether the
employer had a valid, nondiscriminatory reason for firing the employee. This prohibition
does not operate as Luna asserts; rather, the prohibition simply emphasizes that the
contract relates to at-will employment. Thus, the prohibition prevents the arbitrator from
substituting a "good cause" requirement for the "at will" standard. The provision does
not, however, prohibit inquiry into whether Poly-America improperly terminated Luna in
retaliation for his filing of a workers' compensation claim. Because the provision merely
articulates an accepted rule of employment contracts, and does not restrict a necessary
inquiry into the motivations behind Poly-America's termination of Luna in this case, the
provision is not unconscionable.

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 66

-

-

-

-

-

-

-

Unconscionable Provision Of Contract May Be Severed.
An illegal or unconscionable provision of a contract may generally be severed, so long as

it does not constitute the essential purpose of the agreement. Whether or not the invalidity
of a particular provision affects the rest of the contract depends upon whether the
remaining provisions are independent or mutually dependent promises, which courts
detetmine by looking to the language of the contract itself. The relevant inquiry is
whether or not parties would have entered into the agreement, absent the unenforceable
provisions. Severance of illegal contract provisions has been allowed where the invalid
provisions were only a part of the many reciprocal promises in the agreement and did not
constitute the main or essential purpose of the agreement. Here there is a severability
clause, which indicates the agreement of the parties that unconscionable provisions be
excised where possible. Furthermore, it is clear by the contract's terms that the main
purpose of the agreement is for the parties to submit their disputes to an arbitral forum
rather than proceed in court. Excising the unconscionable provisions identified will not
defeat or undermine this purpose, which have been upheld in the context of agreements to
arbitrate employment disputes.

******** ****************************************************************
************************************************************************
State ofTexas v. Brown, 262 S.W.3d 365 (Tex. 8/29/2008).
Justice Johnson. Justice O'Neill filed an opinion concurring in part and dissenting in
part.
Condemnation. Attorney's Fees Not Authorized For Landowner When State
Amends the Condemnation Petition To Seek Differ ent Rights.
Under the facts [detailed in the opinion] in this case, the Property Code does not
authorize a landowner to recover fees and expenses from the State, when the State
amends its condemnation petition to seek property rights different from those it sought
before the special commissioners. Here TxDOT amended its pleadings to seek the same
land it sought to condemn in its presentation to the special commissioners, albeit with a
different configuration. The amended pleadings did not effect, either an actual dismissal
of its condemnation proceedings, or the functional equivalent of a dismissal. Because the
plain language of Tex. Prop. Code § 21.019 requires a condemnation proceeding to be
dismissed, before fees and expenses may be recovered from the condemning authority,
Brown is not entitled to recover fees and expenses.

************************************************************************
************************************************************************
SIGNIFICANT DECISION
Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Tex. 8/29/2008).
Justice Hecht delivered the opinion of the Court, in which Justice Brister, Justice Green,
Judge Christopher [sitting by commission], and Justice Pemberton[sitting by
commission] joined, and in all but Part II-B of which Chief Justice Jefferson, Justice
Medina, Justice Johnson, and Justice Willett joined. Justice Willett filed a concurring
Summaries of the opinions of the Texas S upreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 67

opm10n. Justice Johnson filed an opinion concurring in part and dissenting in part, in
which Chief Justice Jefferson joined, and in Part I of which Justice Medina joined. Justice
O'Neill and Justice Wainwright took no part in the decision of the case.

...

Damages For Drainage By Hydraulic Fracturing Are Precluded By The Rule Of
Capture.
[Part II B]. Damages for drainage by hydraulic fracturing are precluded by the rule of
capture. Of course, the rule of capture cannot be used to shield misconduct that is illegal,
malicious, reckless, or intended to harm another without commercial justification, should
such a case ever arise. But that did not occur in this case.
Standing. Lessors With Reversionary Interest May Sue For Subsurface Trespass.
Mineral lessors with a reversionary interest have standing to bring an action for
subsurface trespass, causing actual injury;

-

Four Reasons To Retain The Rule Of Capture.
[Part II B.] There are four reasons not to change the rule of capture, to allow one
property owner to sue another, for oil and gas drained by hydraulic fracturing, that
extends beyond lease lines. First, the law already affords the owner who claims drainage
full recourse, in the form of offset wells. If an offset well will not adequately protect
against drainage, the owner (or his operator) may offer to pool, and if the offer is
rejected, he may apply to the Railroad Commission for forced pooling. The Commission
may also regulate production to prevent drainage. Second, allowing recovery for the
value of gas drained by hydraulic fracturing usurps to courts and juries the lawful and
preferable authority of the Railroad Commission, to regulate oil and gas production.
Third, determining the value of oil and gas, drained by hydraulic fracturing, is the kind
of issue the litigation process is least equipped to handle. Fourth, the law of capture
should not be changed to apply differently to hydraulic fracturing because no one in the
industry appears to want or need the change.
Damages For Breach Of Implied Covenant Of Protection. Measure.
[Part III A] The correct measure of damages for breach of the implied covenant of
protection is the amount that will fully compensate, but not overcompensate, the lessor
for the breach - that is, the value of the royalty lost to the lessor, because of the lessee's
failure to act as a reasonably prudent operator.

-

-

Evidence. Memo Referring To "Illiterate Mexicans" Was Prejudicially Harmful.
[Part IV A]. The trial court abused its discretion by admitting in evidence a 1977 internal
memo regarding Share 13 title issues that referTed to Salinas's predecessors as "mostly
illiterate Mexicans", because under Rule 403 of the Texas Rules of Evidence, the
probative value was substantially outweighed by the danger of unfair prejudice. The
1977 memo added nothing material to the trial. It had no probative value. The memo was
used to inflame the all-Hispanic jury, as evidenced by their verdict, which included
damage findings exceeding Salinas's claims, findings that Coastal's actions were
malicious and criminal, and an assessment of $10 million punitive damages. The phrase,
"illiterate Mexicans" could certainly be read as derogatory and not merely an unfortunate
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 68

phrase included in describing the failure to maintain a clear record of title. In all,
reviewing the entire record, the verdict indicates that the effect of the memo was clearly
to inflame the jury.

************************************************************************
************************************************************************

-

-

Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Tex. 8/29/2008).
Justice Willett. Chief Justice Jefferson filed a dissenting opinion, in which Justice
Medina joined.
Waiver Of Reliance Precludes A Fraudulent Inducement Claim.
This is an original mandamus proceeding, in a commercial contract case. Held: The
unambiguous waiver-of-reliance provision precludes a fraudulent-inducement claim, as a
matter of law. Here, sophisticated parties, represented by counsel in an arm's-length
transaction, negotiated a settlement agreement that included clear and broad waiver-ofreliance and release-of-claims language. Because that agreement conclusively negates
reliance on representations made by either side, any fraudulent-inducement claim, lodged
here to avoid an arbitration provision, is contractually barred. The parties' contract will
be enforced, as written. Refusing to honor a settlement agreement- an agreement highly
favored by the law- under these facts would invite unfortunate consequences for
everyday business transactions and the efficient settlement of disputes. After-the-fact
protests of misrepresentation are easily lodged, and parties who contractually promise not
to rely on extra-contractual statements-more than that, promise that they have in fact
not relied upon such statements- should be held to their word. Parties should not sign
contracts, while crossing their fingers behind their backs.

Arbitration Agreement. Fraud Must Relate To Procurement To Avoid.
While an arbitration agreement procured by fraud is unenforceable, the party opposing
arbitration must show that the fraud relates to the arbitration provision specifically, not to
the broader contract in which it appears. If a trial court finds that the claim falls within
the scope of a valid arbitration agreement, the court has no discretion, but to compel
arbitration and stay its own proceedings.

-

-

-

************************************************************************
*** **** ************************ ********** ************* ******************
SIGNIFICANT DECISION
Ulico Cas. Co. v. Allied Pilots Ass 'n, 262 S.W.3d 773 (Tex. 8/27/2008).
Justice Johnson. Chief Justice Jefferson filed a concurring opinion.

Insurance. Claims-Made Policy Cannot Be Expanded By Waiver Or Estoppel, But
Insurer May Be Estopped To Deny Benefits, If The Insurer's Action Prejudices The
Insured.
Summaries of the opinions of the Texas Supreme Co urt 3/28/08-3/27/09 - By L. Wayne Scott Page 69

-

-

-

-

An insurer's contractual coverage, under a claims-made policy, cannot be expanded by
the doctrines of waiver and estoppel to cover a risk not otherwise within the policy
coverage: a suit against the insured that was not reported until after the policy expired.
However, if an insurer's actions prejudice its insured, the insurer may be estopped from
denying benefits that would be payable under its policy, as if the risk had been covered,
but the doctrines of waiver and estoppel cannot be used to re-write the contract of
insurance, and provide contractual coverage for risks not insured.
Jury Charge.

Error Not Waived By Submit ting Issues On Opponent's Theory,
When Opponent's Questions Were Considered Improper.
Ulico preserved error, as to jury questions three and four, which submitted waiver and
estoppel. Ulico did not waive or invite error as to waiver and estoppel by submitting
proposed questions, which the trial court included in the charge, since Ulico consistently
maintained that the issues would not support recovery, and were not supported by
evidence. They stated they submitted the issues only because APA's requested questions
were objectionable.
Insurance. Burdens On Issues Of Exclusion Or Limitation And Preconditions.
If an insurance contract covers certain risks, but the policy contains exclusions or
limitations of coverage, when the insured makes a claim for loss from a covered risk, the
insurer must assert any applicable exclusion or limitation to avoid liability. But, when a
policy covers risks for a certain time period, the time of the event allegedly triggering
coverage is a precondition to coverage, and is not considered a defensive matter to be
pleaded and proved by the insurer. The insurer has neither a "right", nor a burden, to
assert noncoverage of a risk or loss until the insured shows that the risk or loss is covered
by the terms of the policy. Once the insured does so, then it becomes incumbent on the
insurer- that is the insurer has the "right"- to assert any exclusions or limitations as
affirmative defenses.
Insurance. Lack Of Coverage Is Not Defeated By Assumption Of A Defense
Without A Valid Reservation Of Rights Or Non-Waiver Agreement.
The insurer does not bear the burden of showing that it does not have a policy in place to
cover a particular risk; the insured bears the burden to show that a policy is in force, and
that the risk comes within the policy's coverage. An insurer' s actions can result in it
being estopped from refusing to make its insured whole for prejudice the insured suffers
because the insurer assumed the insured's defense, but estoppel does not work to create a
new insurance contract that covers a risk not agreed to by the contracting parties. Thus
there is no "right" of noncoverage that is subject to being waived by the insurer, even by
assumption of the insured's defense with knowledge of facts indicating noncoverage and
without obtaining a valid reservation of rights or non-waiver agreement

*** ****** ************** *********************** ************** ************
************************************************************************
SIGNIFICANT DECISION
Zurich American Ins. Co. v. Nokia, Inc. 268 S.W.3d 487 (Tex. 2008).

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 70

Chief Justice Jefferson. Justice Hecht delivered a dissenting opinion, in which Justice
Brister joined.

-

-

-

-

-

-

Insurance For Bodily Injury Potentially Covers Biological Injury From Cell Phone
Use.
A wireless telephone manufacturer, sued in a number of putative class actions alleging
that radiation emitted by the phones caused biological injury, turned to its insurers, who
had agreed to defend claims seeking damages because of bodily injury. After initially
providing a defense, the insurers later sought a declaration that they had no duty to do so.
Held: The biological injuries alleged by the plaintiffs potentially state a claim for bodily
injuries under the policies, much like the subclinical injuries alleged by plaintiffs who
have been exposed to asbestos. The Court expresses no opinion on the merits of the
underlying claims.
I
Insurance. Claims For Redhibition And Breach Of Warranty Are Not
Covered By "Bodily Injury" Policy.
In the Naquin case, the plaintiffs filed a second amended petition, by deleting the product
liability claims, and asserting only Magnuson-Moss claims and Louisiana redhibition and
breach of warranty claims- none of which permit recovery of personal-injury damagesand by clarifying that the remaining allegations summarize the facts, but do not set forth
claims. Held: The second amended complaint unambiguously excludes coverage under
the policies. Plaintiffs have clearly alleged that their claims sound only in redhibition,
breach of warranty, and under the Magnuson-Moss Act. Even assuming that the Naquin
plaintiffs' redhibition, Magnuson-Moss, and warranty claims seek damages "because of
bodily injury," the policies exclude coverage for these claims, because the only damages
sought are economic ones, relating to the allegedly defective product. The policies'
business risk exclusions, while inapplicable to personal injury claims, preclude coverage
for economic loss claims based on product defects.

************************************* ** ** ************************* ******
*********************************************** ********* ***** ***********
Federal Ins. Co. v. Samsung Electronics America, 268 S.W.3d 506 (Tex. 8/29/2008).
Chief Justice Jefferson. Justice Hecht delivered a dissenting opinion, in which Justice
Brister joined.

Insurance For Bodily Injury Potentially Covers Biological Injury From Cell Phone
Use.
"Today, in Zurich American Insurance Co. v. Nokia,_ S.W.3d __, we hold that the
insurers have a duty to defend the very cases at issue here. Zurich is dispositive. For the
reasons stated therein, we conclude that Federal has a duty to defend Samsung in Pinney,
Farina, Gilliam, and Gimpelson, and we affirm the court of appeals' judgment."

************************************************************************
************************************************************************

Summaries of the opinions of the Texas Supreme Co urt 3/28/08-3/27/09 - By L. Wayne Scott Page 71

-

Trinity Universal Ins. Co. v. Cellular One Group, 268 S.W.3d 505 (Tex. 8/29/2008).
Chief Justice Jefferson. Justice Hecht delivered a dissenting opinion, in which Justice
Brister joined.

Insurance For Bodily Injury Potentially Covers Biological Injury From Cell Phone
Use.
"Today, in Zurich American Insurance Co. v. Nokia,_ S.W.3d _,we hold that the
insurers have a duty to defend the very cases at issue here. Zurich is dispositive. For the
reasons stated therein, we conclude that Trinity has a duty to defend Cellular One in
Farina, Gilliam, and Pinney, and we affirm the court of appeals' judgment."

*********** *************************************************************
************************************************************************

-

-

-

Brookshire Grocery Co. v. Goss, 262 S.W.3d 793 (Tex. 8/29/2008).
Per Curiam

No Duty To Warn Commonly Known Danger.
A grocery store employee was injured when she attempted to maneuver around a loaded
cart. A jury found that her employer's negligence proximately caused the incident, and
the court of appeals affirmed the trial comt's judgment. Held: Reversed and rendered
that the employee take nothing. Because any danger of stepping around such carts is
commonly known, the employer had no duty to warn employees of the risk, or to provide
specialized training to avoid that hazard.

****************************** ******************************************
************************************************************************
In re MN, 262 S.W.3d 799 (Tex. 8/29/2008).
Justice Johnson. Justice Willett filed a dissenting opinion.

