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SUPREME COURT UPDATE
Presented by
HON. SCOTT A. BRISTER
Justice
Supreme Court of Texas
P.O. Box 12248
Austin, TX 78711
512/463-1341
512/463-1345
scott.brister@courts.state.tx.us
Written by
HON. PRISCILLA R. OWEN
Justice
The Supreme Court of Texas
JULIE BUCHANAN
OSLER MCCARTHY
Staff Attorneys
The Supreme Court of Texas
CASEY LOW
MICHEL WALTER
Law Clerks
The Supreme Court of Texas
Special thanks to all the Staff Attorneys and Law Clerks
at the Supreme Court of Texas for their substantial contributions.
State Bar of Texas
PRACTICE BEFORE THE TEXAS SUPREME COURT
April 16, 2004
Austin
CHAPTER 11
HO N . S COTT B RISTER
JUSTICE, SUPREME COURT OF TEXAS
Education
Duke University (1973-77) A.B., History, Summa Cum Laude, Phi Beta Kappa
Harvard Law School (1977-80) J.D., Cum Laude
Employment
Supreme Court of Texas—Justice (2003-present)
• Appointed by Gov. Rick Perry
Fourteenth Court of Appeals—Chief Justice (2001-2003)
• Appointed by Gov. Rick Perry
• Re-elected in November 2002 to six- year term
First Court of Appeals—Justice (2001)
• Elected in November 2000 to six- year term
234th District Court—Judge (1989-2000)
• Appointed by Gov. Bill Clements
• Re-elected in 1990, 1994, and 1998 to four- year terms
Andrews & Kurth (1981-1989) attorney handling primarily commercial and insurance litigation
Supreme Court of Texas (1980-1981) briefing attorney to Chief Justice Joe Greenhill
Professional Activities
Board Certified--Texas Board of Legal Specialization--Civil Trial Law (1989-present)
Board Certified--Texas Board of Legal Specialization--Personal Injury Trial Law (1992-present)
Texas Supreme Court Rules Advisory Committee (1993-2003)
Texas Supreme Court Jury Task Force (1996-1997)
Texas Supreme Court Sanctions Task Force (1991-1993)
Administrative Judge, Civil Trial Division, Harris County District Courts (1998-1999)
Chair, Judges Jury Committee, Harris County District Courts (1996-1997)
Fellow, Texas Bar Foundation Fellow (1991-present), Houston Bar Foundation (1992-present)
College of the State Bar of Texas (1990-present)
Articles
Brister, Boyd, & Presby, TEXAS PRETRIAL PRACTICE (James Publishing 2000)
Is it Time to Reform Our Courts of Appeals?, HOUSTON LAWYER, Mar-Apr. 2003
Democracy Strikes Out, TEXAS LAWYER, March 10, 1997
The O.J. Trial: What We Learned, HOUSTON CHRONICLE, February 9, 1997
Speed Up Pace of Texas Justice, HOUSTON CHRONICLE, July 23, 1995
Lonesome Docket: Using the Texas Rules to Shorten Trials, 46 BAYLOR L. REV. 525 (1994)
Living With Shorter Trials, TEXAS LAWYER, October 11, 1993
Proving Attorneys Fees in Texas, 24 ST. MARY'S LAW JOURNAL 313 (1993)
Community Activities
Adjunct Professor, University of St. Thomas Business School (1996-1998)
Chair, Harris County Republican Judicial Qualifications Screening Committee (1991)
Delegate, State Republican Convention (1982, 1994, 1998)
Personal
Born January 8, 1955 in Waco, Texas
Married to Julia Upton Brister
Daughters: Beth Anne (15), Susannah (12), Sarah (10), and Mattie (7)
Supreme Court Update Chapter 11
TABLE OF CONTENTS
I. SCOPE OF THIS ARTICLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. ADMINISTRATIVE LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A. Appeal/District Court Jurisdiction/Field Rules . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. Tex. R.R. Comm’n v. WBD Oil & Gas Co., 104 S.W.3d 69 (Tex. February 13, 2003) [01-0177]. . . . . 1
B. License Revocation/Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 81 S.W.3d 470 (Tex.
App.–Houston [1st Dist.] 2002), pet. for review granted, 46 Tex. Sup. Ct. J. 527 (March 27, 2003) [02-
0728]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
C. Public Utility Commission/Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. In re Entergy Corp. & Entergy Gulf States, Inc., argument granted on pet. for writ of mandamus, 46
Tex. Sup. Ct. J. 1058 (August 28, 2003) [03-0024]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
D. Worker’s Compensation/Medical Fee Guidelines/Promulgation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1. Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex., 80 S.W.3d 66 (Tex. App.–Austin 2002),
pet. for review granted, 46 Tex. Sup. Ct. J. 617 (May 1, 2003) [02-0804]. . . . . . . . . . . . . . . . . . . . . 2
III. ARBITRATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
A. Enforcement/Employer Reserving Right To Abolish Or Modify Agreement . . . . . . . . . . . . . . . . . . . . . . . . 2
1. J.M. Davidson Inc. v. Webster, S.W.3d , Tex. Sup. Ct. J. (December 31, 2003) [01-0774]. . . 2
B. Enforcement/Fraudulent Inducement Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. In re J.D. Edwards World Solutions Co., 87 S.W.3d 546 (Tex. October 10, 2002) [01-0630]. . . . . . . . 3
C. Modification of Arbitrator’s Decision . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. CVN Group, Inc. v. Delgado, 95 S.W.3d 234 (Tex. December 31, 2002) [01-0682]. . . . . . . . . . . . . . 3
D. Modification of Award/Evident Miscalculation or Mistake . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. Callahan & Assocs. v. Orangefield Indep. Sch. Dist., 92 S.W.3d 841 (Tex. December 19, 2002) [01-
0993]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
E. Nonsignatories To Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1. In re Weekley Homes, L.P., argument granted on pet. for writ of mandamus, 46 Tex. Sup. Ct. J. 1204
(September 25, 2003) [03-0309]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
F. Scope of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1. In re First Tex. Homes Inc., S.W.3d , 47 Tex. Sup. Ct. J. 97 (November 14, 2003) [02-0876]. . . . 4
IV. ATTORNEYS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. Appointments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1. Gibson v. Tolbert, 102 S.W.3d 710 (Tex. March 27, 2003) [02-0190]. . . . . . . . . . . . . . . . . . . . . . . . 4
B. Clients/Fiduciary Duty/Lawyer as City Councilman . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1. Joe v. Two Thirty Nine Joint Venture, 60 S.W.3d 896 (Tex. App.–Dallas 2001), pet. for review granted,
46 Tex. Sup. Ct. J. 434 (February 13, 2003) [02-0218]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
C. Disciplinary Proceedings/State Bar of Texas/Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1. In re State Bar of Tex. [02-0293], consolidated with In re State Bar of Tex. [02-0294], In re Bd. of
Disciplinary Appeals [02-0343], and In re Bd. of Disciplinary Appeals [02-0344], 113 S.W.3d 730 (Tex.
July 3, 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
D. Fees/Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1. S. Union Co. v. City of Edinburg S.W.3d , Tex. Sup. Ct. J. (October 31, 2003) [01-0785]. . . 5
V. BANKS AND BANKING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. Forgery/Notice to Bank . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1. Cmty. Bank & Trust, S.S.B. v. Fleck, 107 S.W.3d 541 (Tex. December 5, 2002) [00-1122]. . . . . . . . . 6
VI. BATTERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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A. Parental Consent/Resuscitation of Premature Infant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1. Miller v. HCA, Inc., 118 S.W.3d 758 (Tex. September 30, 2003) [01-0079]. . . . . . . . . . . . . . . . . . . . 6
VII. BENCH WARRANT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. Abuse of Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1. In re Z.L.T., S.W.3d , 47 Tex. Sup. Ct. J. 113 (November 21, 2003) [02-0474]. . . . . . . . . . . . . . 6
VIII. BILL OF REVIEW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Trespass to Try Title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. August 28, 2003) [01-0430]. . . . . . . . . . . . . . . 7
IX. CLASS ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Certification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675 (Tex. October 31, 2002) [00-1162]. . . . . . . . . . . . . 7
2. Compaq Computer Corp. v. LaPray, 79 S.W.3d 779 (Tex. App.–Beaumont 2002), pet. for review
granted, 46 Tex. Sup. Ct. J. 762 (June 5, 2003) [02-0705]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
B. Commonality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1. Union Pac. Res. Group, Inc. v. Hankins, 111 S.W.3d 69 (Tex. July 3, 2003) [01-0836]. . . . . . . . . . . . 9
C. Opt Out Procedures/Municipalities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1. City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750 (Tex. June 26, 2003) [02-0038]. . . . 9
X. CONSTITUTIONAL LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
A. Equal Rights Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1. Bell v. The Low Income Women of Tex., 95 S.W.3d 253 (Tex. December 31, 2002) [01-0061]. . . . . . 9
B. First Amendment/Free Speech/Texas Highway Beautification Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
1. Tex. Dep’t of Transp. v. Barber, 111 S.W.3d 86 (Tex. July 3, 2003) [01-0414]. . . . . . . . . . . . . . . . 11
C. Preservation of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1. In re L.M.I., 119 S.W.3d 707 (Tex. September 18, 2003) [02-0244]. . . . . . . . . . . . . . . . . . . . . . . . 12
D. Retroactive Laws . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
1. In re A.V., 113 S.W.3d 355 (Tex. July 3, 2003) [01-0706]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
E. School Finance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
1. W. Orange-Cove Consol. I.S.D. v. Alanis, 107 S.W.3d 558 (Tex. May 29, 2003) [02-0427]. . . . . . . . 13
XI. CONTRACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
A. Breach/Exculpatory Clauses/Self Dealing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1. Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240 (Tex. December 31, 2002) [01-0211]. . . . . . . 14
B. Claim by Contractor on Subcontractor’s Behalf/Privity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1. Interstate Contracting Corp. v. City of Dallas, certified question accepted, 46 Tex. Sup. Ct. J. 486
(March 6, 2003) [03-0152]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
C. Consideration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
1. 1464-Eight Ltd. v. Joppich, 96 S.W.3d 614 (Tex. App.–Houston [1st Dist.] 2002), pet. for review
granted, 47 Tex. Sup. Ct. J. 127 (December 12, 2003) [03-0109]. . . . . . . . . . . . . . . . . . . . . . . . . . 14