-

-

Extension Of Time Allowed To File Statement Of Points In Termination Case.
The trial court terminated the parental rights of M.N.'s mother (Mandi), and appointed
the Department of Family and Protective Services as managing conservator. The
mother's statement of points for appeal, required by section 263.405 of the Texas Family
Code, was filed late, but the trial court granted an extension of time, and concluded that
the statement of points was filed timely. The court of appeals held that section 263.405
did not allow extensions of time for filing statements of points, concluded the mother did
not preserve error for review of her issues, and affirmed the trial court's judgment. 230
S.W.3d 248. Held: Reversed and remanded to the court of appeals. The provisions of
Texas Rule of Civil Procedure 5 apply to the question of whether the trial court may
extend the time for filing a statement of points for appeal under section 263.405. Thus the
trial court was authorized to grant the extension, the statement of points was timely filed,
and the mother's issues were preserved for appeal. A "timely-filed" statement of points
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 72

-

-

under section 263.405(i) includes a statement such as Mandi's that is filed beyond the
fifteen-day limit set by section 263.405(b), but within an extended time period granted by
the trial coUit, and before the thirty-day hearing, required by section 263.405(d).

-

Rule Making Power Of Supreme Court Explained.
Under TEX. CONST. art. V, § 31 (b), the Supreme Court is obligated to promulgate rules
of practice and procedure in civil cases. Rules promulgated by the Supreme Court repeal
conflicting laws, and parts of laws governing practice and procedure, so long as the laws
are non-substantive. The rules of civil procedure are intended to promote just, fair, and
equitable resolution of issues.

-

-

-

-

-

************************************************************************
************************************************************************
In re Kiberu, 262 S.W.3d 806 (Tex. 8/29/2008).
Per Curiam

Presuit Depositions In Health Care Claim. Court of Appeals To Reconsider.
This case may involve potential healthcare liability claims. The trial court authorized
presuit depositions, pursuant to Texas Rule of Civil Procedure 202. The court of appeals
denied mandamus relief. 237 S.W.3d 445. Held: Writ of mandamus will issue,
directing the court of appeals to withdraw its previous opinion and reconsider relators'
petition, in light of In re Jorden, 249 S.W.3d 416 (Tex. 2008).

************************************************************************
************************ ***************** *******************************
Bismar v. Morehead, 262 S.W.3d 805 (Tex. 8/29/2008).
Per Curiam

Interlocutory Appeal Allowed From Refusal To Dismiss A Heath Care Liability
Claim, On The Ground That The Expert Report Was Inadequate.
In this medical malpractice case, the plaintiffs served a curriculum vitae and expert
report, supporting their claim within 120 days of filing, as required by statute. Tex. Civ.
Prac. & Rem. Code§ 74.35l(a). The defendant, Dr. Bismar, moved for dismissal and
attorney's fees on the ground that the expert report was inadequate, but the trial coUit
granted the Moreheads 3 0 days to cure deficiencies in the report and then denied the
motion. Jd. § 74.351(b), (c). Dr. Bismar filed a timely interlocutory appeal with the
Second Court of Appeals, which dismissed for want of jurisdiction. _ S.W.3d _ .
Held: Reversed and remanded to the court of appeals, to consider the remaining
arguments, raised by the interlocutory appeaL As held in Lewis v. Funderburk, 253
S.W.3d 204 (Tex. 2008), Dr. Bismar's motion, seeking dismissal and fees, was a motion
pursuant to section 74.351(b), and thus reviewable by interlocutory appeal, when the trial
court denied it.

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 73

************************************************************************
************************************************************************

-

In re G.B., P.B., NB., and VR., 264 S.W.3d 742 (Tex. 8/29/2008).
Per Curiam.

-

Family Law. Court Does Not Pass On Constitutionality Of Texas Family Code
Section 263.405(j).
"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."

-

**************** ***** ** ****** *********** ***** ** **************** **** ** ***
************************************************************************
SIGNIFICANT DECISION
In re Baylor Medical Center at Garland,--- S.W.3d ----, 2008 WL 3991132, 51 Tex.
Sup. Ct. J. 1334 (8/29/2008).
Brister. Justice Johnson filed a dissenting opinion.

-

New Judge Not Subject To Mandamus For What Former Judge did.
Mandamus will not issue against a new judge for what a former one did.
Mandamus Abated To Allow Successor Judge To Reconsider New Trial Order Of
Predecessor.
In this medical malpractice case, the jury found for the defendant hospital, but the trial
judge granted a new trial, allegedly based on juror affidavits, prohibited by the rules. As
a new judge now presides over the trial court, Tex. R. App. P. 7.2 requires abatement of
this original proceeding, to allow the successor to reconsider the order. The new judge,
upon reconsideration, may "ungrant" the new trial.
New Trial Grant Can Be Reconsidered, As Long As Case Is Pending.
A trial court may reconsider a new trial order, as long as a case is still pending. Porter v.
Vick, 888 S.W.2d 789, 789 (Tex. 1994) (" [A]ny order vacating an order granting a new
trial which was signed outside the court's period of plenary power over the original
judgment is void."), is ovenuled.

-

-

******** ** ** ** ************** ********************************************
************************************************************************
SIGNIFICANT DECISION
Kerlin v. Sauceda, 263 S.W.3d 920 (Tex. 8/29/2008).
Justice O'Neill. Justice Brister filed a concurring opinion, in which Justice Hecht, Justice
Medina, and Justice Willett joined.

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 74

-

-

-

-

Limitations Not Tolled For A Nonresident Doing Business In Texas.
In 1829, the State of Tamaulipas, Mexico, recognized the claims of Padre Nicolas Balli
and his nephew, Juan Jose Balli, to Padre Island. Since then, the island's ownership has
been the subject of numerous legal disputes, including the present one. In this case, more
than 275 descendants of Juan Jose Balli sued Gilbert Kerlin, individually and as trustee,
as well as his wholly owned companies, Windward Oil & Gas Corp. and PI Corp.,
asserting that Kerlin had defrauded them of oil and gas royalties and other interests in
Padre Island. Kerlin plead limitations. The trial court rendered judgment in the Balli'
favor for unpaid royalties, mineral lease rentals, and prejudgment interest, and attorneys
fees. The trial court imposed a constructive trust on an undivided 37.5% mineral interest,
but denied the Ballis' request for an equitable accounting. The court of appeals affirmed
except for the trial court's ruling denying an accounting, which it reversed and remanded
to the trial court for further proceedings. 164 S.W.3d at 903.Held: Reversed and
rendered. The Ballis' claims were not subject to statutory tolling and, accordingly, are
time-barred. The jury found that Kerlin was receiving royalty payments that rightfully
belonged to the Ballis from January 1, 1966, until February 8, 1991, and that he
continued to deceive the Ballis about the Havre v. Dunn settlement from its execution
until the same date. Thus, whether or not Kerlin was constructively present in Texas,
because he was subject to service of process via the secretary of state, he was present by
doing business in this state as the statute defines that term. Because Kerlin was doing
business here, and was thus not absent from Texas, the tolling statute does not apply, and
limitations bars the Ballis' claims. Because the Ballis' claims are time barred, Kerlin's
other arguments need not be addressed.

Limitations. Fraudulent Concealment May Toll Limitations, But Not When Wrong
Could Have Been Discovered.
A defendant's fraudulent concealment of wrongdoing may toll the running of limitations.
Fraudulent concealment will not, however, bar limitations when the plaintiff discovers
the wrong, or could have discovered it through the exercise of reasonable diligence. The
Plaintiffs'-Ballis were on notice that the warranty deeds their predecessors executed
contained a royalty reservation, yet they never received any royalties. As a matter of law,
the Ballis could have discovered the existence of any claims before limitations expired
through the exercise of reasonable diligence. Consequently, unless statutory tolling
applies, their claims are time barred.
Limitations Not Tolled While Nonresident Has Sufficient Contacts For Long-Arm
Service.
The general long-arm statute, Tex. Civ. Prac. & Rem. Code § 17.044(b), provides that
"the secretary of state is an agent for service of process on a nonresident who engages in
business in this state . . . in any proceeding that arises out of the business done in this
state . . ..". In addition to providing for substituted service, the general long-arm statute
specifically addresses a nonresident defendant's presence within the state's territorial
limits for purposes of personal jurisdiction; specifically, the statute provides that a
nonresident does business "in this state" if, among other acts, the nonresident contracts
with a Texas resident and either party is to perform in whole or in part here, or the
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 75

-

-

nonresident commits a tort in whole or in part in this state. But if a nonresident's contacts
with the state are sufficient to afford personal jurisdiction under the general long-arm
statute, as it is undisputed Kerlin's were, then there is no reason why a nonresident's
"presence" in this state would not be established for purposes of the tolling statute.

****************************************************** ******************
************************************************************************
Trammell Crow Center Texas, Ltd. v. Gutierrez, 267 S.W.3d 9 (Tex. 8/29/2008).
Justice Willett. Chief Justice Jefferson filed a concurring opinion, in which Justice
Hecht, Justice Brister, and Justice Johnson joined.

-

-

-

-

-

Landowner Could Not Have Foreseen Murder Of Patron Of Movie Theater, And
Owed Not Duty To The Patron.
Luis Gutierrez was shot at the Quarry Market, a shopping mall, as he left a movie theatre.
He later died. Plaintiffs filed this action against Trammell Crow, the property manager of
the Quarry Market, alleging that that Trammell Crow negligently failed to provide
adequate security at the mall. The trial court entered a judgment for the plaintiffs on the
jury's verdict. The court of appeals affirmed. 220 S.W.3d 33. Held: The judgment of the
court of appeals is reversed and rendered that Plaintiffs take nothing. Under the evidence
[detailed in the opinion], Trammell Crow could not have reasonably foreseen or
prevented the crime, and thus owed no duty in this case. The foreseeability of an
unreasonable risk of criminal conduct is a prerequisite to imposing a duty of care;
otherwise, a person who controls property would be subject to a universal duty to protect
against third-party criminal conduct. This is not the law: A landowner is not the insurer of
crime victims. Considering the five factors (proximity, publicity, recency, frequency, and
similarity) together, the Court cannot conclude that Luis's murder was foreseeable.
Trammell Crow had knowledge of violent crimes that were committed at the Quarry
Market within a reasonable time prior to Luis's death. Because the attack on Luis was so
extraordinarily unlike any crime previously committed at the Quarry Market, Trammell
Crow could not have reasonably foreseen or prevented the crime, and thus owed no duty
in this case. Therefore, without reaching the issue of causation.
Foreseeability Of Criminal Conduct. Consider Five Factors.
To determine whether the risk of criminal conduct is foreseeable, a court weighs the
evidence of prior crimes using five factors: proximity, publicity, recency, frequency, and
similarity. The evidence is not considered in hindsight but rather in light of what the
premises owner knew or should have known before the criminal act occurred.

************************************ ************************************
************************************************************************
Davis v. Fisk Electric Co., 268 S.W.3d 508 (Tex. 9/26/2008).
Opinion By: Chief Justice Jefferson. JUSTICE BRISTER delivered a concurring opinion, in
which JUSTICE MEDINA joined as to Part Ill.

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 76

-

-

Peremptory Strikes. Race Explains Strikes Better Than Any Other Reason.
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.
Held: Reversed and remanded. Peremptory challenges exercised for an improper reason,
like race or gender, are unconstitutional.
After examining the totality of the
circumstances, it appears that race explains the party's strikes of Daigle and Pickett better
than any other reason, and the trial court abused its discretion in failing to sustain Davis's
Batson challenge.
Preemptory Strikes. Suggested Factors In Determining Whether Challenges
Violated The Equal Protection Clause.
The U. S. Supreme Court has suggested five non-exclusive factors are to be examined in
determining whether the use of preemptory challenges violate the Equal Protection
Clause. Statistical Disparity. The first involves an analysis of the statistical data
pertaining to the party's peremptory strikes. Comparative Juror Analysis. Second, a
court is to conduct a comparative juror analysis, that is a side-by-side comparison of
some black venire panelists who were struck and white panelists who were allowed to
serve. If the proffered reason for striking a black panelist applies just as well to an
otherwise-similar nonblack who is permitted to serve, that is evidence tending to prove
purposeful discrimination to be considered at Batson's third step. A Batson challenge
does not call for a mere exercise in thinking up any rational basis. If the stated reason
does not hold up, its pretextual significance does not fade because a trial judge, or an
appeals court, can imagine a reason that might not have been shown up as false. Use of
jury shuffle. A third factor to be considered is the use of the jury shuffle, a practice that
could indicate decisions probably based on race. Contrasting Venire Questions. A
fourth factor is the contrasting voir dire questions posed respectively to black and
nonblack panel members. History of Exclusion. The fifth and final factor is the party's
history of systematically excluding blacks from juries.

************************************************************************
************************************************************* ***********
************************************************************************
************************************************************************
Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d 867 (Tex. 9/26/2008).
Opinion By: Justice Brister

Evidence Of Wealth Is Inadmissible.
Neither a plaintiffs poverty nor a defendant's wealth can help a jury decide whose
negligence caused an accident. Even though punitive damages were not at issue in this
collision case, the plaintiffs tendered evidence that the defendant's annual revenues were
$1.9 billion. Held: Reversed and remanded. The trial comt abused its discretion in
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 77

-

allowing admission of RelianceOs gross annual sales. This evidence was inadmissible,
and the record reflects that it probably caused an improper verdict.

-

-

-

Harmless Error. Factors To Consider In Evaluating Harm.
Erroneous admission of evidence is harmless unless the error probably (though not
necessarily) caused rendition of an improper judgment. While it is impossibility to
prescribing a specific test for harmless-error review, the standard is more a matter of
judgment than precise measurement. A reviewing court must evaluate the whole case
from voir dire to closing argument, considering the state of the evidence, the strength and
weakness of the case, and the verdict. Court should consider the effect, the evidence,
the emphasis, and the effort. A. The Effect. The starting point for harmless-error
review is the judgment. Here, several parts of the verdict on which the judgment was
based show that something beyond the relevant evidence was guiding the jury's
deliberations. B. The Evidence. The reviewing court must look at the role the evidence
played in the context of the trial. Here, given that the trial focused primarily on setting
damage amounts as to which jurors have few clear guideposts, it is probable that proof of
Defendant-RelianceOs huge revenues played a crucial role on the key issue at trial. C.
The Emphasis. In harmless-error review, courts also look to efforts by counsel to
emphasize the erroneous evidence. Here, the fact that the evidence was mentioned only
once is not controlling. Evidence of Reliance's wealth was buried in the larger context
of testimony that concerned the size of the Reliance Steel operation, the number of
employees, the number of divisions, and so forth. While plaintiffs' counsel mentioned
the gross revenues figures only once, he mentioned Reliance's large size from voir dire to
closing argument. D. The Effort. In harmless-error review, courts also consider whether
admission of improper evidence was calculated or inadvertent. Here admission was no
accident. Proof of Reliance's income was not offered in the heat of the moment, but as a
deposition excerpt prepared in advance and offered outside the presence of the jury,
giving the plaintiffs time to overcome the defendants' objection and the trial court's
reservations. Intentionally leading the trial court into error does not always make the enor
harmful. But when issues like race, religion, gender, and wealth are injected into a case
unnecessarily, there is the potential for damage not just to a litigant but to the civil justice
system. Considering all of these factors, the evidence of the defendant's wealth was
harmful.