D. Lease/Ambiguity/Implied Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
1. Universal Health Servs., Inc. v. Renaissance Women’s Ctr. of Austin, L.P., S.W.3d , 47 Tex. Sup.
Ct. J. 20 (September 30, 2003) [02-0193]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
XII. DAMAGES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
A. Broad-Form Submissions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1. Harris County v. Smith, 96 S.W.3d 230 (Tex. December 19, 2002) [01-0531]. . . . . . . . . . . . . . . . . . 16
B. Expert Calculations/Reliability/Gas Well . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1. Kerr-McGee Corp. v. Helton, 2002 WL 110433 (Tex. App.–Amarillo 2002), pet. for review granted, 46
Tex. Sup. Ct. J. 49 (October 24, 2002) [02-0356]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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C. Loss of Consortium by Parents/Non-Deadly Injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
1. Roberts v. Williamson [01-0766], consolidated with Williamson v. Roberts [01-0765], 111 S.W.3d 113
(Tex. July 3, 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
D. Measurement/Breach of Oral Stock Option Contract . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
1. Miga v. Jensen, 96 S.W.3d 207 (Tex. October 31, 2002) [00-0932]. . . . . . . . . . . . . . . . . . . . . . . . . 17
E. Measurement/Permanent Injury to Land . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1. Coastal Transp., Inc. v. Crown Cent. Petroleum Corp., 38 S.W.3d 180 (Tex. App.–Houston [14th Dist.]
2001), pet. for review granted, 45 Tex. Sup. Ct. J. 1145 (August 29, 2002) [01-0301]. . . . . . . . . . . . 18
F. Proportionate Responsibility Statute/Applicability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1. Southwest Bank v. Info. Support Concepts, Inc., 85 S.W.3d 462 (Tex. App.–Fort Worth 2002), pet. for
review granted, 46 Tex. Sup. Ct. J. 1058 (August 28, 2003) [02-0946]. . . . . . . . . . . . . . . . . . . . . . . 18
G. Punitive Damages/Applicability of Statutory Cap . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
1. Diamond Shamrock Ref. Co. v. Hall, 82 S.W.3d 5 (Tex. App.–San Antonio 2001), pet. for review
granted, 46 Tex. Sup. Ct. J. 584 (April 17, 2003) [02-0566]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
H. Punitive Damages/Legal Sufficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1. Southwestern Bell Tel. Co. v. Garza, 58 S.W.3d 214 (Tex. App.–Corpus Christi 2001), pet. for review
granted, 46 Tex. Sup. Ct. J. 779 (June 12, 2003) [01-1142] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
XIII. DECEPTIVE TRADE PRACTICES ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
A. Agent Liability/Scope of Employment/ Fraud . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1. Miller v. Keyser, 90 S.W.3d 712 (Tex. November 5, 2002) [01-0541]. . . . . . . . . . . . . . . . . . . . . . . 19
B. Assignability of Claims/Consumer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
1. PPG Indus., Inc. v. JMB/Houston Ctr. Partners Ltd. P’ship, 41 S.W.3d 270 (Tex. App.–Houston [14th
Dist.] 2001), pet. for review granted, 45 Tex. Sup. Ct. J. 1107 (August 22, 2002) [01-0346]. . . . . . . 19
XIV. DISCOVERY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... 20
A. Federal Privacy Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... 20
1. In re CI Host, Inc., 92 S.W.3d 514 (Tex. November 21, 2002) [00-1150]. . . . . . . . . . . .......... 20
B. Possession, Custody or Control . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... 20
1. In re Kuntz, S.W.3d , Tex. Sup. Ct. J. (December 19, 2003) [02-0375]. . . . . . .......... 20
C. Relevancy and Overbreadth . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... 21
1. In re CSX Corp., S.W.3d , 47 Tex. Sup. Ct. J. 24 (October 3, 2003) [03-0381]. . . .......... 21
D. Sanctions/Abuse of Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... 21
1. Cire v. Cummings, 74 S.W.3d 920 (Tex. App.–Amarillo 2002), pet. for review granted, 46 Tex. Sup. Ct.
J. 584 (April 17, 2003) [02-0670]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... 21
2. Spohn Hosp. v. Mayer, 104 S.W.3d 878 (Tex. April 24, 2003) [02-0443]. . . . . . . . . . . .......... 21
E. Trade Secrets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......... 21
1. In re Bridgestone/Firestone, Inc., 106 S.W.3d 730 (Tex. May 22, 2003) [01-1165]. . . . .......... 21
2. In re Bass, 113 S.W.3d 735 (Tex. July 3, 2003) [02-0071]. . . . . . . . . . . . . . . . . . . . . .......... 22
XV. EMPLOYMENT LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
A. Disability Discrimination/Evidence of Pretext . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
1. Wal-Mart Stores, Inc. v. Canchola, S.W.3d , 46 Tex. Sup. Ct. J. 1116 (September 4, 2003) [02-0232].
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
B. Drug Testing/Termination of At-Will Employee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
1. Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705 (Tex. May 15, 2003) [01-0292]. . . . . 23
C. Preemption/Texas Commission on Human Rights Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
1. Hoffman-LaRoche, Inc. v. Zeltwanger, 69 S.W.3d 634 (Tex. App.–Corpus Christi 2002), pet. for review
granted, 46 Tex. Sup. Ct. J. 68 (October 31, 2002) [02-0120]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
D. Retaliation/Evidence/Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
1. Southwestern Bell Tel. Co. v. Garza, 58 S.W.3d 214 (Tex. App.–Corpus Christi 2001), pet. for review
granted, 46 Tex. Sup. Ct. J. 779 (June 12, 2003) [01-1142] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
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XVI. EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
A. Expert Testimony/Causation/Legal Malpractice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
1. Alexander v. Turtur & Assocs., Inc., 86 S.W.3d 646 (Tex. App.–Houston [1st Dist.] 2001), pet. for
review granted, 46 Tex. Sup. Ct. J. 1204 (September 25, 2003) [02-1009]. . . . . . . . . . . . . . . . . . . . 24
B. Outcry Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
1. In re Z.L.B., 102 S.W.3d 120 (Tex. March 13, 2003) [01-1209]. . . . . . . . . . . . . . . . . . . . . . . . . . . 24
C. Videotaped Statement/Unidentified Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
1. Volkswagen of Am., Inc. v. Ramirez, 79 S.W.3d 113 (Tex. App.–Corpus Christi 2002), pet. for review
granted, 46 Tex. Sup. Ct. J. 489 (March 6, 2003) [02-0557]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
XVII. FALSE IMPRISONMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
A. Failure to Disclose by Complainant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
1. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502 (Tex. October 10, 2002) [01-0643]. . . . . . . . . . 25
XVIII. FAMILY LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
A. Appointed Counsel/Conflict of Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
1. In re B.L.D., 113 S.W.3d 340 (Tex. July 3, 2003) [01-0882]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
B. Child Support/Postjudgment Interest/ Appellate Filing Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1. Office of the Att’y Gen. of Tex. v. Lee, 92 S.W.3d 526 (Tex. December 5, 2002) [01-0471]. . . . . . . 26
C. Contempt Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1. In re Sheshtawy, 2003 WL 1922869 (Tex. App.–Houston [1st Dist.] 2003), argument granted on pet.