********************************************** ********* *****************
************************************************************************

-

Martinez-Partido v. Methodist Specialty and Transplant Hosp., 267 S.W.3d 881 (Tex.
9/26/2008).
Opinion By: Per Curiam

Health Care Claim. Reversal To Determine Whether One Thirty-Day Extension
Should Be Granted.
In this health care liability case, plaintiff Mruiinez-Partido served expert reports within
120 days of filing suit, as required by Tex. Civ. Prac. & Rem. Code § 74.35 1(a). The
Defendants objected to the sufficiency of those reports. Prior to a hearing on the reports'
Summaries of th e opinions of the Texas Supreme Co urt 3/28/08-3/27/09 - By L. Wayne Scott Page 78

-

-

sufficiency, Martinez-Partido requested a thirty-day extension under section 74.351(c) to
cure any deficiencies in the reports that the trial court might find. The trial court found
the reports adequate, and the defendants appealed. The court of appeals found the reports
deficient and, without considering Martinez-Partido's extension request, reversed and
rendered judgment in the defendants' favor. Held: The judgment of the comt of appeals
is vacated, and the case is remanded to the trial court. Martinez-Partido is entitled to
have the trial court decide whether he should receive an extension under section
74.351(c).

Appellate Review. Remand Lesser Included Relief Of Affirmance.
Although Martinez-Partido did not expressly request remand in the court of appeals, he
did argue that the trial court's finding was correct and should be affirmed. A pruty
seeking affirmance need not request the lesser included relief of remand.

************************************************************************
************************************************************************
Adams v. YMCA ofSan Antonio, 265 S.W.3d 915 (Tex. 9/26/2008).
Opinion By: Per Curiam

-

-

-

Damages For Child Abuse. Past Damages Not Required For Future Mental
Anguish Damages.
Nine-year-old A.A. was sexually abused by his counselor, while at summer camp,
leading to this suit against the YMCA for negligently hiring, retaining, and supervising
the perpetrator. The jury found that the abuse caused the child serious mental injury and
awarded future, but no past, mental anguish damages. The trial court rendered judgment
on the jury's award. The court of appeals reversed, however, concluding no evidence
supported the jury's finding of future mental anguish. 220 S.W.3d at 1, 3. Held: The
judgment of the court of appeals is reversed. Legally sufficient evidence supports the
jury's finding. The jury's failure to award damages for A.A.'s past mental anguish does
not mean that they found no injury to A.A. in the past; to the contrary, the jury
specifically found that Trimble's conduct "cause[d] serious mental impairment or injury
[to A.A.]." The jury's allocation of damages was entirely consistent with the testimony
presented that A.A. was coping well by repressing his intense distress, which would
inevitably surface in the future. There is a consensus among experts that child victims of
sexual abuse frequently repress and suppress memories and emotions associated with the
event until their adult years. The evidence of A.A.'s emotional outbursts and phobic
anxiety, coupled with the expert testimony, supports a reasonable inference that an
"enormous" reaction is likely when the "vault" of A.A.'s memory opens. Texas law
permits jurors to make such a determination, and the trial court did not err in rendering
judgment on their verdict.

-

************************************************************************
********************** ************ ************************* ******* ******

-

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 79

David J Sacks, P.C. v. Haden, 266 S.W.3d 447 (Tex. 9/26/2008).
Opinion By: Per Curiam

-

**
..............................•..••••............•.......................

-

Fee Agreement Contract For Hourly Rate May Not Be Modified By Oral Capping
Agreement.
A written attorney's fee agreement that specifies only hourly fee rates may not be
modified by evidence of an oral capping agreement. Parol evidence cannot modify a
written agreement absent ambiguity. From the Supreme Court website: "The Court
changes the disposition to remand to the court of appeals to consider other issues in the
first paragraph and makes changes to reflect that in the last paragraph."

-

************************************ ************************************
************************************************************************
State ofTexas v. Dawmar Partners, Ltd., 267 S.W.3d 875,51 Tex. Sup. Ct. J. 1447 (Tex.
9/26/2009).
Opinion By: Per Curiam

Condemnation. Restrictions On Access, Changing Highest And Best Use, Does Not
Justify Severance Damages.
This is a condemnation case. Landowners are not entitled to severance damages,
resulting from permanent denial of direct access to the highway, if the restrictions on
access changed the "highest and best use" of the property from commercial to residential,
because they have not suffered a material and substantial impairment of access.
Diminished value resulting from impaired access, is compensable only when access is
materially and substantially impaired.
Whether access has been materially and
substantially impaired is a threshold question of law reviewed de novo. This is not to say
that a change in the highest and best use of property is irrelevant to the amount of
damages, but the threshold legal issue that must be resolved before the jury can properly
consider evidence of an alleged change in value is whether there has been a material and
substantial impairment of access, a matter to which we now turn.

-

Condemnation. Restriction On Access Not Compensable If Only Due To Increased
Circuity Of Travel.
The restrictions on access, in this case, have resulted only in increased circuity of travel,
which this Court has repeatedly held is not compensable. Access is not materially and
substantially impaired merely because other access points are significantly less
convenient.

****** ***************************** *************************************
************************************************************************
Kerlin v. Sausceda, 263 S.W.3d 920 (Tex.l0/10/2008).

Limitations Not Tolled For A Nonresident Doing Business In Texas.
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 80

-

-

-

From the Texas Supreme Court Website:
The Court makes these wording changes at the end of the last complete paragraph on
page 12 (PDF version):
"But if a nonresident~ is amenable to service of process under the longarm statute and
has contacts with the state--are sufficient to afford personal jurisdiction under the general
longarm statute, as was the case with Kerlinit is undisputed Kerlin's were, then we can
discern no reason why a nonresident' s "presence" in this state would not be established
for purposes of the tolling statute"

************************************************************************
************************************************ ******** ************** **

-

-

-

SIGNIFICANT DECISION
DiGiuseppe v. Lawler, 269 S. W .3d 588 (Tex. 10117/2008). ·
Justice Waldrop (sitting for Justice Medina by commission ofHon. Rick Perry, Governor
ofTexas, pursuant to Section 22.005 of the Texas Governrnent Code). Justice Green
filed a dissenting opinion, in which Chief Justice Jefferson, Justice O'Neill, and Justice
Johnson joined. Justice Medina took no part in the decision of the case.
Specific Performance Right Under Contract Does Not Alter Need For Finding On
Ability Of Party To Perform.
This case involves a claim for specific performance of a real estate purchase contract.
The purchase contract limited the remedies available to the parties in the event of a
breach. Lawler's "sole and exclusive" remedy was to retain the earnest money as
liquidated damages, and he expressly waived any right to claim any other damages or
specific performance from DiGiuseppe. In the event Lawler defaulted in performing his
obligations under the contract for any reason other than DiGiuseppe's default or a proper
termination of the contract under its provisions, DiGiuseppe could choose between two
remedies: ( 1) terminate the contract and receive a full and immediate refund of the
earnest money, or (2) "seek to enforce" specific performance of the contract. DiGiuseppe
also expressly waived any right to claim damages. The only questions submitted to the
jury relating to the breach of the purchase contract were: (1) Did Lawler fail to comply
with the contract? (2) Did DiGiuseppe fail to comply with the contract? The jury
answered "Yes" as to Lawler and "No" as to DiGiuseppe. Neither party requested a
question as to whether DiGiuseppe was ready, willing, and able to perform at the relevant
time. Nor did either party object to the omission of such a question The trial court
rendered judgment in favor of the buyer and ordered specific performance. The court of
appeals reversed on the basis that the buyer did not obtain a finding of fact or prove that
he was ready, willing, and able to perform, and found that he waived the right to the
alternative claim for refund of the earnest money by failing to file his own notice of
appeal. Held: Affirmed with respect to the claim for specific performance; reversed and
remanded with respect to the finding of waiver on the alternative claim for refund of
earnest money. An essential element in obtaining the equitable remedy of specific
performance is that the party seeking such relief must plead and prove he was ready,
willing, and able to timely perform his obligations under the contract. Merely pleading an
offer to perfmm at the time the lawsuit is filed does not satisfy or replaces the need to

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 81

-

-

demonstrate the ability to perform at the relevant time. The remedy provision at issue
here does not entitle DiGiuseppe to obtain specific performance merely upon a showing
of a breach or default by Lawler. The remedy provision in the purchase contract neither
waives nor negates DiGiuseppe's obligation to plead and prove all essential elements
under Texas common law for obtaining specific performance, including that he was and
is ready, willing, and able to perform under the contract.
Specific Performance Requires Pleading & Proof That Party Was Able To Perform
Contract.
An essential element in obtaining the equitable remedy of specific performance is that the
party seeking such relief must plead and prove he was ready, willing, and able to timely
perform his obligations under the contract. A party must show that he has complied with
his obligations under the contract to be entitled to specific performance. A corollary to
this rule is that when a defendant refuses to perform or repudiates a contract, the plaintiff
may be excused from actually tendering his or her performance to the repudiating party
before filing suit for specific performance. In such a circumstance, a plaintiff seeking
specific performance is excused from tendering performance pre-suit, and may simply
plead that performance would have been tendered but for the defendant's breach or
repudiation.
Jury Available In Equitable Proceedings.

When contested fact issues must be resolved before a court can determine the
expediency, necessity, or propriety of equitable relief, a party is entitled to have a jury
resolve the disputed fact issues.

-

-

-

Specific Performance Right Under Contract Does Not Alter Need For Finding On
Ability Of Party To Perform.
The remedy provision. at issue here, does not entitle DiGiuseppe to obtain specific
performance merely upon a showing of a breach or default by Lawler. The provision in
the purchase contract limiting DiGiuseppe's remedies, in the event of a default by
Lawler, neither waives nor negates DiGiuseppe's obligation to plead and prove all
essential elements under Texas common law for obtaining specific performance,
including that he was and is ready, willing, and able to perform under the contract.
Jury Charge. A Deemed Finding Is Not Possible Unless The Omitted Issue Is

Necessarily Referable To A Submitted Issue.
If no element of an independent ground of recovery that is not conclusively established
by the evidence is included in the charge without request or objection, the ground of
recovery is waived. Here, DiGiuseppe did not conclusively establish his claim for
specific performance from an evidentiary standpoint. Under Tex. R. Civ. P. 279, if at
least one element of an independent ground of recovery was submitted to the jury and is
"necessarily referable" to that ground of recovery, an omitted finding that is supported by
some evidence shall be deemed found by the court in such a manner as to support the
judgment. DiGiuseppe's compliance with the contract is neither essential nor necessarily
referable to his request for specific performance. DiGiuseppe's tender of performance
under the contract could have been excused due to Lawler's breach without altering in

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 82

-

any way DiGiuseppe's obligation to prove that he was and is ready, willing, and able to
perform. Whether DiGiuseppe complied with the contract or was excused from
complying with the contract, he would still be required to prove that he was ready,
willing, and able to perform to obtain specific performance. Therefore, the question as to
his compliance with the contract, without more, is not "necessarily referable" to specific
performance as a ground of recovery.

-

-

Purpose Of "Necessarily Referable" Requirement Is To Give Opportunity To
Correct.
The purpose of the "necessarily referable" requirement in Rule 279 is to give
parties, against whom issues are to be deemed, fair notice of a partial submission,
so that they have an opportunity to object to the charge or request submission of
the missing issues to the ground of recovery or defense. Once a party is on notice
of the independent ground of recovery or defense due to the existence of an issue
"necessarily referable" thereto, if that party fails to object or request submission
of the missing issues, he cannot be heard to complain on appeal, as he is said to
have consented to the court's findings on the missing issues.

Notice Of Appeal Not Required When Litigant Obtains A Favorable Judgment And
Desires To Raise An Alternate Ground Of Recovery On Appeal.
Since the judgment, in favor of DiGiuseppe, for specific performance is reversed, he is
allowed to seek recovery on his alternative remedy under the purchase contract of
termination: recovery of the earnest money he paid. The court of appeals held that
DiGiuseppe waived this option by failing to file a notice of appeal on the issue.
However, a litigant who has obtained a favorable judgment, and has no reason to
complain in the trial court, is not required to raise an issue regarding an alternate ground
of recovery until an appellate court reverses the judgment. Consequently, DiGiuseppe
was not required to raise his alternate theory of recovery until the judgment in his favor
about which he had no complaint was reversed

************************************************************************
************************************************************************

-

SIGNIFICANT DECISION
SSP Partners v. Gladstrong Investments (USA) Corp., --- S.W.3d ----,2008 WL
4891733, 52 Tex. Sup. Ct. J. 95 (11114/2008).
Justice Hecht
Products Liability Seller Of Defective Product Is Not E ntitled To Indemnity From
Upstream Supplier, Unless Supplier At Fault.
In Texas, the seller of a defective product is subject to strict liability for damages the
product causes, even though the defect was not his fault, but he is generally entitled to
indemnity from the manufacturer by statute and by common law. However, by statute,
he is not entitled to indemnity from an upstream supplier other than the manufacturer,

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 83

-

-

-

without showing that the upstream supplier was at fault. The same is true under the
common law.

-

Corporations Are Not Liable For Each Other's Obligations Because They Are Part
Of A Single Business Enterprise.
Corporations cannot be held liable for each other's obligations, merely because they are
part of a single business enterprise. The limitation on liability afforded by the corporate
structure can be ignored only when the corporate form has been used as part of a
basically unfair device to achieve an inequitable result.

-

-

-

-

Products Liability. Seller Of Defective Product May Be Liable, Along With
Manufacturer.
Although a seller of a defective and unreasonably dangerous product may be liable, along
with the manufacturer, for physical harm caused to the consumer, chapter 82 of the Texas
Civil Practice and Remedies Code requires the manufacturer to indemnify an innocent
seller against losses arising out of a products liability action. Section 82.002(a) imposes
that obligation only on manufacturers, not on other sellers. A manufacturer is defined by
section 82.001(4) as "a designer, formulator, constructor, rebuilder, fabricator, producer,
compounder, processor, or assembler" of a product, while a seller is defined by section
82.001(3) as someone who commercially distributes a product. Thus, all manufacturers
are also sellers, but not all sellers are manufacturers.

************************************************************************
*** *** ***** ***** *** ****** ************************* ***************** *****
Kerlin v. Arias, --- S.W.3d ----, 2008 WL 4891729 (Tex.), 52 Tex. Sup. Ct. J. 103
{Tex.l1/14/2008).
Per Curiam

Summary Judgment Affidavit Must Reflect Personal Knowledge Of The Affiant.
This is a suit claiming title to a substantial part of Padre Island, brought by the heirs Jesus
Balli, the nephew of Juan Jose Balli. The heirs seek to set aside an 1847 deed (and thus
all sales in the ensuing 161 years), on the basis of fraud. The trial court granted summary
judgment against the heirs, but the court of appeals reversed. Held: Reversed and
rendered. The only evidence of fraud in 1847 is an affidavit by one of the current heirs
- who could not possibly have personal knowledge of those events. Summary judgment
affidavits "shall be made on personal knowledge, shall set forth such facts as would be
admissible in evidence, and shall show affirmatively that the affiant is competent to
testify to the matters stated therein." TEX. R. CIV. P. 166a(f). This affidavit fails on each
count. To have probative value, an affiant must swear that the facts presented in the
affidavit reflect his personal knowledge. An affiant's belief about the facts is legally
insufficient.

************************************************************************
*************************** ****************** ***************************
Perry v. Cohen, 272 S.W.3d 585 (Tex. 11/14/2008).

-

Su mmaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 84

-

-

-

-

-

Per Curiam

Preservation Of Error By Challenging Merits Of Order In Body Of Appellate Brief.
The trial court dismissed a suit with prejudice after determining that the plaintiffs'
amended pleadings failed to comply with an order granting defendants' special
exceptions. The court of appeals held that the plaintiffs waived error as to the merits of
the order sustaining special exceptions because they did not separately challenge the
order on appeal. Held: The plaintiffs preserved error by challenging the merits of the
special exceptions order in the body of their appellate brief, even though they did not
separately and specifically challenge the order in their notice of appeal or in the issues of
their appellate brief. Disposing of appeals for harmless procedural defects is disfavored.
That policy is reflected in Texas Rule of Appellate Procedure 3 8.1(f) which provides that
the statement of an issue will be treated as covering every subsidiary question that is
fairly included. Appellate briefs are to be construed reasonably, yet liberally, so that the
right to appellate review is not lost by waiver. Simply stated, appellate courts should
reach the merits of an appeal whenever reasonably possible.