for writ of habeas corpus, 46 Tex. Sup. Ct. J. 1124 (September 11, 2003) [03-0766]. . . . . . . . . . . . . 26
D. Divorce/Property Division/Retirement Benefits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
1. Keen v. Weaver, S.W.3d , 46 Tex. Sup. Ct. J. 804 (June 19, 2003), cert. denied, U.S. (December
1, 2003) [01-0447]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
2. Shanks v. Treadway, 110 S.W.3d 444 (Tex. June 26, 2003) [00-1325]. . . . . . . . . . . . . . . . . . . . . . 26
3. Reiss v. Reiss, 118 S.W.3d 439 (Tex. June 26, 2003) [01-0251]. . . . . . . . . . . . . . . . . . . . . . . . . . . 27
E. Parental Notification Act/Judicial Bypass . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
1. In re Jane Doe 11, 92 S.W.3d 511 (Tex. October 10, 2002) [02-0933]. . . . . . . . . . . . . . . . . . . . . . . 27
F. Request for Bench Warrant . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
1. In re Z.L.T., S.W.3d , 47 Tex. Sup. Ct. J. 113 (November 21, 2003) [02-0474]. . . . . . . . . . . . . 28
G. Termination of Parental Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
1. In re L.S.R., 92 S.W.3d 529 (Tex. December 5, 2002) [02-0039]. . . . . . . . . . . . . . . . . . . . . . . . . . 28
2. In re J.F.C., 96 S.W.3d 256 (Tex. December 31, 2002) [01-0571]. . . . . . . . . . . . . . . . . . . . . . . . . . 28
3. In re L.M.I., 119 S.W.3d 707 (Tex. September 18, 2003) [02-0244]. . . . . . . . . . . . . . . . . . . . . . . . 29
4. In re A.F., 113 S.W.3d 363 (Tex. July 3, 2003) [02-1167]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
5. In re A.V., 113 S.W.3d 355 (Tex. July 3, 2003) [01-0706]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
6. In re B.L.D., 113 S.W.3d 340 (Tex. July 3, 2003) [01-0882]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
7. In re K.N.R., 113 S.W.3d 365 (Tex. July 3, 2003) [02-0442]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
8. In re M.S., 115 S.W.3d 534 (Tex. July 3, 2003) [02-0509]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
XIX. FEDERAL PREEMPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
A. Airline Deregulation Act of 1978 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
1. Delta Air Lines v. Black, 116 S.W.3d 745 (Tex. September 11, 2003) [02-0255]. . . . . . . . . . . . . . . . 31
B. ERISA/Insurance Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
1. Provident Life & Accident Ins. Co. v. Knott, S.W.3d , Tex. Sup. Ct. J. (December 19, 2003) [02-
0485]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
C. ERISA/Waiver of Benefits in Divorce Decree . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
1. Keen v. Weaver, S.W.3d , 46 Tex. Sup. Ct. J. 804 (June 19, 2003), cert. denied, U.S. (December
1, 2003) [01-0447]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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XX. GAMBLING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... .. . . . . . . . . . . 32
A. Gambling Devices/Burden of Proof . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .... .. . . . . . . . . . . 32
1. Hardy v. State, 102 S.W.3d 123 (Tex. April 3, 2003) [01-0779]. . . . . . . . . . . . .... .. . . . . . . . . . . 32
2. State v. One Super Cherry Master Video 8-Liner Mach., 102 S.W.3d 132 (Tex. April 3, 2003) [01-0673].
........................................................ .... .. . . . . . . . . . . 33
XXI. GOVERNMENTAL IMMUNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
A. Bad Faith . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
1. City of Terrell Hills v. Champion Builders, 70 S.W.3d 221 (Tex. App.–San Antonio 2001), pet. for review
granted, 46 Tex. Sup. Ct. J. 15 (October 10, 2002) [02-0260]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
B. City Councilman/Attorney/Fiduciary Duty to Law Firm Clients . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
1. Joe v. Two Thirty Nine Joint Venture, 60 S.W.3d 896 (Tex. App.–Dallas 2001), pet. for review granted,
46 Tex. Sup. Ct. J. 434 (February 13, 2003) [02-0218]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
C. Conduct/Real Estate Trade . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
1. Catalina Dev., Inc. v. El Paso County, S.W.3d , 46 Tex. Sup. Ct. J. 636 (May 8, 2003) [02-0299].
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
D. Derivative Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
1. Dallas County v. Halsey, 87 S.W.3d 552 (Tex. October 24, 2002) [01-0784]. . . . . . . . . . . . . . . . . . . 34
2. Harris County v. Sykes, 89 S.W.3d 661 (Tex. App.–Houston [1st Dist.] 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 1058 (August 28, 2003) [02-1014]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
E. Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
1. Tex. Dep’t of Parks & Wildlife v. Miranda, 55 S.W.3d 648 (Tex. App.–San Antonio 2001), pet. for
review granted on reh’g, 45 Tex. Sup. Ct. J. 999 (July 3, 2002) [01-0619]. . . . . . . . . . . . . . . . . . . . 34
F. Nuisance/Sewage Flooding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
1. City of Dallas v. Jennings, 2001 WL 800108 (Tex. App.–Dallas 2001) , pet. for review granted, 45 Tex.
Sup. Ct. J. 590 (April 25, 2002) [01-1012]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
G. Premises Liability/Recreational Use Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
1. City of Bellmead v. Torres, 89 S.W.3d 611 (Tex. November 5, 2002) [01-0299]. . . . . . . . . . . . . . . . 35
H. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
1. City of Terrell Hills v. Champion Builders, 70 S.W.3d 221 (Tex. App.–San Antonio 2001), pet. for review
granted, 46 Tex. Sup. Ct. J. 15 (October 10, 2002) [02-0260]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
2. San Antonio State Hosp. v. Cowan, 75 S.W.3d 19 (Tex. App.–San Antonio 2001), pet. for review
granted, 46 Tex. Sup. Ct. J. 197 (November 21, 2002) [02-0348]. . . . . . . . . . . . . . . . . . . . . . . . . . 36
3. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. March 6, 2003) [01-0491]. . . . . . . . . . . . 36
4. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540 (Tex. April 17, 2003) [02-0177]. . . . . . . . . . . 36
5. Beaumont State Ctr. v. Kozlowski, 108 S.W.3d 899 (Tex. June 5, 2003) [02-0243]. . . . . . . . . . . . . 37
6. Ctr. for Health Care Servs. v. Quintanilla, S.W.3d , 46 Tex. Sup. Ct. J. 1103 (August 28, 2003) [02-
0942]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
XXII. HABEAS CORPUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
A. Contempt Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
1. In re Sheshtawy, 2003 WL 1922869 (Tex. App.–Houston [1st Dist.] 2003), argument granted on pet.
for writ of habeas corpus, 46 Tex. Sup. Ct. J. 1124 (September 11, 2003) [03-0766]. . . . . . . . . . . . . 37
XXIII. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
A. Article 21.55/Applicability/Third-Party Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
1. N. County Mut. Ins. Co. v. Davalos, 84 S.W.3d 314 (Tex. App.–Corpus Christi 2002), pet. for review
granted, 46 Tex. Sup. Ct. J. 682 (May 22, 2003) [02-1007]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
B. Duty to Defend . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
1. Utica Nat’l Ins. Co. v. Am. Indem. Co., S.W.3d , 46 Tex. Sup. Ct. J. 866 (June 26, 2003), reh’g
granted Tex. Sup. Ct. J. (December 19, 2003) [02-0090]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
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2. N. County Mut. Ins. Co. v. Davalos, 84 S.W.3d 314 (Tex. App.–Corpus Christi 2002), pet. for review
granted, 46 Tex. Sup. Ct. J. 682 (May 22, 2003) [02-1007]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
C. Personal Injury Protection or Uninsured/Underinsured Motorist Coverage/ Waiver . . . . . . . . . . . . . . . . . . 39
1. Old Am. County Mut. Fire Ins. Co. v. Sanchez, 81 S.W.3d 452 (Tex. App.–Austin 2002), pet. for review
granted, 47 Tex. Sup. Ct. J. 2 (October 3, 2003) [02-0843]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
D. Policies/Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
1. In re Senior Living Props., LLC, 63 S.W.3d 594 (Tex. App.–Tyler 2002), argument granted on pet. for
writ of mandamus, 45 Tex. Sup. Ct. J. 641 (May 16, 2002), abated, 46 Tex. Sup. Ct. J. 600 (April 24,
2003) [02-0087]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
E. Policy/Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
1. Ray Ins. Agency v. Jones, 92 S.W.3d 530 (Tex. December 12, 2002) [02-0009]. . . . . . . . . . . . . . . . 40
F. Policy/Compensation for Diminished Value of Vehicle . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
1. Am. Mfr. Mut. Ins. Co. v. Schaefer S.W.3d , 47 Tex. Sup. Ct. J. 40 (October 17, 2003) [02-0295].
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
G. Policy/Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
1. Old Am. County Mut. Fire Ins. Co. v. Sanchez, 81 S.W.3d 452 (Tex. App.–Austin 2002), pet. for review
granted, 47 Tex. Sup. Ct. J. 2 (October 3, 2003) [02-0843]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
2. Progressive County Mut. Ins. Co. v. Sink, 107 S.W.3d 547 (Tex. May 15, 2003) [01-0534]. . . . . . . . 40
3. Tex. Farm Bureau Mut. Ins. Co. v. Sturrock, 65 S.W.3d 763 (Tex. App.–Beaumont 2001), pet. for
review granted, 46 Tex. Sup. Ct. J. 481 (March 6, 2003) [02-0069]. . . . . . . . . . . . . . . . . . . . . . . . . 41
H. Reimbursement for Claims Paid but Not Covered . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
1. Excess Underwriters at Lloyd’s v. Frank’s Casing Crew & Rental Tools, Inc., 93 S.W.3d 178 (Tex.
App.–Houston [14th Dist.] 2002), pet. for review granted, 46 Tex. Sup. Ct. J. 546 (April 3, 2003) [02-
0730]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
XXIV. INTENTIONAL TORTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
A. Business Disparagement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
1. Forbes Inc. v. Granada Biosciences Inc., S.W.3d , Tex. Sup. Ct. J. (December 19, 2003) [01-
0788]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
B. Conversion/Proportionate Responsibility Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
1. Southwest Bank v. Info. Support Concepts, Inc., 85 S.W.3d 462 (Tex. App.–Fort Worth 2002), pet. for
review granted, 46 Tex. Sup. Ct. J. 1058 (August 28, 2003) [02-0946]. . . . . . . . . . . . . . . . . . . . . . . 42
C. Infliction of Emotional Injury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
1. Tiller v. McLure, S.W.3d , 46 Tex. Sup. Ct. J. 632 (May 8, 2003) [02-0136]. . . . . . . . . . . . . . . 42
2. Hoffman-LaRoche, Inc. v. Zeltwanger, 69 S.W.3d 634, (Tex. App.–Corpus Christi 2002), pet. for review
granted, 46 Tex. Sup. Ct. J. 68 (October 31, 2002) [02-0120]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
D. Malicious Prosecution/Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
1. King v. Graham S.W.3d , 47 Tex. Sup. Ct. J. 85 (November 7, 2003) [01-0171]. . . . . . . . . . . . . 43
2. First Valley Bank v. Martin, 55 S.W.3d 172 (Tex. App.–Corpus Christi 2001), pet. for review granted,
47 Tex. Sup. Ct. J. 127 (Dec. 12, 2003) [01-0910]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
E. Nuisance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
1. Holubec v. Brandenberger, 111 S.W.3d 32 (Tex. May 22, 2003) [01-1214]. . . . . . . . . . . . . . . . . . . . 43
2. Schneider Nat’l Carriers, Inc. v. Bates, 95 S.W.3d 309 (Tex. App.–Houston [1st] 2002), pet. for review
granted, 47 Tex. Sup. Ct. J. 105 (November 21, 2003) [03-0236]. . . . . . . . . . . . . . . . . . . . . . . . . . 44
F. Tortious Interference with Contract/Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
1. Tana Oil & Gas Corp. v. McCall, 104 S.W.3d 80 (Tex. February 13, 2003) [01-1181]. . . . . . . . . . . . 44
2. Latch v. Gratty, Inc., 107 S.W.3d 543 (Tex. February 27, 2003) [01-0773]. . . . . . . . . . . . . . . . . . . 44
XXV. JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
A. Adequate Appellate Remedy/Interference with Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
1. In re Houston Northwest Partners, Ltd. [03-0252], 98 S.W.3d 777 (Tex. App.–Austin 2003), argument
granted on pet. for writ of mandamus, 46 Tex. Sup. Ct. J. 1124 (September 11, 2003), and
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consolidated for oral argument with Gonzalez v. Reliant Energy, Inc. [03-0469 & 03-0470], 102 S.W.3d
868 (Tex. App.–Houston [1st Dist.] 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
B. Conflicts Jurisdiction/Dicta in Court of Appeals’ Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
1. State Farm Mut. Auto. Ins. Co. v. Lopez, S.W.3d , 46 Tex. Sup. Ct. J. 129 (October 31, 2002), pet.
for review granted on reh’g and prior opinion withdrawn, 46 Tex. Sup. Ct. J. 129 (May 8, 2003) [01-
0540]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
C. Conflicts Jurisdiction/Prior Supreme Court Opinions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
1. Tex. Dep’t of Parks & Wildlife v. Miranda, 55 S.W.3d 648 (Tex. App.–San Antonio 2001), pet. for
review granted on reh’g, 45 Tex. Sup. Ct. J. 999 (July 3, 2002) [01-0619]. . . . . . . . . . . . . . . . . . . . 45
D. Enforcement of Prior Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
1. In re Crow-Billingsley Air Park Ltd., 98 S.W.3d 178 (Tex. February 13, 2003) [02-0311]. . . . . . . . . . 46
E. Personal Jurisdiction/Non-Residents/Civil Practice & Remedies Code section 71.052 . . . . . . . . . . . . . . . . 46
1. In re E.I. DuPont de Nemours & Co., 92 S.W.3d 517 (Tex. December 5, 2002) [01-0066]. . . . . . . . 46
XXVI. JUVENILE DELIQUENCY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
A. Modification of Disposition Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
1. In re J.P., 2003 Tex. App. LEXIS 618 (Tex. App.–Fort Worth Jan. 23, 2003), pet. for review granted,
Tex. Sup. Ct. J. (December 12, 2003) [03-0266]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
XXVII. MANDAMUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
A. Adequate Appellate Remedy/Interference with Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
1. In re Houston Northwest Partners, Ltd. [03-0252], 98 S.W.3d 777 (Tex. App.–Austin 2003), argument
granted on pet. for writ of mandamus, 46 Tex. Sup. Ct. J. 1124 (September 11, 2003), and
consolidated for oral argument with Gonzalez v. Reliant Energy, Inc. [03-0469 & 03-0470], 102 S.W.3d
868 (Tex. App.–Houston [1st Dist.] 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
B. Adequate Appellate Remedy/Jurisdictional Interference . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
1. In re State Bar of Tex. [02-0293], consolidated with In re State Bar of Tex. [02-0294], In re Bd. of
Disciplinary Appeals [02-0343], and In re Bd. of Disciplinary Appeals [02-0344], 113 S.W.3d 730 (Tex.
July 3, 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
XXVIII. MEDICAL MALPRACTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
A. Borrowed Employee/Joint Enterprise/Joint Venture/Ratification and Mission . . . . . . . . . . . . . . . . . . . . . . . 47
1. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513 (Tex. November 5, 2002) [99-1192]. . . . . . . . . . . . . . . . 47
B. Expert Preliminary Report/Timely Filing/Extension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
1. Walker v. Gutierrez, 111 S.W.3d 56 (Tex. June 19, 2003) [01-0841]. . . . . . . . . . . . . . . . . . . . . . . . 48
C. Expert Preliminary Report/Timely Filing/Waiver of Right to Dismissal . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
1. Jernigan v. Langley, 111 S.W.3d 153 (Tex. July 3, 2003) [02-0575]. . . . . . . . . . . . . . . . . . . . . . . . . 48
D. “Good Samaritan” Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
1. McIntyre v. Ramirez, 109 S.W.3d 741 (Tex. June 26, 2003) [01-1203]. . . . . . . . . . . . . . . . . . . . . . 48
E. Informed Consent or Misdiagnosis and Negligent Treatment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
1. Binur v. Jacobo, 70 S.W.3d 330 (Tex. App.–Waco 2002), pet. for review granted, 46 Tex. Sup. Ct. J.
488 (March 6, 2003) [02-0405]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
F. Medical Liability and Insurance Improvement Act/“Health Care Liability Claims” . . . . . . . . . . . . . . . . . . . 49
1. Garland Cmty. Hosp. v. Rose, 87 S.W.3d 188 (Tex. App.–Dallas 2002), pet. for review granted, 46 Tex.
Sup. Ct. J. 1058 (August 28, 2003) [02-0902]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
G. Negligence/Legal Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
1. IHS Cedars Treatment Ctr. of Desoto v. Mason, 2001 WL 915215 (Tex. App.–Dallas 2001), pet. for
review granted, 46 Tex. Sup. Ct. J. 69 (October 31, 2002) [01-0926]. . . . . . . . . . . . . . . . . . . . . . . . 49
H. Professional Association Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
1. Battaglia v. Alexander, 93 S.W.3d 132 (Tex. App.–Houston [14th Dist.] 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 781 (June 12, 2003) [02-0701]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
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XXIX. MUNICIPAL CORPORATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
A. Extraterritorial Jurisdiction/Annexation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
1. City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. June 26, 2003) [01-1054]. . . . . . . . . . . 50
XXX. NEGLIGENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
A. Duty of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
1. Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30 (Tex. October 31, 2002) [00-0889]. . . . . . . . . . . . . 50