****************** **************************** *********** ******** *******
************************************************************************
SIGNIFICANT DECISION
In re Transcontinental Realty Investors, Inc., 27 1 S.W.3d 270 (Tex. 11114/2008).
Per Curiam

Venue As To Corporation May Be Established By Corporation's Residence.
This is an original mandamus proceeding. Held: When the Legislature amended the
permissive-venue statute to distinguish between a natural person's "residence" and a
business's "principal office," it did not intend to eliminate corporations and other legal
entities from all statutes that refer to a place where one "resides." The registered office
and agent of a corporation, required by the Business Corporation Act, constitute a
statutory place of residence of the corporation.

Note: North Texas Municipal Water District filed this suit in Kaufman County to
condemn a 30-foot easement for a pipeline across land owned by Transcontinental
Realty Investors, Inc. The land is located partly in Dallas County and partly in
Kaufman County. Section 21.013 ofthe Property Code requires condemnation
suits to be brought where the owner resides if the property is at least partly in that
county. Claiming to reside in Dallas County, Transcontinental moved to transfer
venue there. Transcontinental's principal place of business is in Dallas County. It
has no offices in Kaufman County. The District's petition requested service on
Transcontinental's registered agent in Dallas County. Under arts. 2.09 and 8.08 of
the Texas Business Corporation Act, that must also be Transcontinental's
registered office. The trial court denied the motion, and the court of appeals
denied mandamus relief. Held: Writ of a mandamus will issue. Section 2 1.013
is a mandatory venue statute, so it is enforceable by mandamus.

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scot t Page 85

-

************************************************************************
**** ***** **************************** *** ********************************
In re Union Carbide Corp., 273 S. W.3d 152 (Tex. 1111 4/2008).
Per Curiam

-

-

-

Intervention. Motion To Strike Intervention Should Be Considered Before
Considering Severance.
This is an original mandamus proceeding. In this case, family members who survived
Hall intervened in a pending personal injury suit filed by Moffett. Union Carbide, a
defendant in both the pending suit and the intervention, filed a motion to strike the
intervention. Instead of ruling on that motion, the trial court severed the Halls' claims
into a new suit that then remained pending in the same court. Held: The trial comt
abused its discretion by failing to rule on Union Carbide's motion to strike before
considering whether to sever the intervention. Permissive joinder and intervention are
authorized and permitted by separate rules, and the rules provide different processes for
addressing the different situations. Because interventions by uninvited participants have
potential for disrupting pending suits, trial courts should rule on motions to strike
interventions before considering other matters such as severance.
Intervenors Must Show A Justiciable Interest In The Pending Suit.
Texas Rule of Civil Procedure 60 provides that "[a]ny party may intervene by filing a
pleading subject to being stricken out by the court for sufficient cause on the motion of
any party." The rule authorizes a party with a justiciable interest in a pending suit to
intervene in the suit as a matter of right. Because intervention is allowed as a matter of
right, the "justiciable interest" requirement is of paramount importance: it defines the
category of non-parties who may, without consultation with or permission from the
original parties or the court, interject their interests into a pending suit to which the
intervenors have not been invited. Thus, the "justiciable interest" requirement protects
pending cases from having interlopers disrupt the proceedings. The parties to the pending
case may protect themselves from the intervention by filing a motion to strike. If any
party to the pending suit moves to strike the intervention, the intervenors have the burden
to show a justiciable interest in the pending suit. To constitute a justiciable interest, the
intervenor' s interest must be such that if the original action had never been commenced,
and he had first brought it as the sole plaintiff, he would have been entitled to recover in
his own name to the extent of at least of a part of the relief sought" in the original suit. In
other words, a party may intervene if the intervenor could have "brought the pending
action, or any part thereof, in his own name.
Mandamus Is Of Benefit When Issues Relate To Random Assignment Of Case.
There is significant benefit from mandamus relief in regard to the random-assignment-ofcases question. Random assignment of cases is designed to prevent forum-shopping.
Practices that subvert random assignment procedures breed "disrespect for and [threaten]
the integrity of our judicial system."

-

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 86

************************************************************************
********************************************** *************** ***********

-

In re Buster,--- S.W.3d ----, 2008 WL 4891764, 52 Tex. Sup. Ct. J. 112 (Tex.
11/14/2008).
Per Curiam

-

Medical Malpractice. Time For Filing Expert Report May Be Extended Where A

-

-

-

-

-

-

Good Faith Effort Has Been Made To File A Report.

This is an original mandamus proceeding. Brewer fil ed this suit against Oak Manor
Nursing Home, alleging it failed to prevent her husband from falling down a flight of
stairs. Within 120 days of filing, she served an expert report as required by Tex. Civ.
Prac. & Rem. Code § 74.35 1(a). Oak Manor moved to dismiss on the ground that the
report was signed by a nurse, while the statute requires a physician's report on causation.
Before the hearing on the motion, Brewer served a supplemental report by a physician
and moved for a 30-day extension to allow the supplement to cure the deficiency. The
trial court granted the extension and denied Oak Manor's motion to dismiss. Oak Manor
sought mandamus relief in the court of appeals, which held that the trial court did not err
in granting the 30-day extension, but did err by allowing a new report from a different
expert. 243 S.W.3d 848, 853- 54. Held: Writ of mandamus will issue. The trial court
did not err in granting the extension. To constitute a good-faith effort, a report must
disclose the defendant's treatment that is challenged, and provide a basis for concluding
the claims have merit. A report by an unqualified expert will sometimes (though not
always) reflect a good-faith effort sufficient to justify a 30-day extension. Additionally,
the trial court did not err in allowing the supplemental report from a physician. The
statute, Tex. Civ. Prac. & Rem. Code§ 74.351(i)), provides that "any requirement of this
section" can be fulfilled "by serving reports of separate experts." Because a claimant may
cure a deficiency by serving a report from a new expert, the court of appeals erred in
concluding otherwise.

************************************************************************
************************************************************************
In re NEXT Financial Group, Inc., 271 S.W.3d 263 (Tex. 11/14/2008).
Per Curiam
Whistleblower Claim Must Be Arbitrated Under Agreement With Employer.
This is an original mandamus proceeding. H eld: A former securities broker must
arbitrate a claim that his employer wrongfully discharged him for refusing to commit an
illegal act The employee's Sabine Pilot Serv., Inc. v. Hauck, 687 S.W.2d 733, 734-35
(Tex. 1985) claim falls within the scope of his arbitration agreement and is not subject to
an exception limited to statutory employment discrimination claims.

************************************************************************
************************************************************************
SIGNIFICANT DECISION
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 87

Wagner & Brown Ltd. v. Sheppard,--- S.W.3d ----,2008 WL 4958501 , 52 Tex. Sup. Ct.
J. 130 (Tex. 11/21/2008).
Opinion By: Justice Brister. Justice Willett did not participate in the decision.

-

....
....

....

-

....

Oil And Gas Pooling Continues Even If Lease Is Terminated.
Sheppard owns 1/8th of the minerals underlying a 62.72-acre tract. C.W. Resources, Inc.
leased her 1/8th interest, and along with Wagner & Brown, Ltd. leased the other 7/8ths of
the minerals from other owners. Sheppard's 1994 lease contained a standard industry
pooling clause. Sheppard's lease had a special addendum providing that if royalties were
not paid within 120 days after first gas sales, her lease would terminate the following
month. Sheppard's lease also authorized pooling with adjacent tracts. On 9/111996, C.W.
Resources, Wagner & Brown, and mineral lessees on adjacent tracts signed a unit
agreement pooling the Sheppard tract and eight others to form the W .M. Landers Gas
Unit. One month later, a gas well was successfully completed and began producing, and a
second well was completed in 9/1997. Both wells were physically located on the
Sheppard tract, but pursuant to the unit agreement proceeds and costs were split among
all the tracts in proportion to acreage. The parties agree that Sheppard's lease terminated
on 3/1/2008, because royalties had not been paid within 120 days of the first gas sales.
The trial court granted summary judgment for Sheppard, finding that termination of the
lease also terminated her participation in the unit, that she was not liable for any costs
incurred before termination, and that she was liable for costs incurred after termination
only if they pertained solely to her lease; the court of appeals affirmed. Held: The
judgment of the court of appeals is reversed and judgment is rendered that ( 1) termination
of Sheppard's lease did not terminate her participation in the Landers unit, and (2)
Wagner & Brown may account for both production and costs on a unit basis to the extent
allowed by the parties' agreements, custom in the industry, and the trial court's order that
operating expenses be deducted from production on a well-by-well basis (from which
order the defendants have not appealed). This case is not decided on general principles,
but rather on the particular documents involved. Just as owners and operators
generally must agree to create a pool, they should also be able to agree when one
terminates. If the parties want pooling to expire (or not) upon termination of one
lease, they should be free to say so. The lease here allowed the Sheppard tract (rather
than just the lease) to be pooled for purposes of production, and that is what the unit
designation did. As termination of the lease changed none of the lands committed to the
unit, it did not terminate the unit. Thus, while Sheppard is entitled as a co-tenant to 1/8th
of the proceeds due to the mineral owners of her tract, that does not entitle her to 1/8th of
the proceeds that must be shared with mineral owners of other tracts by the terms of the
unit agreement.
Oil & Gas Lease Termination Did Not, Under Lease, Terminate Participation In
Pooling Unit.
The portion of Sheppard's pooling clause regarding termination for lack of production
resolves this case. That clause provides that the unit "may terminate" if production
ceases, but there is nothing to show this was intended to be the exclusive means. The
documents do not specify what happens to the unit when one lease terminates, so this
case calls for interpretation rather than plain reading. But a proper interpretation of these
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 88

-

-

-

-

-

-

-

-

-

-

documents indicates the termination of Sheppard's lease did not terminate her
participation in the unit. A lease is not necessarily required for pooling; mineral owners
can join a pool even if no lease exists. Here, both Sheppard' s lease and the unit
agreement pooled ce11ain "premises" and "lands," not just their leased interests. Although
Sheppard's lease expired, the lands themselves obviously did not. Thus, while
termination of Sheppard's lease changed who owned the mineral interests in the unit, it
did not cause the unit to terminate because it was a pooling of lands, not just leases.
Pooling Impinges On Royalty Interest And Owner's Possibility Of Reverter.
When a unit is properly pooled, the owners of the minerals or reversionary interests in a
separate tract within the unit surrender their right to receive their interest in all production
from wells located on their own tract. Just as pooling impinges on a mineral owner's
royalty interest, it also may impinge on an owner's possibility of Reverter.

************************************************************************
************************************************************************
Sonat Exploration Co. v. Cudd Pressure Control, Inc., 271 S.W.3d 228 (Tex.
11/2112008).
Opinion By: Justice Brister
Choice Of Law. Louisiana Law Applies To Oilfield Exploration Contract In Case
Involving Indemnity.
Sonat Exploration Company and Cudd Pressure Control, Inc. signed a Master Service
Agreement in May 1998 to govern oilfield services Cudd was to perform for Sonat. The
agreement contemplated operations in at least four places, and specified the law for three
of them. It required each company to indemnify the other for claims brought by their
respective employees. It also required on jobs in Louisiana that Cudd name Sonat as an
additional insured on its insurance policies. In October 1998, an explosion at one of
Sonat's Louisiana wells killed seven workers, including four Cudd employees. When the
survivors of those four sued Cudd and Sonat in Texas, Sonat demanded indemnity but
Cudd refused it. Sonat also demanded coverage as an additional insured from Cudd' s
insurer, Lumbermens Mutual Casualty Company, and again was refused. Sonat filed an
indemnity claim against Cudd in the survivors' suit, and a separate lawsuit asserting
claims against Lumbermens as an additional insured and alternatively against Cudd for
failing to name Sonat as an additional insured. Sonat and Cudd jointly settled with one of
the four Cudd employees, but could not agree on settlement amounts for the other three.
Eventually Sonat alone paid about $28 million to settle those claims, for which it seeks
indemnity from Cudd. The trial court found the parties' indemnity agreement enforceable
under Texas law, and after a jury found a reasonable settlement would have been
$20,719,166.74, the trial court entered judgment in that amount for Sonat and against
Cudd. Cudd filed a notice of appeal, and Lumbermens as its insurer posted $29 million as
security. Before filing its appellate brief, Cudd signed a Rule 11 agreement with Sonat
waiving its argument that Louisiana law applied, in return for which Sonat agreed to
nonsuit its separate contract suit. On remand, the court of appeals agreed with
Lumbermens' arguments and reversed the trial court's application of Texas law, and then

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 89

-

-

remanded for unspecified further proceedings. From that judgment, Sonat appeals
claiming its indemnity was valid under Texas Jaw; Lumbermens responds that it was
invalid under Louisiana law; and Cudd conditionally appeals claiming it was invalid even
under Texas law. Held: When a contract involves oilfield work in many states,
sophisticated parties should generally be free to designate the law that will govern their
relationship and have that choice respected. But the parties here chose no law for
Louisiana jobs, and included an additional-insured provision that would have been
superfluous had they expected their indemnities to be enforceable in such cases. Because
contracts should be governed by the law the parties had in mind when the contract was
made, in these circumstances Louisiana law applies.
Conflict Of Laws. Texas And Louisiana Law Conflict On Oilfield Indemnity
Agreements.
It is unnecessary to decide which state's laws apply unless those laws conflict. Here,
however, there is a conflict between the law of Texas and that of Louisiana. Under Texas
law, oilfield indemnity clauses are valid if they are mutual and supported by liability
insurance. Under Louisiana Jaw, such clauses are invalid if the party seeking indemnity
was negligent or strictly liable.

-

-

-

-

-

Choice Of Law Issue Reviewed Under Restatement Rule.
In passing upon a choice of law issue, the courts look to the Restatement (Second) of
Conflict of Laws - specifically section 187 for contracts that contain an express choice
of law, and section 188 for those that do not.
Choice of Law With Multistate Contracts.
In determining what law applies to a multistate contract, the Restatement (Second) of
Conflict of Laws Section 188 lists five contacts to be taken account: (a) the place of
contracting, (b) the place of negotiation, (c) the place of performance, (d) the location of
the subject matter, and (e) the domicile, place of incorporation, and place of business of
the parties. The Restatement also lists seven non-exclusive factors to be considered in
determining the applicable law. But it deems one of them most significant in contract
cases: Protection of the justified expectations of the parties is the basic policy underlying
the field of contracts. Enforcing contracts according to their own terms satisfies the
relevant policies of the forum, enhances certainty, predictability, and uniformity of result,
and facilitates commerce and relations with other states and nations. Accordingly, the
parties' expectations as stated in their contract should not be frustrated by applying a state
law that would invalidate the contract, at least not unless those expectations are
substantially outweighed by the interests of the state with the invalidating rule.
Appellate Judgment. Reversal In Favor Of Appealing Party May Require Reversal
As To Non-Appealing Party, If Interests Are Interwoven.
Generally, reversal in favor of a party that appealed does not require reversal in favor of
another who did not. But an exception applies when the rights of appealing and nonappealing parties are so interwoven or dependent on each other as to require a reversal of
the entire judgment. If Cudd (which did not raise the choice of law issue on appeal) is
still bound to the trial court judgment, so is Lumbermens (which did raise the choice of
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 90

-

-

-

law issue on appeal) as its liability insurer. Sonat has not asserted a direct action in this
case against Lumberrnens; but it can recover against Lumberrnens if it can recover
against Cudd. The $29 million Lumberrnens pledged to secure the trial court judgment
during this appeal is payable to Sonat unless Lumbermens' successful appeal applies not
just to itself but also to its insured. The exception extending reversals to non- appealing
parties has most often been applied when indemnity claims or other dependent claims are
involved, which is the case here.