2. Speed Boat Leasing Inc. v. Elmer, S.W.3d , Tex. Sup. Ct. J. (December 19, 2003) [03-0037].
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
B. Gross Negligence/Legal Sufficiency of Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
1. Coastal Transp., Inc. v. Crown Cent. Petroleum Corp., 38 S.W.3d 180 (Tex. App.–Houston [14th Dist.]
2001), pet. for review granted, 45 Tex. Sup. Ct. J. 1145 (August 29, 2002) [01-0301]. . . . . . . . . . . . 51
C. Legal Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
1. IHS Cedars Treatment Ctr. of Desoto v. Mason, 2001 WL 915215 (Tex. App.–Houston [14th Dist.]
2002), pet. for review granted, 46 Tex. Sup. Ct. J. 69 (October 31, 2002) [01-0926]. . . . . . . . . . . . . 51
D. Liability/Resuscitating Premature Infant/Parental Consent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
1. Miller v. HCA, Inc., 118 S.W.3d 758 (Tex. September 30, 2003) [01-0079]. . . . . . . . . . . . . . . . . . . 52
E. Nursing Home Assault/Limitations/Health-Care Liability Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
1. Diversicare Gen. Partner, Inc. v. Rubio, 82 S.W.3d 778 (Tex. App.–Corpus Christi 2002), pet. for review
granted, 46 Tex. Sup. Ct. J. 528 (March 27, 2003) [02-0849]. . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
F. Premises Liability/Independent Contractor’s Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
1. Dow Chem. Co. v. Bright, 89 S.W.3d 602 (Tex. October 17, 2002) [99-0929]. . . . . . . . . . . . . . . . . 52
G. Premises Liability/Knowledge of Danger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
1. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706 (Tex. March 27, 2003) [01-1148]. . . . . . . . . . . . . . 53
H. Providing Alcohol . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
1. F.F.P. Operating Partners L.P. v. Dueñez, 69 S.W.3d 800 (Tex. App.–Corpus Christi 2002), pet. for
review granted, 46 Tex. Sup. Ct. J. 245 (December 12, 2002) [02-0381]. . . . . . . . . . . . . . . . . . . . . 53
I. Proximate Cause/Cause in Fact/Legal Sufficiency . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
1. Marathon Corp. v. Pitzner, 106 S.W.3d 724 (Tex. May 22, 2003) [01-0870]. . . . . . . . . . . . . . . . . . . 54
J. Recreational Use Statute . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
1. City of Bellmead v. Torres, 89 S.W.3d 611 (Tex. November 5, 2002) [01-0299]. . . . . . . . . . . . . . . . 54
XXXI. NUISANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
A. Right to Farm Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
1. Holubec v. Brandenberger, 111 S.W.3d 32 (Tex. May 22, 2003) [01-1214]. . . . . . . . . . . . . . . . . . . . 54
B. Temporary v. Permanent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
1. Schneider Nat’l Carriers, Inc. v. Bates, 95 S.W.3d 309 (Tex. App.–Houston [1st] 2002), pet. for review
granted, 47 Tex. Sup. Ct. J. 105 (November 21, 2003) [03-0236]. . . . . . . . . . . . . . . . . . . . . . . . . . 55
XXXII. OIL AND GAS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
A. Implied Covenants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
1. Union Pac. Res. Group, Inc. v. Hankins, 111 S.W.3d 69 (Tex. July 3, 2003) [01-0836]. . . . . . . . . . . 55
B. Lease Termination/Adverse Possession . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
1. Natural Gas Pipeline Co. of Am. v. Pool, 120 S.W.3d 317 (Tex. August 28, 2003) [01-0057 & 01-0058].
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
C. Lease Termination/Cessation-of-Production Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
1. Ridge Oil Co. v. Guinn Invs., Inc., 73 S.W.3d 523 (Tex. App.–Fort Worth 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 402 (January 16, 2003) [02-0599]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
2. Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550 (Tex. July 3, 2002) [01-0261]. . . . . . . . . . 56
D. Railroad Commission Rule-Making/Judicial Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
1. Tex. R.R. Comm’n v. WBD Oil & Gas Co., 104 S.W.3d 69 (Tex. February 13, 2003) [01-0177]. . . . 57
E. Royalty Conveyance/Cover-All Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
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1. J. Hiram Moore, Ltd. v. Greer, 72 S.W.3d 436 (Tex. App.–Corpus Christi 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 801 (June 19, 2003) [02-0455]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
F. Single Business Enterprise/Shareholder Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
1. S. Union Co. v. City of Edinburg S.W.3d , Tex. Sup. Ct. J. (October 31, 2003) [01-0785]. . 57
XXXIII. PROBATE: WILLS, TRUSTS, ESTATES, AND GUARDIANSHIPS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
A. District Court’s Continuing Jurisdiction Over Trust . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
1. Tex. State Bank v. Amaro, 87 S.W.3d 538 (Tex. September 26, 2002) [00-1220]. . . . . . . . . . . . . . . 58
B. Transferring Lawsuit/Abuse of Discretion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
1. In re Houston Northwest Partners, Ltd. [03-0252], 98 S.W.3d 777 (Tex. App.–Austin 2003), argument
granted on pet. for writ of mandamus, 46 Tex. Sup. Ct. J. 1124 (September 11, 2003), and
consolidated for oral argument with Gonzalez v. Reliant Energy, Inc. [03-0469 & 03-0470], 102 S.W.3d
868 (Tex. App.–Houston [1st Dist.] 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
XXXIV. PROCEDURE—APPELLATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
A. Appeal Notice/Extension/TRAP 26.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
1. Hone v. Hanafin, 104 S.W.3d 884 (Tex. May 1, 2003) [02-0548]. . . . . . . . . . . . . . . . . . . . . . . . . . . 59
B. Broad-Form Jury Questions/Prejudice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
1. Harris County v. Smith, 96 S.W.3d 230 (Tex. December 19, 2002) [01-0531]. . . . . . . . . . . . . . . . . . 59
2. In re J.F.C., 96 S.W.3d 256 (Tex. December 31, 2002) [01-0571]. . . . . . . . . . . . . . . . . . . . . . . . . . 60
C. Expert Testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
1. FFE Transp. Servs., Inc. v. Fulgham, 2002 WL 1801596 (Tex. App.–Dallas), pet. for review granted,
46 Tex. Sup. Ct. J. 838 (June 26, 2003) [02-1097]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
2. In re B.L.D., 113 S.W.3d 340 (Tex. July 3, 2003) [01-0882]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
3. In re K.N.R., 113 S.W.3d 365 (Tex. July 3, 2003) [02-0442]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
D. Filing Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
1. Office of the Att’y Gen. of Tex. v. Lee, 92 S.W.3d 526 (Tex. December 5, 2002) [01-0471]. . . . . . . 61
E. Finality of Judgments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
1. Briscoe v. Goodmark Corp., 102 S.W.3d 714 (Tex. March 27, 2003) [02-0498]. . . . . . . . . . . . . . . . 61
F. Motion for New Trial Granted/Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
1. Volkswagen of Am., Inc. v. Ramirez, 79 S.W.3d 113 (Tex. App.–Corpus Christi 2002), pet. for review
granted, 46 Tex. Sup. Ct. J. 489 (March 6, 2003) [02-0557]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
G. No-Evidence Summary Judgment/ Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
1. Binur v. Jacobo, 70 S.W.3d 330 (Tex. App.–Waco 2002), pet. for review granted, 46 Tex. Sup. Ct. J.
488 (March 6, 2003) [02-0405]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
H. Preserving Error . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
1. Bennett v. Cochran, 96 S.W.3d 227 (Tex. December 12, 2002) [02-0050]. . . . . . . . . . . . . . . . . . . . 63
I. Preserving Error/Broad-Form Jury Questions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
1. In re A.F., 113 S.W.3d 363 (Tex. July 3, 2003) [02-1167]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
J. Time for Perfecting Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
1. Naaman v. Grider S.W.3d , 47 Tex. Sup. Ct. J. 60 (October 31, 2003) [02-0784]. . . . . . . . . . . . 63
XXXV. PROCEDURE—PRETRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
A. Correcting Pleading/Supplemental or Amended Petition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
1. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46 (Tex. May 22, 2003) [02-0179]. . . . . . . . . . . . . 63
B. Enforcement of a Forum-Selection Clause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
1. In re AIU Ins. Co., argument granted on pet. for writ of mandamus, 46 Tex. Sup. Ct. J. 478 (March
6, 2003) [02-0648]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
C. Special Exceptions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
1. W. Orange-Cove Consol. I.S.D. v. Alanis, 107 S.W.3d 558 (Tex. May 29, 2003) [02-0427]. . . . . . . . 64
D. Summary Judgment/Craddock Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
1. Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. December 31, 2002) [01-0002]. . . 65
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E. Venue/Motion to Transfer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
1. Garza v. Garcia, 70 S.W.3d 362 (Tex. App.–Corpus Christi 2002), pet. for review granted, 46 Tex. Sup.
Ct. J. 16 (October 10, 2002) [02-0300]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
XXXVI. PROCEDURE—TRIAL AND POST-TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
A. Procedure–Trial and Post-Trial/Batson Challenge . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
1. Gen. Motors Corp. v. Iracheta, 90 S.W.3d 725 (Tex. App.–San Antonio 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 1204 (September 25, 2003) [02-0932]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
B. Jury Instruction/Liability/Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
1. Southwestern Bell Tel. Co. v. Garza, 58 S.W.3d 214 (Tex. App.–Corpus Christi 2001), pet. for review
granted, 46 Tex. Sup. Ct. J. 779 (June 12, 2003) [01-1142] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
C. Jury Instruction/Spoliation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
1. Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718 (Tex. May 22, 2003) [01-0441]. . . . . . . . . . . . . 67
D. Motion for New Trial/Timeliness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
1. Williams v. Flores, 88 S.W.3d 631 (Tex. October 10, 2002) [02-0035]. . . . . . . . . . . . . . . . . . . . . . . 67
2. Moritz v. Preiss, S.W.3d , 46 Tex. Sup. Ct. J. 784 (June 12, 2003) [01-1270]. . . . . . . . . . . . . . . 67
XXXVII. PRODUCTS LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
A. Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
1. Ford Motor Co. v. Ridgway, 82 S.W.3d 26 (Tex. App.–San Antonio 2002), pet. for review granted, 46
Tex. Sup. Ct. J. 527 (March 27, 2003) [02-0552]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
B. Evidence of Causation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
1. Gen. Motors Corp. v. Iracheta, 90 S.W.3d 725 (Tex. App.–San Antonio 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 1204 (September 25, 2003) [02-0932]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
C. Indemnification . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
1. Bostrom Seating, Inc. v. Crane Carrier Co., 89 S.W.3d 153 (Tex. App.–Corpus Christi 2002) , pet. for
review granted, 47 Tex. Sup. Ct. J. 54 (October 31, 2003) [02-1047]. . . . . . . . . . . . . . . . . . . . . . . . 68
D. Learned Intermediary Doctrine/Sophisticated User Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
1. Humble Sand & Gravel, Inc. v. Gomez, 48 S.W.3d 487 (Tex. App.–Texarkana 2001), pet. for review
granted, 45 Tex. Sup. Ct. J. 712 (May 30, 2002) [01-0652]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
E. Physical Impairment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
1. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. September 11, 2003) [01-0007]. . . . . 69
F. Stream of Commerce/Release of Product to Third-Party Contractor . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
1. FFE Transp. Servs., Inc. v. Fulgham, 2002 WL 1801596 (Tex. App.–Dallas), pet. for review granted,
46 Tex. Sup. Ct. J. 838 (June 26, 2003) [02-1097]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
XXXVIII. REAL PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
A. Boundary Dispute/Declaratory Action/Attorney’s Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
1. Martin v. Amerman, 83 S.W.3d 858 (Tex. App.–Texarkana 2002), pet. for review granted, 46 Tex. Sup.
Ct. J. 616 (May 1, 2003) [02-0731]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
B. Condemnation/Easements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
1. Marcus Cable Assocs. L.P. v. Krohn, 90 S.W.3d 697 (Tex. November 11, 2002) [01-0291]. . . . . . . . 70
2. Hubenak v. San Jacinto Gas Transmission Co., 65 S.W.3d 791 (Tex. App.–Houston [1st Dist.] 2001) [02-
0213], pet. for review granted and consolidated for oral argument with Hubenak v. San Jacinto Gas
Transmission Co., 65 S.W.3d 791 (Tex. App.–Houston [1st Dist.] 2001) [02-0214], Wenzel v. San Jacinto
Gas Transmission Co., 65 S.W.3d 791 (Tex. App.–Houston [1st Dist.] 2001) [02-0215], Kutach Family
Trust v. San Jacinto Gas Transmission Co., 65 S.W.3d 791 (Tex. App.–Houston [1st Dist.] 2001) [02-
0216], Cusack Ranch Corp. v. MidTexas Pipeline Co., 71 S.W.3d 395 (Tex. App.–Corpus Christi 2001)
[02-0217], MidTexas Pipeline Co. v. Dernehl, 71 S.W.3d 852 (Tex. App.–Texarkana 2002) [02-0320],
MidTexas Pipeline Co. v. Wright, 2002 WL 264833 (Tex. App.–Texarkana 2002) [02-0321], MidTexas
Pipeline Co. v. Wright, 2001 WL 1636640 (Tex. App.–Texarkana 2001) [02-0326], and Cusack v.
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MidTexas Pipeline Co., 2002 WL 368639 (Tex. App.–Corpus Christi 2002) [02-0359], pets. for review
granted, 46 Tex. Sup. Ct. J. 237 (December 12, 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
C. Condemnation/Taking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
1. Sheffield Dev. Co., Inc. v. City of Glenn Heights, 61 S.W.3d 634 (Tex. App.–Waco 2001), pet. for
review granted, 45 Tex. Sup. Ct. J. 996 (July 3, 2002) [02-0033]. . . . . . . . . . . . . . . . . . . . . . . . . . 71
2. Town of Flower Mound v. Stafford Estates Ltd. P’ship, 71 S.W.3d 18 (Tex. App.–Fort Worth 2002), pet.
for review granted, 46 Tex. Sup. Ct. J. 244 (December 12, 2002) [02-0369]. . . . . . . . . . . . . . . . . . . 72
D. Inverse Condemnation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
1. Tarrant Reg’l Water Dist. v. Gragg, 43 S.W.3d 609 (Tex. App.–Waco 2001), pet. for review granted,
45 Tex. Sup. Ct. J. 813 (June 13, 2002) [01-0362]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
2. Tex. Dept. of Transp. v. City of Sunset Valley, 92 S.W.3d 540 (Tex. App.–Austin 2002), pets. for review
granted, 47 Tex. Sup. Ct. J. 127 (Dec. 12, 2003) [03-0041]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
E. Landlord-Tenant/Duties Owed By Landlord . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
1. Shell Oil Co. v. Khan, 71 S.W.3d 890 (Tex. App.–Texarkana 2002), pet. for rev iew granted, 46 Tex.
Sup. Ct. J. 246 (December 12, 2002) [02-0401]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
F. Maintenance Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
1. Brooks v. NorthGlen Ass’n, 76 S.W.3d 162 (Tex. App.–Texarkana 2002), pet. for review granted, 46
Tex. Sup. Ct. J. 426 (February 13, 2003) [02-0492]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