******************************************************************** ****
** ******************************************************************** **
In re Globa/SantaFe Corp.,--- S.W.3d ----,2008 WL 5105257,52 Tex. Sup. Ct. 1. 159
(12/5/2008).
Justice Willett

Silica Cases. General Procedural Framework Not Preempted, Although MinimalI mpairment Provision Is Preempted.
This is an original mandamus proceeding The general procedural framework, set out in
Chapter 90 of the Civil Practice and Remedies Code, applicable to certain silica-related
cases, and under which, the case is not preempted by the Jones Act, a federal maritime
statute, although Chapter 90's minimal-impairment provision relating to silica claims is
preempted.
Mandamus Relief Appropriate When Traditional Rules Of Litigation Are Creating
A Crisis.
The MDL pretrial court's conclusion, that Chapter 90 was preempted by the Jones Act,
was erroneous, and mandamus relief is appropriate to correct the error. Mandamus relief
is available when the Legislature has enacted a statute to address findings that traditional
rules of litigation are creating an ongoing crisis, and the purposes of the enacted statute
would otherwise be defeated. These precise grounds for mandamus relief are again
presented. Here, the Legislature has already balanced most of the relevant costs and
benefits.
Jones Act Preemption Special.
The preemption of state law by the Jones Act is a unique comer of federal preempti on
law that must be applied with recognition that Jones Act cases can be brought in federal
or state court. Federal preemption in this context does not always lend itself to simple
resolution. The U. S. Supreme Court, however, has laid down some general principles.
On the one hand, substantive rights created by Congress via the Jones Act must prevail
over inconsistent state substantive law even where the suit is brought in state coru1. On
the other hand, it has held that state law characterized as procedural is not preempted.
The Court has also recognized that federal maritime law follows a "reverse Erie" doctrine
of sorts, employing the use of substantive federal maritime law in state courts but
recognizing that state procedural law can be followed.

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 91

************************************************************************
************************************************************************

-

-

-

In re General Elec. Co., 271 S.W.3d 681 (Tex. 12/5/2008).
Justice Jolmson. Justice O'Neill did not participate in the decision.
Mandamus Available When Trial Court Refuses Proper Motion To Dismiss For
Forum Non Conveniens.
An adequate remedy by appeal does not exist, and mandamus relief is available, when a
motion to dismiss for forum non conveniens is erroneously denied.
Forum Non Conveniens. When All Statutory Factors Favor Conclusion That
Action Would Be More Proper In Another Jurisdiction, Trial Court Has No
Discretion.
When all section of Tex. Civ. Prac. & Rem. Code § 71.051(b) factors in a case favor the
conclusion that an action or claim would be more properly held in a forum outside Texas,
as they do here, the statute requires the trial court to grant motions requesting that it
decline to exercise its jurisdiction. The trial court's denial of the relators' motions to
dismiss violated the forum non conveniens statute and was an abuse of its discretion. The
trial court had no discretion but to apply the factors found in the forum non conveniens
statute and dismiss Richards's claim because those factors weigh in favor of a forum
other than Texas.

************************************************************************
************************************************************************
Texas Dept. ofTransp. v. York,--- S.W.3d ----, 2008 WL 5105254, 52 Tex. Sup. Ct. J.
175 (12/5/2008).
Per Curiam
Tort Claim. Loose Gravel On Road Is Not A Special Defect.
Loose gravel on a road is not, as a matter oflaw, a "special defect" under Texas Civil
Practices and Remedies Code section 10 1.022(b).

************************************************************************
************************************************************************

-

-

AutoZone, Inc. v. Reyes, 272 S.W.3d 588 (Tex. 12/5/2008).
Per Curiam.
Evidence. Stray Remark On Age Discrimination Insufficient To Establish
Discrimination.
After he was discharged from his job at AutoZone, Inc., sixty-two-year-old Salvador
Reyes sued AutoZone for age discrimination. AutoZone contended Reyes was discharged
because he sexually harassed a female co-worker. The jury found for Reyes, and the trial
court entered judgment on the verdict. The court of appeals determined that statements
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 92

-

-

-

-

-

made by an AutoZone employee not involved in or connected with Reyes's discharge and
evidence of discipline meted out to other employees for sexual harassment comprised
legally sufficient evidence to support the finding of age discrimination. Held: Reversed
and rendered. Villarreal's comments to Alvarado that Reyes was terminated because
AutoZone was trying to get rid of "the old people" have no evidentiary value. Stray
remarks are insufficient to establish discrimination and statements made remotely in time
by someone not directly connected with termination decisions do not raise a fact issue
about the reason for termination. Statements and remarks may serve as evidence of
discrimination only if they are (1) related to the employee's protected class, (2) close in
time to the employment decision, (3) made by an individual with authority over the
employment decision, and (4) related to the employment decision at issue. In
determining whether the individual making the remark had authority over the
employment decision, consideration is not limited to statements by the person who
officially made the decision. Discriminatory animus by a person other than the decisionmaker may be imputed to an employer if evidence indicates that the person in question
possessed leverage or exerted influence over the decision-maker. In this case, the
evidence showed that Villarreal neither played any part in AutoZone's investigation or
decision to discharge Reyes, nor did he possess any leverage over or exe1i any influence
over the investigation or decision. The evidence is legally insufficient to support the jury
finding that age was a motivating factor in any action AutoZone took as to Reyes.

************************************************************************
************************************************************************
SIGNIFICANT DECISION
Southwestern Bell Telephone Co., L.P. v. Mitchell, --- S.W.3d ----,2008 WL 5266380
(Tex. 12/19/2008).
Justice Hecht; Chief Justice Jefferson filed a dissenting opinion, in which Justice O'Neill
and Justice Medina joined. Justice Green took no part in the decision of the case.
Worker's Compensation. Downs Is Overruled. Carrier Has Sixty Days To Contest
Compensability.
For more than a decade, the Texas Workers' Compensation Commission, the entity then
charged with carrying out the Act, had consistently taken the position that a carrier had
sixty days to contest compensability, suffering only a penalty for the late contest. In
Continental Casualty Co. v. Downs, 81 S.W.3d 803, 804, 807 (Tex. 2002), the Court
construed section 409.021(a) of the Workers' Compensation Act to preclude a carrier
from contesting the compensability of an employee's injury unless, within seven days of
receiving notice of injury, it either began to pay benefits or gave written notice of its
refusal to do so. Less than nine months after Downs was final, the Legislature amended
section 409.021 to make clearer that a carrier who "fails to comply with Subsection (a)
does not waive the ... right to contest the compensability of the injury". Held: The
decision in Downs is overruled as having been wrongly decided.

Stare Decisis May Be Inefficient When Legislature Does Not Acquiesce In Decision.

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 93

-

-

Generally, the doctrine of stare decisis dictates that once the Supreme Court announces a
proposition of law, the decision is considered binding precedent. In the area of statutory
construction, the doctrine of stare decisis has its greatest force, because the Legislature
can rectify a court's mistake, and if the Legislature does not do so, there is little reason
for the court to reconsider whether its decision was correct. But when the Legislature
does not acquiesce in the court's construction, but instead immediately makes clear that
the proper construction is one long adopted by the agency charged with enforcing the
statute, judicial adherence to the decision in the name of stare decisis may actually
disserve the interests of "efficiency, fairness, and legitimacy" that support the doctrine. It
is hardly fair or efficient to give effect to a judicial construction of a statute for a brief
period of time when the Legislature has reinstated for future cases the same rule that had
been followed before the court's decision. The doctrine of stare decisis does not justify
inequity and confusion in such a narrow gap of time. Stare decisis does not warrant an
obstinate insistence on precedent that appears to be plainly incorrect.

************************************************************************
************************************************************************
SIGNIFICANT DECISION
Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338,273 S.W.3d
659 (Tex. 12119/2008).
Justice Hecht

-

-

-

Transit Authority Not Preempted From Asserting Immunity From Suit.
Section 13(c) of the federal Urban Mass Transit Act of 1964 (the "UMTA", now the
Federal Transit Act, 49 U.S.C. § 5333(b) (2006)) conditions a public transportation
authority's receipt of federal financial assistance on "arrangements the Secretary of Labor
concludes are fair and equitable" to protect "the interests of employees affected by the
assistance". Such arrangements "shall include provisions that may be necessary for ...
the preservation of rights, privileges, and benefits ... [and] the protection of individual
employees against a worsening of their positions related to employment". In this case, a
public transportation authority and its employees' union, operating under a 13(c)
arrangement, resolved a general grievance over wages and benefits. The authority did
not adhere to the resolution, and the union sued for breach of contract. The lower courts
concluded that the authority is not immune from suit. Held: Reversed and the case is
dismissed. Section 13(c) does not preempt an authority's immunity from suit under state
law. The union's recourse is to the procedures approved in the 13(c) arrangement. ATU
1338's complaint is with the 1991 Arrangement, not state immunity law. The
Arrangement gave ATU 1338 no judicial recourse. DART's immunity from suit takes
nothing away from ATU 1338 to which it was entitled under section 13(c).

Appellate Jurisdiction. Supreme Court Has Conflict Jurisdiction When Court Of
Appeals Decision Conflicts With A Decision Of The U.S. Supreme Court.
The Texas Supreme Court has jurisdiction over an interlocutory appeal if the court of
appeals' decision conflicts with a decision of the United States Supreme Court.
Sum maries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 94

-

************************************************************************
************************************************************************
United States Fidelity and Guar. Co. v. Goudeau, 272 S.W.3d 603 (Tex. 12119/2008).
Justice Brister; Justice Green filed a dissenting opinion in which Chief Justice Jefferson
and Justice Johnson joined.
Insurance; Underinsured. One Outside Insured Car, Struck By That Car, Did Not
Occupy Car.
Louis Goudeau, a "Good Samaritan", stopped his car on a Houston freeway to help a
stranded motorist. After leaving his car to approach the disabled one, Goudeau was
severely injured when a third driver smashed into both cars and pinned him between them
and a retaining wall. Goudeau recovered from the driver who caused this accident, but
that driver had only $20,000 in insurance. Goudeau sought to recover under his
employer's underinsured motorist policy, which applies only if Goudeau was
"occupying" his car at the time of the accident. The standard-form policy defined
"occupying" as "in, upon, getting in, on, out or off." The court of appeals found a fact
question on that issue, even though Goudeau had exited his car, closed the door, and
walked around the front toward the retaining wall when the accident occurred. Held:
Reversed and rendered. Under the insurance policy here, Goudeau was not "occupying"
his car at the time of the accident, so he cannot recover under this policy. Coverage
cannot be found, as Goudeau argues, because he was "occupying" the car by being
"upon" it when he was injured. Under the traditional canon of construction noscitur a
sociis ("a word is known by the company it keeps"), each of the words used here must be
construed in context. In this context, a person sitting in the back of a pickup at the time of
an accident might be "occupying" the vehicle by being "upon" it. But a driver who has
exited the car, closed the door, walked around the front, and then has the vehicle smashed
into him cannot be said to be "occupying" the vehicle at the time of the collision, even if
afterwards he ends up partly "upon" it. We cannot ignore the context by focusing solely
on "upon" and ignoring "occupying." Construing "upon" to include the situation here
would ascribe to one word a meaning so broad that it is inconsistent with its
accompanying words.

-

Discovery. Admitted Request By Insurer In One Capacity Not Binding On Insurer
In Other Capacity.
The plaintiffs requested that defendant-USF&G admit Goudeau was covered under the
underinsured motorist policy. But they did not send the request to the lawyer representing
USF&G on that policy; they sent it instead to the lawyer representing USF&G as
intervenor under the worker's compensation policy. That lawyer admitted coverage.
Held: The admission did not preclude USF&G from contesting coverage. In the latter
capacity, USF&G stood "in the shoes of the insured," asserting only claims that belonged
to Goudeau. By contrast, USF&G in its capacity of defending the underinsured policy
stood in the shoes of the underinsured motorist. The plaintiffs already knew that
intervenor USF&G asserted coverage and that defendant USF&G denied it, as that is

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 95

what each of their pleadings said. The carrier appeared in two different capacities, and a
request sent to it in one capacity cannot be used against it in another.

************************ ***************** **** *********** ** **************
************************************************************************
In re Caballero, 272 S.W.3d 595 (Tex. 12119/2008).
Justice Green; Justice Willett filed a dissenting opinion, in which Justice Medina joined.

-

Attorneys. Disbarment Discretionary When Attorney Convicted Of Intentional
Crime And Sentence Is Probated.
Under the compulsory discipline process, set forth in the Texas Rules of Disciplinary
Procedure, when an attorney's sentence has been fully probated, the Board of
Disciplinary Appeals (BODA) has discretion to disbar that attorney, or may only suspend
him for the length of the probation term. Caballero was convicted of an intentional crime
(he plead guilty to a federal charge of mail fraud) and received a fully-probated sentence.
BODA, therefore, had discretion to either disbar Caballero or suspend his license for the
term of the probation. Further, there is nothing in the record to indicate an abuse of
discretion on BODA's part in disbarring Caballero

****************** **** ********************************** ****************
************************** **********************************************
In re Zandi, 270 S.W.3d 76 (Tex. 12/19/2008).
Per Curiam

-

-

-

-

Contempt. Notice Required Before Revocation Of Suspension.
This is on rehearing of a petition for writ of habeas corpus. The trial court held relator
Zandi in contempt, for failure to pay child support. The Supreme Court granted the writ
of habeas corpus. Held: The motion for rehearing is denied. When a person appears at a
status hearing set by the court in a contempt or commitment order as a condition of
suspension of his sentence for failure to pay child support, without notice of any assertion
that suspension will be revoked, the court cannot revoke suspension without notice and a
second hearing. If the respondent appears at the compliance (status) hearing and the
movant alleges noncompliance and requests revocation, the trial comt must conduct a
subsequent or second hearing. The trial court cannot revoke the suspension of
commitment or impose sentence without affording the respondent a subsequent hearing,
thereby satisfying the due process "hearing" requirement. The subsequent or second
hearing is required even if the "conditional" contempt or commitment order provides that
failure to comply will result in confinement "without any fmther notice to the respondent.
Respondent's suspension cannot be revoked at the status hearing without prior notice that
revocation will be sought, affording the respondent an opportunity to prepare any defense
to specific complaints. Here, relator Zandi received notice of the compliance hearing at
the contempt stage of the proceeding and neither case law nor statute require subsequent
additional notice before proceeding with a compliance hearing. But Zandi did not receive
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Way ne Scott Page 96

written notice prior to the compliance hearing that Richardson intended to seek
revocation, stating the reasons. It is for want of that notice that Zandi is entitled to
discharge.