G. Subsequent Purchasers/Prior Contractual Obligation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
1. N.P., Inc. v. Turboff, 111 S.W.3d 40 (Tex. May 22, 2003) [01-1167]. . . . . . . . . . . . . . . . . . . . . . . 73
H. Wrongful Condemnation/Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
1. Pinnacle Gas Treating, Inc. v. Read, 104 S.W.3d 544 (Tex. April 17, 2003) [02-0169]. . . . . . . . . . . . 73
XXXIX. REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
A. Foreclosure/Expert Testimony On Replacement Value/Fraudulent Transfers . . . . . . . . . . . . . . . . . . . . . . 74
1. First Nat’l Bank of Seminole v. Hooper, 104 S.W.3d 83 (Tex. February 13, 2003) [01-0688]. . . . . . . 74
B. Foreclosure/Materialman’s Lien/Time for Filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
1. Page v. Structural Wood Components, Inc., 102 S.W.3d 720 (Tex. April 3, 2003) [01-1122]. . . . . . . 74
2. Page v. Marton Roofing, Inc., 102 S.W.3d 733 (Tex. April 3, 2003) [02-0845]. . . . . . . . . . . . . . . . . 74
XL. SETTLEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
A. Authority of Guardian Ad Litem . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
1. In re Kan. City S. Indus., Inc., argument granted on pet. for writ of mandamus, 46 Tex. Sup. Ct. J.
1058 (August 28, 2003) [03-0179]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
B. Settlement Credits . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
1. Battaglia v. Alexander, 93 S.W.3d 132 (Tex. App.–Houston [14th Dist.] 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 781 (June 12, 2003) [02-0701]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
2. Roberts v. Williamson [01-0766], consolidated with Williamson v. Roberts [01-0765], 111 S.W.3d 113
(Tex. July 3, 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
XLI. STATUTE OF LIMITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
A. Service of Citation/Intervenors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
1. Baker v. Monsanto Co., 111 S.W.3d 158 (Tex. July 3, 2003) [02-0603]. . . . . . . . . . . . . . . . . . . . . . 76
XLII. TEXAS SOLID WASTE DISPOSAL ACT . . . . . . . . . . . . . . . . . . . . . .............. .......... ... 76
A. “Arranger” Liability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .............. .......... ... 76
1. R.R. Street & Co. v. Pilgrim Enter., Inc., 81 S.W.3d 276 (Tex. App.–Houston [1st Dist.] 2001), pet. for
review granted, 47 Sup. Ct. J. 105 (Nov. 21, 2003) [02-0758]. . .............. .......... ... 76
XLIII. TEXAS TORT CLAIMS ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
A. Governmental “Employee” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
1. Murk v. Scheele S.W.3d , 47 Tex. Sup. Ct. J. 88 (November 7, 2003) [01-0205]. . . . . . . . . . . . 77
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B. Notice of Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
1. Tex. Dep’t of Criminal Justice v. Simons, 74 S.W.3d 138 (Tex. App.–Beaumont 2002), pet. for review
granted, 46 Tex. Sup. Ct. J. 584 (April 17, 2003) [02-0479]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
2. Univ. of Tex. Southwestern Med. Ctr. at Dallas v. Loutzenhiser, 2002 WL 1565742 (Tex. App.–Dallas
2002), pet. for review granted, 47 Tex. Sup. Ct. J. 2 (October 3, 2003) [02-0894]. . . . . . . . . . . . . . 77
C. Notice of Claim/Minors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
1. Martinez v. Val Verde Reg’l Med. Ctr., 110 S.W.3d 480 (Tex. App.–San Antonio 2003), pet. for review
granted, 47 Tex. Sup. Ct. J. 2 (October 3, 2003) [03-0611]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
XLIV. TRUSTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
A. Fiduciary Duty/Breach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
1. Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240 (Tex. December 31, 2002) [01-0211]. . . . . . . 78
XLV. UNIFORM COMMERCIAL CODE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..... . . . . . . . . . . . . . . . . . . . . 78
A. Open Price Term . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..... . . . . . . . . . . . . . . . . . . . . 78
1. Shell Oil Co. v. HRN, Inc., 102 S.W.3d 205 (Tex. App.–Houston [14th] 2003), pet. for review granted,
Tex. Sup. Ct. J. (December 19, 2003) [03-0555]. . . . . . . . . . . ..... . . . . . . . . . . . . . . . . . . . . 78
XLVI. UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
A. Electric/Cooperative Owning For-Profit Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
1. HILCO Elec. Coop., Inc. v. Midlothian Butane Gas Co., 111 S.W.3d 75 (Tex. July 3, 2003) [01-0336].
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
B. Refunds to Customers for Unauthorized Charges . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
1. Lakeshore Util. Co. v. Tex. Natural Resource Conservation Comm’n, 92 S.W.3d 556 (Tex. App.–Austin
2002), pet. for review granted, 46 Tex. Sup. Ct. J. 1058 (August 28, 2003) [02-0988]. . . . . . . . . . . . 79
XLVII. WARRANTIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
A. Habitability and Workmanship/Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
1. Centex Homes v. Buecher, 95 S.W.3d 266 (Tex. December 31, 2002) [00-0479]. . . . . . . . . . . . . . . . 79
XLVIII. WORKERS’ COMPENSATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
A. Election of Remedies Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
1. Valley Forge Ins. Co. v. Austin, 105 S.W.3d 609 (Tex. June 5, 2003) [02-0100]. . . . . . . . . . . . . . . . 80
B. Evidence of Actual Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
1. Diamond Shamrock Ref. Co. v. Hall, 82 S.W.3d 5 (Tex. App.–San Antonio 2001), pet. for review
granted, 46 Tex. Sup. Ct. J. 584 (April 17, 2003) [02-0566]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
C. Exclusive Remedy Provision/Common Law Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
1. Wingfoot Enters. v. Alvarado, 111 S.W.3d 134 (Tex. July 3, 2003) [01-0825]. . . . . . . . . . . . . . . . . . 80
D. Nonsubscriber Benefit Plan/Release/Fair Notice/Express Negligence Doctrine . . . . . . . . . . . . . . . . . . . . . 81
1. Storage & Processors, Inc. v. Reyes, 86 S.W.3d 344 (Tex. App.–Texarkana 2002), pet. for review
granted, 46 Tex. Sup. Ct. J. 802 (June 19, 2003) [02-1008]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
XLIX. WRONGFUL DEATH . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ .............. 82
A. Parents’ Claims/Death of Fetus In Utero . . . . . . . . . . . . . . . . . . . . . . . . . ........ .............. 82
1. Fort Worth Osteopathic Hosp., Inc. v. Reese, 87 S.W.3d 203 (Tex. App.–Fort Worth 2002), pet. for
review granted, 46 Tex. Sup. Ct. J. 683 (May 22, 2003) [02-1061]. . . ........ .............. 82
INDEX . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
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SUPREME COURT UPDATE before the State Office of Administrative Hearings, an
administrative law judge upheld the revocation. Mega
I. SCOPE OF THIS ARTICLE Child Care, Inc. filed suit seeking judicial review of the
This article surveys cases that were decided by the determination. The trial court dismissed the case for lack
Supreme Court of Texas from October 1, 2002 through of jurisdiction. The court of appeals reversed, holding
December 31, 2003. Petitions that have been granted but that a right to judicial review exists under Texas
not yet decided are also included. Government Code section 2001.171.
The Supreme Court granted the Texas Department
II. ADMINISTRATIVE LAW of Protective and Regulatory Services’ petition for
A. Appeal/District Court Jurisdiction/Field Rules review to consider whether the trial court had subject
1. Tex. R.R. Comm’n v. WBD Oil & Gas Co., 104 matter jurisdiction to review the administrative law
S.W.3d 69 (Tex. February 13, 2003) [01-0177]. judge’s ruling. The Court heard argument on September
The issue is whether the district court has 10, 2003.
jurisdiction under the state’s Administrative Procedures
Act to review Texas Railroad Commission special field C. Public Utility Commission/Jurisdiction
rules adopted after a contested-case proceeding. In this 1. In re Entergy Corp. & Entergy Gulf States, Inc.,
case, WBD had notice of the hearing involving argument granted on pet. for writ of mandamus,
Panhandle oil and gas fields, but did not participate in it. 46 Tex. Sup. Ct. J. 1058 (August 28, 2003)
When oil and gas operators sued to force WBD’s [03-0024].
compliance with the rules, WBD sued the Railroad The issue in this case is whether a dispute over a
Commission and the operators to declare the rules private agreement that requires Public Utility Commission
invalid. The trial court dismissed WBD’s lawsuit, but the (PUC) approval to be effective is within the exclusive
court of appeals reversed, concluding that the field rules jurisdiction of the PUC. In 1992, Entergy Corp. agreed
are rules of “general applicability” that can be subject to to purchase Gulf States Utility Company, and the
a declaratory judgment suit under the administrative companies merged to form Entergy Gulf States, Inc.
procedures law. (EGSI). In 1993, EGSI customers entered into a
The Supreme Court reversed and remanded, holding settlement agreement with EGSI to capture a portion of
that Railroad Commission field rules adopted in a the expected savings from the merger. The agreement
contested-case proceeding cannot be challenged in a was to be implemented via a regulatory plan that required
declaratory-judgment action. The Court compared rule- EGSI to file three Public Utility Regulation Act (PURA)
making and contested-case proceedings, concluding that rate cases over an 8-year period. The PUC entered an
contested-case procedures limit participation to those order approving the merger and the regulatory plan.
directly affected by the dispute, in contrast to the While the second rate case was pending in 1999, the
maximum public participation necessary for rule-making. Legislature passed Senate Bill 7, which made sweeping
Participants in a contested case would expect any further changes to the electric utility industry to implement retail
challenge to follow immediately after the proceeding and competition in Texas and created a new and completely
that after that time the decision would stand. The court different regulatory scheme from that in place when the
of appeals had suggested that determining field rules is a settlement agreement was made. The PUC issued
hybrid process, but the Supreme Court said contested- orders in three subsequent EGSI proceedings altering the
case and rule-making procedures are mutually exclusive regulatory plan in the agreement to conform with Senate
in that a rule cannot be adopted without public input and Bill 7, including an order that Senate Bill 7 had eliminated
a contested case cannot be decided with it. the requirement for EGSI to file the third rate case.