************************************************************************
************ ************************************* ** ***************** ****
Gardner v. U.S. Imaging, Inc.,--- S.W.3d ----,2008 WL 5266383 (Tex. 12/19/2008).
Per Curiam

-

Health Care Claim. Trial Or Appellate Court May Grant One Thirty-Day
Extension When Elements Of The Report Are Found To Be Deficient.
Craig Gardner and Thelma Gardner brought this health care liability suit against Dr.
Keszler, who performed a lumbar epidural procedure on Craig, and U.S . Imaging, Inc.
d/b/a SADI Pain Management ("SADI"), the owner and operator of the facility where the
procedure was performed. The Gardners served an expert report on Dr. Keszler and
SADI, who both contested the report as untimely and deficient, under Tex. Civ. Prac. &
Rem. Code§ 74.351 (a). The trial court denied the defendants' motion to dismiss the suit,
but the court of appeals determined the report was deficient and ordered the case
dismissed. Held: In light of the decision in Leland v. Branda!, 257 S.W.3d 204 (Tex.
2008), the judgment of the court of appeals is vacated, and the case is remanded to the
trial court to consider granting the Gardners an extension to cure under section 74.351(c)
of the Texas Civil Practice and Remedies Code.

******** ******** ** ***** ********** ******* ********************************
************************************************************************
SIGNIFICANT DECISION
Graber v. Fuqua, --- S.W.3d ----,2009 WL 51570, 52 Tex. Sup. Ct. J. 249 (119/2009).
Opinion By: Justice Green; Justice Wainwright dissenting, joined by Justices Brister,
Medina and Willett:

-

Bankruptcy Action Does Not Preempt State Malicious Prosecution Claim.
Under the facts of this case, a state malicious prosecution claim is not preempted by the
federal bankruptcy regime, simply because the claim arose out of the filing of an
adversary action in a bankruptcy proceeding. An inference of preemption cannot be
presumed from the silence of Congress on this subject, and permitting such a state
malicious prosecution claim does not impe1missibly threaten the uniformity of the federal
bankruptcy law.
Preemption. Presumption Is That Congress Did Not Preempt State Law.
In all preemption cases, any analysis must begin with a presumption that Congress did
not preempt state law. In the areas where Congress custom-built bankruptcy law,
preemption is more likely, because when Congress crafted new, unique provisions, it
probably contemplated whether or not to exclude overlapping state law remedial
schemes. But, in the areas where Congress merely imported existing federal law, without
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 97

-

any significant change, preemption is improbable, because such borrowing does not
evidence an intent to change well-settled preemption law.

************************************************************************
**** ** ********** *********** ***** ****************************************

-

-

-

-

-

SIGNIFICANT DECISION
Badiga v. Lopez,--- S.W.3d ----, 2009 WL 51568, 52 Tex. Sup. Ct. J. 267 (1/9/2009).
Opinion By: Chief Justice Jefferson. Justice Brister delivered a dissenting opinion, in
which Justice Medina joined.
Interlocutory Appeal Allowed When Trial Court Extends Time For Filing Of
Expert Report That Claimant Failed To File.
Tex. Civ. Prac. & Rem. Code § 74.351 requires a health care liability claimant to serve
expert reports on providers within 120 days after filing suit. If a claimant does not do so,
the trial court "must grant" the provider's motion to dismiss the claim and the provider
may appeal from the court's failure to do so. If the claimant's report is timely but
deficient, the trial court may grant a single thirty-day extension to cure the deficiency,
and the order granting that extension may not be appealed. Also, a provider may
immediately appeal when a trial court denies, under section 74.35l(b), a motion to
dismiss, whether or not the trial court grants an extension of time, even though no expert
report was timely served.

************************************************************************
************************************************************************
In re International Profit Associates, Inc.,--- S.W.3d ----,2009 WL 51567, 52 Tex. Sup.
Ct. J. 272 (1/9/2009).
Opinion By: Per Curiam
Forum Selection Clause In Question Is Enforceable.
This is an original mandamus proceeding. Tropicpak, Inc. entered into contracts with
three related management and tax consulting firms (IP A).. The contracts called for IPA
to provide Tropicpak with (1) general business consulting services, (2) business
operations and financial assessment services, and (3) tax consulting services. Each
agreement provided that "It is agreed that exclusive jurisdiction and venue shall vest in
the Nineteenth Judicial District of Lake County, Illinois, Illinois law applying." After
execution of the agreements, according to Tropicpak, IP A made business
recommendations, including that Tropicpak hire Salinas to help increase sales. Tropicpak
hired Salinas, who allegedly embezzled large sums of money from the company.
Tropicpak sued Salinas, IPA employee James Gibson, and IPA in Hidalgo County. The
allegations as to IPA were that it negligently provided professional services, committed
fraud and/or fraudulent inducement, made negligent misrepresentations, and breached its
duty of good faith and fair dealing. IPA answered and filed a motion to dismiss based
upon the forum-selection clauses. The trial court denied IPA's motion. Held: Writ of
mandamus will issue. The trial court is directed to vacate its order denying IP A's motion
Sum maries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 98

-

to dismiss and to grant the motion. The trial court clearly abused its discretion in denying
IPA's motion to dismiss. Tropicpak presented no evidence to overcome the presumption
that the forum-selection clauses are valid.

-

-

-

-

-

Note: Neither did it prove that its claims do not fall within the scope of the
clauses. The contract is not ambiguous, since it is not susceptible to more than
one reasonable interpretation. The claims asserted by Tropicpak arise from its
contracts with IP A. No matter how Tropicpak characterizes or artfully pleads its
claims, the claims and alleged damages arise from the contractual relationship
between the parties, not from general obligations imposed by law. Nor does the
record establish that IP A fraudulently induced Tropicpak to accept the forumselection clauses by not separately disclosing the clauses. It is presumed that
Tropicpak understood and agreed to the contents of its contracts. By agreeing to
the forum-selection clauses, Tropicpak represented to IPA that the agreed forum
would not be so inconvenient that enforcing the clause would deprive Tropicpak
of its day in court. To avoid enforcement of its agreements and the clauses,
Tropicpak must have proved that special and unusual circumstances developed
after the contracts were executed and that litigation in Illinois would now be so
gravely difficult and inconvenient that Tropicpak would for all practical purposes
be deprived of its day in court.
Forum Selection Clauses Enforceable Unless At Least One Of Four Elements Are
Shown.
Forum-selection clauses are generally enforceable, and a party attempting to show that
such a clause should not be enforced bears a heavy burden. A trial court abuses its
discretion if it refuses to enforce a forum-selection clause, unless the party opposing
enforcement clearly shows that (1) the clause is invalid for reasons of fraud or
overreaching, (2) enforcement would be unreasonable or unjust, (3) enforcement would
contravene a strong public policy of the forum where the suit was brought, or (4) the
selected forum would be seriously inconvenient for trial. Mandamus relief is available to
enforce forum-selection agreements because there is no adequate remedy by appeal when
a trial court abuses its discretion by refusing to enforce a valid forum-selection clause that
covers the dispute.

Mandamus Not Waived By Explainable Delay.
Although mandamus is not an equitable remedy, its issuance is controlled largely by
equitable principles. One such principle is that equity aids the diligent and not those who
slumber on their rights. Thus, delaying the filing of a petition for mandamus relief may
waive the right to mandamus, unless the relator can justify the delay. Under the facts (the
explanation provided and the record presented) of this case (detailed in the opinion), IP A
did not "slumber on its rights" to the extent it waived its right to seek mandamus relief.
Forum Selection Clause Was Not Fraudulently Induced.
A party asserting that it was fraudulently induced into entering an agreement must show
that (1) the other party made a material representation, (2) the representation was false

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 99

-

and was either known to be false when made or made without knowledge of its truth, (3)
the representation was intended to be and was relied upon by the injured party, and (4)
the injury complained of was caused by the reliance.

Failing To Disclose Information Amounts To A False Representation Only When A
Party Has A Duty To Speak, And Remains Silent.
Failing to disclose information is equivalent to a false representation only when particular
circumstances impose a duty on a party to speak, and the party deliberately remains
silent. Whether such a duty to speak exists is a question of law.

*********************************************** **** *********************
************************************************************************
In re Dep 't ofFamily & Protective Services, 273 S.W.3d 637 (Tex. 119/2009).
Opinion By: Justice Johnson. Justice Hecht filed a dissenting opinion, in which Justice
Brister joined. Justice Brister filed a dissenting opinion, in which Justices Hecht, O'Neill
and Medina joined.

-

-

Parental Termination. New Trial Order After Deadline Requires Dismissal.
This is an original mandamus proceeding. The Department of Family and Protective
Services brought this parental-rights termination case, and was appointed temporary
managing conservator of two children. The trial comt ordered the mother's (K.W.'s)
parental rights terminated before the one-year dismissal date prescribed by Tex. Fam.
Code § 263.401(a), but then, after the dismissal date, granted the mother's motion for
new trial. The trial court neither rendered another final order nor entered an extension
order, and the mother moved to dismiss the case more than nineteen months after the
Department was first appointed temporary managing conservator. Her motion to dismiss
was denied. Held: Writ of mandamus will issue. While the dismissal dates are not
jurisdictional, the Family Code required the case to be dismissed and the trial court
abused its discretion by failing to do so. Subsection 263.401(a) of the Texas Family
Code is clear that the suits must be dismissed on the first Monday after the first
anniversary of the date the Department was appointed temporary managing conservator
of the children, absent the rendering of a final order or the granting of an extension. Tex.
Fam. Code § 263.402(b) specifies the requirements for a party to waive the deadlines.
K.W. did not waive them, as the statute provides she could, and this record does not show
that K.W. otherwise waived them. The court cannot just enter an extension order. Under
Tex. Fam. Code§ 263.401(b), in order for the suit to remain on the comt's docket beyond
the one-year dismissal date, the court must make specific findings to support the
extension order. Even if a trial court enters an extension order, the suit may be retained
on the court's docket for a maximum of 180 days after the one-year dismissal date, and
the trial court must make specific provision in the order setting ( 1) the new dismissal date
for not later than the 180-day limit, and (2) the trial on the merits for a date that complies
with the 180-day limit. A trial court may not grant a second extension to retain the suit on
the comt's docket beyond the 180-day limit. Parties may not extend the deadlines set by
the court "by agreement or otherwise."

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 100

-

-

-

-

Mandamus In Child Custody Cases.
Whether a clear abuse of discretion can be adequately remedied by appeal depends on a
careful analysis of the costs and benefits of interlocutory review. In cases involving child
custody, justice demands a speedy resolution, and appeal is frequently inadequate to
protect the rights of parents and children. Here, because the children would remain in the
Department's custody despite its retaining them in violation of a statutory provision, and
it is unknown when the trial court would issue a final order subject to appeal, K.W. has
no adequate remedy by appeal.
"Invited Error" Applies When Party Requests A Ruling, And Then Complains On
Appeal Of That Action.
The "invited enor" doctrine applies to situations where a party requests the court to make
a specific ruling, and then complains of that ruling on appeal. , Under the 'the invited
error' doctrine a party cannot complain on appeal that the trial court took a specific action
that the complaining party requested. K. W. did not invite the error in question. The
only request K.W. made to the trial court in regard to dismissal was that the suit be
dismissed. She does not assert error in regard to what she asked the trial court to do and
it did do- grant her a new trial at a time the trial court was statutorily authorized to grant
a new trial and enter an extension order setting a new dismissal date. She asserts error in
regard to what she asked the trial court to do and it did not do-<lismiss the Department's
suit at a point in time beyond any statutorily authorized dismissal date. It was not
incumbent on K. W. to advise the trial court of all the ramifications of its granting her
motion for new trial. She was entitled to have the trial court consider the motion on its
merits, and so far as the record shows, that is what the trial court did ..
Estoppel On Appeal.
For a party to be estopped from asserting a position in an appellate court based on actions
it took in the trial court, the party must have unequivocally taken a position in the trial
court that is clearly adverse to its position on appeal.

********************************************************* ***************
************************************************************************

-

Columbia Medical Center of Las Colinas, Inc. v. Hogue , 271 S.W.3d 238 (Tex. 2008).
Corrected opinion by Justice Wainwright

The following is from the Texas Supreme Court Website:
corrected opinion by Justice Wainwright:
On page 26 (PDF version) statutory references to House Bill2415 and HB 4 are
added, the effective date of the statutes corrected, the article the substituted for either in a
reference to the final order and the plural removed reference to effective dates:
House Bills 24 15 and 4 lowered the floor interest rate to five percent from ten
percent, and the ceiling interest rate to fifteen percent from twenty percent in subsections
(c)(2) and (c)(3), respectively, of Texas Finance Code§ 304.003, effective June 20, 2003

Su mmaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 101

-

aRd September 1, 2003. Act of June 2, 2003 , 78th Leg., R.S., ch. 676, § 2(a), 2003 Tex.
Gen. Laws 2097; Act of June 2, 2003, 78th Leg., R.S., ch. 204, § 6.04, 2003 Tex. Gen.
Laws 862, 899. See also BIC Pen Corp. v. Carter, 251 S.W.3d 500,510 (Tex. 2008).
The amendments applied to final judgments that are "signed or subject to appeal on or
after the effective date of this Act." § 2(a), 2003 Tex. Gen. Laws 2097; § 6.04, 2003 Tex.
Gen. Laws 862. The trial court signed the amended final judgment in this case on
December 3, 2002, before ettfierthe effective date. However, Columbia Medical argues
that the amendments apply because the case was "subject to appeal" on or after the
amendments' effective dates.

-

************************************************************************
****************************************************** ******************

-

In re Watkins,--- S.W.3d ----, 2009 WL 15325 1,52 Tex. Sup. Ct. J. 309 (1 /23/2009).
Justice Brister. Chief Justice Jefferson filed a concurring opinion, in which Justice
O'Neill joined. Justice Johnson filed a concuuing opinion. Justice Willett filed a
concurnng opmwn.

-

Mandamus Not Available If Expert's Report Was Deficient & Trial Court
Erroneously Granted An Extension of Time To Correct, Since Interlocutory Appeal
Prohibited.
This is an original mandamus proceeding. Jones filed this suit against Dr. Watkins,
alleging she injured his eye in the course of treating a lesion on his face. Within 120 days
of filing, he served what he purported to be an expert report. Dr. Watkins objected that
the report was merely a narrative of treatment, and failed to address the standard of care,
breach, or causation. The trial court granted a 30-day extension. Jones filed a new report,
which Dr. Watkins has not challenged. Dr. Watkins then filed an interlocutory appeal,
and an original proceeding in the court of appeals, asserting that the trial court abused its
discretion in granting an extension, and seeking an order of dismissal. The court of
appeals dismissed the interlocutory appeal for want of jurisdiction and denied mandamus
relief. Dr. Watkins seeks review of only the latter ruling, asking that the case be
dismissed. Held: Writ of mandamus is denied. It does not matter whether the original
expert report was a deficient report, or no report at all. If no report was served,
interlocutory appeal was available, so mandamus is unnecessary. If the report was merely
deficient, then an interlocutory appeal was prohibited, and granting mandamus to review
it would subvert the Legislature's limit on such review. Legislative findings, balancing
the costs and benefits of interlocutory review, must work both ways: having treated them
with respect when they encourage interlocutory review, they must be treated with the
same respect when they discourage it.

************************************************************************
************************************************************************
Pine Oak Builders, Inc. v. Great American Lloyds Ins. Co., --- S.W.3d ----, 2009 WL
353526, 52 Tex. Sup. Ct. J. 348 (2/13/2009).
Justice Willett

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 102

-

-

-

Insurance; CGL Policy Covers A Claim Of Faulty Workmanship.
A claim of faulty workmanship against a homebuilder is a claim for property damage
caused by an occurrence under a COL policy.
Note: Repeat of holding in Lamar Homes, Inc. v. Mid-Continent Casualty Co .
The relevant policy language in the Great American policies is identical to the
policy language we construed in Lamar Homes.[
Insurance. Prompt Payment of Claims Statute Does Not Apply To An Insurer's
Breach oflts Duty To Defend Under A Liability Policy.
The Prompt Payment of Claims statute does not apply to an insurer's breach of its duty to
defend under a liability policy.
Note: Lamar Homes again controls, making clear the statute does apply to such
situations.
Insurance; CGL. Actual Injury Rule Determines Whether A Property Damage
Claim Is Covered.
The actual-injury rule, and the "exposure rule" or the "manifestation rule" applies in
determining whether a property-damage claim is covered under an occurrence-based
COL policy, under which property damage occurs during the policy period, if "actual
physical damage to the property occurred" during the policy period. The key date is
when injury happens, not when someone happens upon it-that is, the focus should be on
when damage comes to pass, not when damage comes to light.
Note: Repeat of Don 's Building Supply, Inc. v. OneBeacon Insurance Co.

-

Insurance. Duty To Defend Determined Under Eight Corners Rule. Extrinsic
Evidence May Not Be Used By Insurer Or Insured On Issue Of Duty To Defend.
Evidence, extrinsic to the eight comers of the COL insurance policy and the underlying
lawsuit, may not be used to establish the insurer's duty to defend. In deciding the duty to
defend, the court should not consider extrinsic evidence from either the insurer or the
insured that contradicts the allegations of the underlying petition. The duty to defend
depends on the language of the policy setting out the contractual agreement between
insurer and insured. A defense of third-party claims, provided by the insurer, is a
valuable benefit granted to the insured by the policy, separate from the duty to indemnify.
But the insurer's duty to defend is limited to those claims actually asserted in an
underlying suit. To hold otherwise would impose a duty on the insurer that is not found
in the language of the policy. Such a construction would subject an insurer to commonlaw and statutory liability for failing to defend the insured against a third-party claim that
has not been alleged, despite policy language limiting the duty to defend to claims that
have been alleged.

-

************************************************************************
************ ************************************************************

-

-

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 103

In re Labatt Food Services, L.P., --- S.W.3d ----,2009 WL 353524, 52 Tex. Sup. Ct. J.
352 (2113/2009).
Justice Johnson

-

-

-

-

Arbitration Clause Signed By Decedent Binds Wrongful Death Beneficiaries.
The arbitration provision in an agreement between a decedent and his employer requires
the employee's wrongful death beneficiaries to arbitrate their wrongful death claims
against the employer even though they did not sign the agreement. Wrongful death
beneficiaries are generally bound by a decedent's pre-death contractual agreement
because of the derivative nature oftheir claims.
Courts Determine Gateway Matter Of Whether Nonsignatory Claim Is Subject To
Arbitration.
Under the FAA, whether an arbitration agreement binds a nonsignatory is a gateway
matter to be determined by courts rather than arbitrators, unless the parties clearly and
unmistakably provide otherwise. As this arbitration agreement is silent about who is to
determine whether particular persons are bound by the agreement, courts, rather than the
arbitrator, should determine the issue. The courts apply Texas procedural rules in
determining whether nonsignatories are bound by an arbitration agreement. It is not
entirely clear, however, if state or federal substantive law governs whether nonsignatories
are bound to arbitrate under an agreement subject to the FAA. Under the FAA, state law
generally governs whether a litigant agreed to arbitrate, and federal law governs the scope
of the arbitration clause. But whether nonsignatories are bound by an arbitration
agreement is a distinct issue that may involve either or both of these matters. The FAA
does not specify whether state or federal law governs, and the United States Supreme
Court has not directly addressed the issue. Pending an answer from the United States
Supreme Court, the Texas Courts will apply state substantive law and endeavor to keep it
consistent with federal law.
Arbitration Agreement. Effect Of Indemnity Clause, As A Waiver Of A Cause Of
Action, Is To Be Determined By Arbitrator.
The beneficiaries challenge the validity of the entire agreement on the basis that the
indemnification clause in paragraph three is in substance a pre-injury waiver that violates
Labor Code section 406.033(e). They, however, specify that their challenge to the
agreement's validity "is not dependent on or directed solely to the arbitration provision."
Instead, they argue that the contract as a whole, including its arbitration clause, is
rendered invalid by the allegedly illegal indemnity clause because the clause is not
severable. There are two types of challenges to an arbitration provision: (1) a specific
challenge to the validity of the arbitration agreement or clause, and (2) a broader
challenge to the entire contract, either on a ground that directly affects the entire
agreement, or on the ground that one of the contract's provisions is illegal and renders the
whole contract invalid.
A comt may determine the first type of challenge, but a
challenge to the validity of the contract as a whole, and not specifically to the arbitration
The current case presents a challenge of the second
clause, must go to the arbitrator.
type: a broad challenge to the entire contract on the ground that one of the contract's

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 104

-

-

-

-

proviSions is illegal and renders the whole contract invalid, but not specifically
challenging the arbitration clause. The beneficiaries in this case challenge the contract on
the ground that an illegal clause renders the whole contract void. But, unless a challenge
is to the arbitration clause or arbitration agreement itself, the question of a contract's
validity is for the arbitrator and not the courts. Accordingly, the beneficiaries' challenge
to the validity of the agreement must be dete1mined by the arbitrator. Because of this
disposition of this case, the Court does not address Labatt's altemative argument that the
FAA preempts Labor Code section 406.033(e) to the extent the state statute would
prevent or restrict enforcement of the arbitration provision.
Note: The Labor Code provides that an employee's cause of action against a
non-subscriber employer to recover damages for personal injuries or death
sustained in the course and scope of employment
may not be waived by an employee before the employee's injury
or death. Any agreement by an employee to waive [such] a cause
of action .. . before the employee's injury or death is void and
unenforceable.
TEX. LAB. CODE§ 406.033(e).

********************************************** *** ***********************
************************************************************************

-

-

-

Old Farms Owners Ass 'n, Inc. v. Houston Independent School Dist. , --- S.W.3d ----, 2009
WL 353522, 52 Tex. Sup. Ct. J. 358 (2/13/2009).
Per Curiam

Nonsuit And Refiling Continued Suit For Purpose Of Statutory Savings Clause For
Pending Suits.
This is a delinquent tax suit. The 200 1 amendments to section 33.04 of the Tax Code do
not apply to a case originally filed in 1999, nonsuited, and then refiled in 2002. These
amendments altered certain penalty provisions. The delinquency suit was originally filed
in 1999, nonsuited, and then refiled in 2002, following the amendments. The first
sentence of the clause states that the amendment "does not apply to taxes subject to a
delinquent tax suit pending before [September 1, 2001]." Although the 1999 case was
nonsuited, it was a suit that was pending before September 1, 2001. Additionally, the
Trust's delinquent tax was "the subject of a collection suit filed before the effective date
of [the legislation]," as discussed in the last sentence of the clause. Although the 1999
suit ended in a nonsuit that does not change the fact that it was a collection suit filed
before the effective date of the legislation. A dismissal is in no way an adjudication of
the rights of parties; it merely places the parties in the position that they were in before
the court's jurisdiction was invoked just as if the suit had never been brought. While this
rule is not modified, it is recognized that this savings clause is broad enough to apply to

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 105

any collection suit filed prior to the revisions in the law, even if the suit was eventually
nonsuited.

************************************************************************
***************************** *******************************************
In re Coppock,--- S.W.3d ----, 2009 WL 353499, 52 Tex. Sup. Ct. J. 361 (2/13/2009).
Justice O'Neill

-

-

-

Injunctive Judgment Must Contain Decretal Language To Support Contempt
Order If Judgment Violated.
Raymond and Gayle divorced in October 2003. The trial court's final decree of divorce
incorporated a mediated settlement agreement between the parties, which, among other
things, permanently enjoined them from communicating with each other "in a coarse or
offensive manner." The judgment specifically provides: "The Court finds that a
pe1manent injunction of the parties should be granted . . . .The permanent injunction
granted below shall be effective immediately and shall be binding on both parties ....
Communicating with the other party in person or in writing in vulgar, profane, obscene,
or indecent language or in a coarse or offensive manner." Over the next two years, Gayle
communicated numerous times with Raymond via telephone and e-mail in a manner that
he considered violative of the decree. Raymond filed a motion to enforce the decree,
which the trial court granted. When Gayle failed to repo1t for incarceration, the court
issued a writ of capias for her arrest. The court of appeals - treating Gayle's petition for
writ of habeas corpus as a petition for writ of mandamus - denied relief. Held: Writ of
habeas corpus is granted, because the underlying judgment in this case lacks decretal
language necessary for enforcement by contempt. Civil contempt in Texas is the process
by which a court exerts its judicial authority to compel obedience to some order of the
court. Command language is essential to create an order enforceable by contempt. Merely
incorporating an agreement into the recitals of a divorce decree, without a mandate from
the court, is not sufficient. In this case, the divorce decree does not contain sufficient
language to advise the parties that refraining from or engaging in the described conduct is
mandatory. Although reciting that the injunction is "binding on both parties," the
judgment does not order or mandate compliance. The order refers to a "permanent
injunction granted below," and lists twenty-one different behaviors, but there is no
injunctive language commanding or ordering the parties not to engage in the described
conduct. A later paragraph states clearly that "GAYLE E. COPPOCK is permanently
enjoined from [other described activity]," but the portion of the order concerning "coarse
and offensive" communication has no similar language. Moreover, the judgment itself
states that the parties' agreement, as recited therein, is "enforceable as a contract."
Without decretal language making clear that a party is under order, agreements
incorporated into divorce decrees are enforced only as contractual obligations.
Contempt Orders Must Set Out Terms Of Compliance.
To be enforceable by contempt, an order must set out the terms of compliance in clear
and unambiguous terms. Moreover, a person cannot be sentenced to confinement unless
the order unequivocally commands that person to perform a duty or obligation.
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09- By L. Wayne Scott Page 106

************************************************************************
************************************************************************
TXI Operations, L.P. v. Perry, --- S.W.3d ----, 2009 WL 490059 (Tex.), 52 Tex. Sup. Ct.
J. 388 (Tex. 2/27/2009)
Opinion By: Justice Green; Justice Hecht filed a dissenting opinion, in which Justice
Medina and Justice Willett joined.
Premises Liability. Speed Limit Sign Inadequate Warning Of Pothole.
An invitee truck driver drove through a pothole at a cattle guard several times, claiming
injury on one of his last trips, and sued the landowner for its failure to adequately warn of
the danger. H eld: A fifteen miles-per-hour speed limit sign, posted near the pothole, was
not an adequate warning, as a matter of law. Negligence is commonly a question of fact
unless the evidence establishes a complete absence of negligence, as a matter of law.
Here, it does not. A "be careful" warning might be some evidence that the premises
owner was not negligent, but it is not conclusive in a situation such as this, where the
posted speed-limit sign was only a general instruction; it neither informed the driver of
road hazards generally, nor did it identify the particular hazard that TXI now says the
sign was meant to warn against. An alternative to providing an adequate warning would
have been for TXI to repair the pothole, so as to make the condition reasonably safe, as a
matter of law. But the record does not reflect that TXI took this action. TXI does not
argue that the pothole did not constitute an unreasonably dangerous premises condition,
or that the condition was open and obvious.

-

Premises Liability. Duty Of Owner To Warn.
Premises owners and occupiers owe a duty to keep their premises safe for invitees against
known conditions that pose unreasonable risks of hann. The duty is to take whatever
action is reasonably prudent under the circumstances, to reduce or to eliminate the
unreasonable risk from that condition. The existence of this duty is a question of law for
the court. When such a duty is owed, the premises owner or occupier must either
adequately warn of the dangerous condition or make the condition reasonably safe.

Charge On Failure To Warn In Premises Liability Case.
In a premises liability case, such as this, the defendant's negligence is determined by
asking whether the defendant "exercised reasonable care to reduce or to eliminate the
risk" created by the premises defect.

-

-

************************************************************************
************************************************************************
Retamco Operating, Inc. v. Republic Drilling Co.,--- S.W.3d ----, 2009 WL 490063
(Tex.), 52 Tex. Sup. Ct. J. 395 (Tex. 2/27/2009).

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 107

Opinion By: Justice Green

-

-

Personal Jurisdiction Established By Purchase Of Property In Texas.
Retamco Operating, Inc. (ROI), a Texas corporation, sued Paradigm Oil, Inc. (Paradigm),
another Texas corporation, in a Texas district court, over unpaid royalties, related to oil
and gas interests in several Texas counties. After a finding of discovery abuse, sanctions
were assessed against Paradigm, and the trial court entered a $16 million default
judgment against Paradigm. Following this interlocutory judgment, ROI amended its
petition to include a claim against Republic Drilling Company (Republic), a California
corporation, for violation of the Uniform Fraudulent Transfer Act, Tex. Bus. & Com.
Code§ 24.001-.013. ROI claimed that during the pendency of the litigation, Paradigm
assigned to Republic a 72% interest in Paradigm's oil and gas wells and leases in Fayette
County and a 72% interest in an option to acquire an interest in a lease in Dimmit and
Webb Counties. ROI alleged that these transfers were fraudulent, and that they led to
Paradigm's insolvency, rendering it unable to satisfy ROI's claims. In response to the
amended petition, Republic filed a special appearance, arguing that it does not have
minimum contacts with Texas, and that, even if it did, ROI's cause of action did not arise
from, or relate to, those contacts. The trial court denied Republic's special appearance,
making no findings of fact or conclusions of law. The court of appeals reversed, holding
that Republic is not subject to personal jurisdiction in Texas. 2007 WL 913206, *6-7.
Held: Reversed and remanded. By its actions Republic subjected itself to the
jurisdiction of Texas courts. Republic's contacts with Texas were purposeful, not
random, fortuitous, or attenuated. The purchase of real property in Texas does not
establish a single contact, but, rather, the purchase and ownership of real property
could involve many contacts over a long period of time, which would carry with it
certain continuing obligations. Should Republic ever wish to enforce rights under its
interest in Texas oil and gas leases and wells, it is this state where those rights can be
enforced, not California. Republic's contacts with Texas were also not the result of the
unilateral actions of a third party. Republic was a willing participant in a transaction with
an affiliated Texas company to purchase Texas real property. Lastly, Republic has
sought a benefit, advantage or profit. The assignment gave Republic valuable assets in
Texas, including the right to enforce warranties and covenants related to the real
property.

-

-

Due Process Requirements For Personal Jurisdiction (Specific Or General).
Under the Texas long-arm statute, the plaintiff has the initial burden to plead sufficient
allegations to confer jurisdiction. The defendant, seeking to avoid being sued in Texas,
then has the burden to negate all potential bases for jurisdiction pled by the plaintiff.
When, as here, the trial court does not make findings of fact and conclusions of law in
support of its ruling, all facts necessary to support the judgment, and supported by the
evidence, are implied.
Personal Jurisdiction. Grounds. Long Arm Requirements.

-

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 108

Texas courts may assert in personam jurisdiction over a nonresident, if (1) the Texas
long-arm statute authorizes the exercise of jurisdiction, and (2) the exercise of
jurisdiction is consistent with federal and state constitutional due-process guarantees.
Under constitutional due-process analysis, personal jurisdiction is achieved, when (1) the
non-resident defendant has established minimum contacts with the forum state, and (2)
the assertion of jurisdiction complies with "traditional notions of fair play and substantial
justice. A defendant establishes minimum contacts with a state when it purposefully
avails itself of the privilege of conducting activities within the forum state, thus invoking
the benefits and protections of its Jaws. The defendant's activities, whether they consist
of direct acts within Texas or conduct outside Texas, must justify a conclusion that the
defendant could reasonably anticipate being called into a Texas court. A nonresident's
contacts can give rise to either specific or general jurisdiction. General jurisdiction arises
when the defendant's contacts with the forum are continuous and systematic. Specific
jurisdiction, which is alleged here, arises when (1) the defendant purposefully avails itself
of conducting activities in the forum state, and (2) the cause of action arises from or is
related to those contacts or activities. In a specific jurisdiction analysis, the courts focus
on the 'relationship among the defendant, the forum, and the litigation.

-

-

-

Personal Jurisdiction. Purposeful Availment. Three Issues Considered.
Three issues are considered in determining whether a defendant purposefully availed
itself of the privilege of conducting activities in Texas: First, only the defendant's
contacts with the forum are relevant, not the unilateral activity of another party or a third
person. Second, the contacts relied upon must be purposeful rather than random,
fortuitous, or attenuated. Thus, sellers who reach out beyond one state and create
continuing relationships and obligations with citizens of another state are subject to the
jurisdiction ofthe latter in suits based on their activities. Finally, the defendant must seek
some benefit, advantage or profit by availing itself of the jurisdiction. Additionally, the
minimum-contacts analysis is focused on the quality and nature of the defendant's
contacts, rather than their number. Here, these considerations lead to the conclusion that
Republic purposefully availed itself of the privilege of conducting activities in Texas.
Personal Jurisdiction. Defendant Must Purposefully Avail Itself Of Texas Law, and
The Action Must Arise, Or Relate To Texas.
Purposeful availment alone will not support an exercise of specific jurisdiction, unless the
defendant's liability arises from, or relates to, the forum contacts. The courts look for a
substantial connection between the defendant's forum contacts and the operative facts of
the litigation. Republic is alleged to have received transfer of Texas real property from a
Texas resident, during the pendency of a Texas suit, for the purpose of defrauding a
Texas resident. As a result of this transaction, assets ROI may have recovered from
Paradigm are now in the possession of Republic. These contacts are sufficient to
demonstrate that this alleged tort occurred, at least, in part, in Texas. A fraudulent
transfer under the UFT A is a tort. A nonresident does business in this state if the
nonresident commits a tort in whole or in part in this state. While the assignment will be
an operative fact, the real propetty itself will also be an operative fact, or at the very least,
will have a substantial connection to the operative facts. Without an asset, no fraudulent
transfer can occur under the UFTA. Here, the Texas oil and gas interests are the assets.
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 109

Proof that these assets were transferred and an assessment of their value will be essential
to the UFTA analysis; without that proof, the UFTA claim fails. Republic is alleged to
have received transfer of Texas real property from a Texas resident, during the pendency
of a Texas suit, for the purpose of defrauding a Texas resident. As a result of this
transaction, assets ROI may have recovered from Paradigm are now in the possession of
Republic. These contacts are sufficient to demonstrate that this alleged tort occurred, at
least, in part, in Texas.

************************************************************************
************************************************************************
Retamco Operating, Inc. v. McCallum, --- S.W.3d ----, 2009 WL 490088 (Tex.), 52 Tex.
Sup. Ct. J. 404 (Tex. 2/27/2009).
Opinion By: Per Curiam

-

Personal Jurisdiction Established By Purchase Of Property In Texas.
Retamco Operating, Inc. (ROI), a Texas corporation, sued Paradigm Oil, Inc., another
Texas corporation, over unpaid royalties involving Texas oil and gas interests. During the
litigation, Paradigm transferred a portion of its Texas oil and gas interests to Douglas B.
McCallum, LLC (DMLLC), a Colorado company. The contract for the transfer of the
interests was executed in Colorado. ROI then sued DMLLC, alleging that the transfer of
the interests was in violation of the Texas Uniform Fraudulent Transfer Act. DMLLC
filed a special appearance, arguing that because the parties executed the contract in
Colorado, the exercise of personal jurisdiction over DMLLC was not warranted. The
trial court granted the special appearance and the court of appeals affirmed. _ S.W.3d
at _ . Held: Reversed and remanded, for the reasons stated in Retamco Operating, Inc.
v. Republic Drilling Co., _
S.W.3d _ ,(Tex. 2009).

************************************************************************
************************************************************************
In Re Bank ofAmerica, N. A., --- S.W.3d ----, 2009 WL 490065 (Tex.), 52 Tex. Sup. Ct.
J. 400 (Tex. 2/27/2009).
Opinion By: Per Curiam. Justice Johnson did not participate in the decision.

-

-

Waiver Of Jury Trial Is Enforceable & Does Not Impose A Presumption Against
Contractual Jury Waiver.
This is an original mandamus proceeding. The holding in In re Prudential Ins. Co. of
Am., 148 S.W.3d 124,30- 33 (Tex. 2004}-which held that a contractual waiver ofajury
trial is enforceable--did not create a presumption against waiver that places the burden
on the party seeking enforcement to prove that the opposing party knowingly and
voluntarily agreed to waive its constitutional right to a jury trial. A conspicuous
provision in a contract is prima facie evidence of a knowing and voluntary waiver, and
shifts the burden to the opposing party to rebut it.
Waiver Of Trial By Jury, Here, Meets Conspicuous Requirement.
Su mma r ies of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 110

-

Section 1.20l(b)(l0) of the Texas Business and Commerce Code provides that
"conspicuous ... means so written, displayed, or presented that a reasonable person
against which it is to operate ought to have noticed it." In this case, the addendum is only
two pages long, and each of the twenty provisions are set apart by one line, and numbered
individually. Five of the twenty provisions included balded introductory captions similar
to the waiver provision in Prudential, and the "Waiver of Trial By Jury" caption is one of
the five. Furthermore, the introductory caption is hand-underlined, as is the word
"waiver", and the words "trial by jury" within the provision.
Contract Presumed To Have Been Read In The Absence Of A Showing Of Fraud.
The general rule is that, in the absence of a showing of fraud or imposition, a party's
failure to read an instrument before signing it is not a ground for avoiding it. Thus, when
no fraud or imposition with regard to the waiver is alleged, a conspicuous waiver of trial
by jury is presumed to be knowing and voluntary.
Contract For Waiver Of Jury Trial Enforced Unless Clause, Itself, A Product Of
Fraud Or Coercion.
General allegations of fraud are not sufficient to shift the burden of proof to the enforcing
party to prove that the opposing party knowingly and voluntarily waived the right to jury
trial. The purpose of jury waiver provisions-to control resolution of future disputeswould be almost entirely defeated if the assertion of fraud common to such disputes were
enough to bar enforcement. Contractual jury-waiver provisions should be enforced, just
as are just arbitration and forum-selection clauses, even if they are part of an agreement
alleged to have been fraudulently induced, as long as the specific clauses were not
themselves the product of fraud or coercion.

****** ******************************************************************
************************************************************************
In Re Lovito-Nelson, --- S.W.3d ----, 2009 WL 490067 (Tex.), 52 Tex. Sup. Ct. J. 405
(Tex. 2/27/2009).

Opinion By: Per Curiam

-

-

-

New Trial Grant Must Be Written & Signed. Scheduling Order For Trial On
Merits Insufficient.
An order granting a new trial, or modifying, correcting or reforming a judgment, must be
written and signed. A trial judge's oral pronouncement, granting a motion for new trial,
together with a docket entry, indicating that such motion was granted, and a scheduling
order setting various pretrial deadlines, and a final trial date and time, cannot substitute
for a written order required by Tex. R. Civ. P. 329b.

************************************************************************
**************** ********************************************************

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 111

In Re Jindal Saw Limited, --- S.W.3d ----, 2009 WL 490082 (Tex.), 52 Tex. Sup. Ct. J.
407 (Tex. 2/27/2009).
Opinion By: Per Curiam

-

Arbitration Agreement Between Decedent & Employer Require Wrongful Death
Beneficiaries To Arbitrate Claims Against Employer.
An arbitration agreement between a decedent and his employer requires the employee's
wrongful death beneficiaries to arbitrate their claims against the employer.

************************************************************************
************************************************************************
Gurkoffv. Jersak, --- S.W.3d ----, 2009 WL 490081 (Tex.), 52 Tex. Sup. Ct. J. 403 (Tex.
2/27/2009).
Opinion by Justice Brister, joined by Justice Hecht, dissenting from the denial of the
petition for review.

Dissent From Denial Of Petition For Review. Trial Court Refused To Impose Costs
On Attorneys Who Failed To File An Expert Report.
Rosemary Jersak sued Dr. Gurkoff for allegedly operating on the wrong finger of her
right hand. Dr. Gurkoff denied that he operated on the wrong finger, and asserted that
Jersak consented in writing to the operation on the specific finger, on which he performed
the procedure. Jersak never filed an expert report. Dr. Gurkoff sought dismissal and
costs; the trial court sat on the motion and ordered mediation. More than a year after
filing, there was still no expert report when Jersak died from unrelated causes. The trial
court granted Dr. Gurkoff dismissal, but refused to award attorney's fees, because the
defendant sought recovery from the plaintiffs attorney rather than the plaintiff who had
died without assets. The Supreme Court denied the petition for review. Justice Brister,
joined by Justice Hecht dissent. "Generally, trial judges should hesitate to impose
sanctions on an attorney lest they chill zealous representation. But the Legislature found
that such hesitation was driving physicians from Texas and patients from medical care
they needed. When an attorney is responsible for filing a suit without expert support, it is
both illogical and wasteful to insist that the defendant pursue a plaintiff with no assets.
Accordingly, I would reverse the court of appeals' opinion and order the trial court to
assess sanctions against Jersak's attorneys."

-

-

************************************************************************
************************************************************************
SIGNIFICANT DECISION
Phillips v. Bramlett, --- S.W.3d ----, 2009 WL 567889 (Tex.3/26/2009)
Justice Medina; dissenting opinion by Justice O'NEILL, joined by Chief Justice
JEFFERSON, Justice HECHT, and Justice GREEN.

Sum maries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 112

-

-

Medical Malpractice Insurance. Stowers Doctrine Applies Under Art. 4905i,
Se~tion 11.02 (c). Doctor Protected By Cap Under Art. 4501, Section 11.02 (a).
Bramlett, died from post-operative complications, following a hysterectomy. The
procedure was performed at Covenant Medical Center in Lubbock by Dr.Phillips.
Bramlett's survivors sued Dr. Phillips and the medical center. The medical center settled
for $2.3 million; the case against the doctor proceeded to trial. A jury found the doctor
and medical center negligent, awarding $11 million in damages and apportioning
responsibility: seventy-five percent to the doctor and twenty-five percent to the medical
center. The jury also found the doctor grossly negligent, awarding $3 million in punitive
damages. The trial court rendered judgment against the doctor after crediting the medical
center's settlement. The trial court also denied the doctor's request to limit his liability,
under the Medical Liability and Insurance Improvement Act of 1977, formerly
Tex.Rev.Civ.Stat. art. 4590i. The trial court here applied the Stowers exception to permit
the rendition of a judgment against the physician, in excess of the statutory cap. The
court of appeals affirmed, concluding that the excess judgment was permissible, because
there was evidence that the insurer negligently failed to settle the claim against its
insured, the physician. 258 S.W.3d 158. In other words, the court concluded that the
statutory Stowers exception waived the liability cap for both the insurer and the insured
physician. Held: Reversed and remanded. The Stowers exception does not apply to the
physician. The Stowers exception of article 4590i, section 11.02(c), expressly applies to
insurers only, and does not waive the liability cap of section 11.02(a). Section 11.02(a)
caps the liability of physicians (and other health care providers) above a fixed amount,
adjusted for inflation, while the second, section 11.02(c), creates an exception to this cap,
when the physician's insurer has negligently failed to settle a claim within the limits of
the physician's liability policy. Both the statutory cap and its exception can be applied as
written by confonning the judgment against the physician to section 11.02(a)'s cap, and
reserving for another case any suit against the insurer under section 11.02( c)'s Stowers
exception. The judgment here against the physician on the underlying health care
liability claim may not exceed the statutory cap, and the court of appeals accordingly
erred in affirming the excess judgment in this case. [Note that the Court, in a footnote
adds that: "The Medical Liability Insurance Improvement Act, article 4590i of the
revised civil statutes, was repealed by the 78th Legislature in 2003, after the filing of this
lawsuit. The cap in section 11.02 was, however, carried forward in section 74.303(a) of
the Texas Civil Practice and Remedies Code. The Stowers exception in section 11.02(c)
was not carried forward, but rather replaced by section 74.303(d) which expressly
provides that the insurer can now use the cap to limit its liability."]

Insurance. The Stowers Doctrine.
The common law, as indicated in G.A. Stowers Furniture Co. v. Am. Indem. Co., 15 S.W
.2d 544 (Tex.1929), imposes a duty on liability insurers to settle third-party claims
against their insureds when reasonably prudent to do so. For the duty to arise, there must
be coverage for the third-party's claim, a settlement demand within policy limits, and
reasonable terms, such that an ordinarily prudent insurer would accept it, considering the
likelihood and degree of the insured's potential exposure to an excess judgment. When
these conditions coincide, and the insurer's negligent failure to settle results in an excess
Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 113

judgment against the insured, the insurer is liable under the Stowers Doctrine, for the
entire amount of the judgment, including that part exceeding the insured's policy limits.

-

Jury Argument Asking Jury To Send A Message W as Not Fundamental Error.
During final argument, in this medical malpractice case, plaintiffs' counsel stated: "For
years, in this very conservative community, juries have been very liberal with the doctors,
very liberal. What I mean is: Their verdicts didn't send much of a message at all." The
doctor's counsel immediately objected with the following: "Judge, I object to any
testimony about the propriety of other trials and the verdicts reached by other juries in
Lubbock." The trial court responded: "This is his argument, and it is not testimony." The
doctor's counsel did not offer any further explanation of his objection, and plaintiffs'
counsel thereafter continued to argue that the jury needed to send a message to the
doctors of Lubbock, without further objection. Held: Any error in the jury argument
was not preserved, because the trial court' s response indicated that it did not understand
the objection, and counsel made no further attempt to clarify the court's understanding, or
obtain a ruling on his objection. The argument was not fundamental error. Incurable
argument is that which strikes at the very core of the judicial process. The party claiming
incurable harm must persuade the court that, based on the record as a whole, the
offensive argument was so extreme that a juror of ordinary intelligence could have been
persuaded by that argument to agree to a verdict contrary to that to which he would have
agreed but for such argument. A finding of incurable harm typically involved
unsubstantiated attacks on the integrity or veracity of a party or counsel, appeals to racial
prejudice, or the like. Counsel's plea to send a message to the doctors was not of this
same class of impropriety, and, considering the record as a whole, not so extreme as to be
incapable of cure.

Summaries of the opinions of the Texas Supreme Court 3/28/08-3/27/09 - By L. Wayne Scott Page 114

Files

Collection

Citation

L. Wayne Scott, “CLE: 2009: Texas Supreme Court Updates and Trends,” St. Mary's Law Digital Repository, accessed February 22, 2017, http://lawspace.stmarytx.edu/item/STMU_HomecomingCLE2009Scott.

Document Viewer