Shearer, an EGSI customer who is not a signatory
B. License Revocation/Review to the Agreement, filed a class action suit for breach of
1. Tex. Dep’t of Protective & Regulatory Servs. v. contract alleging that Entergy and EGSI failed to pass on
Mega Child Care, Inc., 81 S.W.3d 470 (Tex. all the merger savings contemplated in the agreement to
App.–Houston [1st Dist.] 2002), pet. for review their Texas customers by not filing the third rate case.
granted, 46 Tex. Sup. Ct. J. 527 (March 27, 2003) Entergy filed a motion to transfer venue and subsequently
[02-0728]. a motion to dismiss for want of subject matter jurisdiction,
The issue is whether an administrative law judge’s arguing that PURA grants the PUC exclusive jurisdiction
ruling upholding revocation of a child-care facility’s over the case, which was essentially a dispute over
license is subject to judicial review. After a hearing
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EGSI’s rates pursuant to a PUC-approved regulatory not already received notice; (2) the Commission had
plan. The trial court denied both motions. made sufficient copies of the fees guideline available and
The Supreme Court heard argument in this original that requiring the Commission to make more copies
proceeding on November 12, 2003. would be prohibitively expensive because of its length;
and (3) the Commission had not exceeded its statutory
D. Worker’s Compensation/Medical Fee authority in setting caps on medical fees and that the
Guidelines/Promulgation imposition of a time limit on a request for medical dispute
1. Tex. Workers’ Comp. Comm’n v. Patient resolution complied with the purpose of a statute of
Advocates of Tex., 80 S.W.3d 66 (Tex. limitations. The court of appeals also held, however, that
App.–Austin 2002), pet. for review granted, 46 the Commission exceeded its authority in promulgating
Tex. Sup. Ct. J. 617 (May 1, 2003) [02-0804]. the Dispute and Audit Rules because the rules grant the
The issue is whether the Texas Workers’ insurance carriers authority to audit health-care
Compens ation Commission’s dispute and audit rules providers’ bills. The court of appeals stated that the
impermissibly grant administrative authority to a private delegation of the Commission’s authority to conduct
entity. A related issue raised in this appeal is whether audits to private insurance carriers was improper
the court of appeals properly invalidated the rules. because the Commission had not provided “sufficient
Patient Advocates of Texas challenged the validity of a standards to guide carriers in the performance of their
series of rules governing workers’ compensation delegated public func tion.” The court of appeals
medical-cost guidelines and reimbursement procedures declared the Dispute and Audit Rules, 28 Tex. Admin.
promulgated by the Texas Workers’ Compensation Code §§ 133.301-.305, to be invalid.
Commission (Commission). In 1995, the Commission The Supreme Court granted the Commission’s
published a Medical Fee Guideline that sets caps on the petition for review and heard argument on September 10,
amount a health-care provider may charge an insurance 2003.
company for any given medical procedure provided to an
injured worker. The Commission also promulgated a set III. ARBITRATION
of administrative rules, some of which implement and A. Enforcement/Employer Reserving Right To
govern procedures by which insurance carriers may audit Abolish Or Modify Agreement
health care providers’ billing. Patient Advocates 1. J.M. Davidson Inc. v. Webster, S.W.3d ,
challenged the validity of these rules on both procedural Tex. Sup. Ct. J. (December 31, 2003) [01-0774].
and substantive grounds. Patient Advocates claimed that The issue is whether an arbitration agreement
the Commission did not follow the procedures mandated between an employer and an employee is enforceable
by the Administrative Procedures Act in promulgating the when the agreement is contained in a document that
fees schedule. Specifically, Patient Advocates argued reserves to the employer the unilateral right to abolish or
that the Commission (1) had not provided a reasoned modify “any personnel policy” without prior notice. In
justification for establishing the fees guideline; (2) had not this lawsuit, Chelsey Webster sued his employer, J.M.
republished the fees guideline after making changes to it; Davidson, claiming he had been fired for filing a worker’s
and (3) had not made sufficient copies of the fees compensation claim. J.M. Davidson sought to compel
guideline available. Substantively, Patient Advocates arbitration under an alternative-dispute resolution policy
complained that the Medical Fee Guideline imposes an Webster signed when he was hired. Under the policy,
impermissible cap on medical costs. Patient Advocates Davidson reserved the right to abolish or modify “any
also claimed that the rules impermissibly delegated the personnel policy” without notice. The trial court denied
Workers’ Compensation Commission’s auditing powers Davidson’s motion to compel arbitration, and the court of
to private insurance companies and that the rules appeals affirmed in a split decision.
improperly created a statute of limitations. The Supreme Court held that the arbitration
The trial court granted summary judgment in the agreement was ambiguous as to whether the modification
Commission’s favor on all claims. The court of appeals language applied to the arbitration agreement. The
affirmed summary judgment on the procedural issues. question, the Court said, was whether the arbitration
The court of appeals held that (1) the Commission had policy was a “personnel policy,” within the meaning of
provided a reasoned justification for enacting the fees the agreement, and whether the reservation of rights
guideline and that the Commission was not required to rendered the agreement to arbitrate illusory. Because
republish the fees guideline after minor alterations the Court found that it was unclear as to whether the
because the amendments did not affect anyone who had arbitration agreement was a personnel policy under the
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agreement, the Court remanded the case to the trial court finding that a valid mechanic’s lien exists on homestead
for consideration of that issue. In In re Halliburton, 80 property. CVN, the contractor, demanded arbitration
S.W.3d 566 (Tex. 2002), however, the Court previously based on a construction-contract clause after the
held that when an employer’s right to modify or terminate Delgados ordered CVN to stop work on their house.
an arbitration agreement, by its express terms, applies The arbitrator awarded CVN damages and declared it
only prospectively to unknown claims, requires prior had constitutional and statutory liens for the full amount
notice, and applies to both the employer’s and the of the award. The trial court modified the arbitration
employee’s rights, the agreement to arbitrate is not award and declared CVN did not have a valid lien on the
illusory. property. The court of appeals reversed the modification
In dissent, Justice Schneider, joined by Justice of the damages award, but affirmed the decision on the
O’Neill, said the agreement was not ambiguous and that lien, reasoning that under the Texas Property Code a
the company’s promise to arbitrate was illusory. Justice court must review the validity of a lien before ordering or
Schneider observed that the arbitration policy lacked denying foreclosure.
protections similar to the ones the Court relied on in The Supreme Court held that both the trial court and
Halliburton to find the promises to arbitrate mutually the court of appeals exceeded their authority in reviewing
binding. the arbitration award because the validity of CVN’s lien
Justice Smith also dissented, agreeing with Justice claim was within the scope of the arbitration agreement,
Schneider that the arbitration agreement was not and the award did not violate public policy. The Court
ambiguous, but disagreeing that the promise to arbitrate said that an arbitration award cannot be set aside on
was illusory. Justice Smith said that the provision public policy grounds except in an extraordinary case in
allowing J.M. Davidson to “abolish or modify any which the award clearly violates carefully articulated,
personnel policy without prior notice” applied to the fundamental policies. According to the Court, the
arbitration policy, but did not waive the employee’s right mechanic’s liens awarded to CVN did not contravene
under Texas at-will employment law to contemporaneous constitutional and statutory protections, and the
notice of any change in the company’s arbitration policy. Delgados’ arguments that CVN failed to satisfy two of
the requirements for perfecting its liens were disputed
B. Enforcement/Fraudulent Inducement Claims and were decided by the arbitrator on evidence and
1. In re J.D. Edwards World Solutions Co., 87 S.W.3d briefs. Moreover, nothing in the arbitration proceeding
546 (Tex. October 10, 2002) [01-0630]. indicated the arbitrator completely disregarded the lien-
The issue is whether mandamus relief is available to perfecting requirements.
compel arbitration of a fraudulent inducement claim In dissent, Justice Hankinson said that the Court had
under an agreement to arbitrate “all disputes involving ignored the context of the issue presented, the consensus
[the] Agreement,” when the agreement specified that of most jurisdictions on how that issue should be resolved,
Colorado law would control and the arbitrator would be and the significant effects the opinion would have for
“appointed and operating under the Uniform Arbitration every Texas homeowner. Justice Hankinson said that
Act and the procedural rules of the American Arbitration under the Court’s opinion individual parties to a dispute
As sociation.” The trial court denied J.D. Edwards’s are now permitted to contract away the trial court’s
motion to compel arbitration of its fraudulent inducement statutory authority over the property in a foreclosure
claim, and the court of appeals denied mandamus relief. proceeding. Instead of ignoring the Legislature’s
The Supreme Court held that the parties’ agreement direction that only a court can order foreclosure of a
to arbitrate all disputes “involving” the underlying mechanic’s lien, Justic e Hankinson argued, the Court
contract was broad enough to encompass the fraudulent should have held that parties may arbitrate personal
inducement claim, relying in part on Colorado law. The liability for a debt, but a court must decide a lien’s
Court further concluded that mandamus relief was validity.
available because the interlocutory appeal provisions of
the Texas Arbitration Act did not apply. D. Modification of Award/Evident Miscalculation
or Mistake
C. Modification of Arbitrator’s Decision 1. Callahan & Assocs. v. Orangefield Indep. Sch.
1. CVN Group, Inc. v. Delgado, 95 S.W.3d 234 (Tex. Dist., 92 S.W.3d 841 (Tex. December 19, 2002)
December 31, 2002) [01-0682]. [01-0993].
The principal issue is whether the State’s arbitration The issue is whether an arbitrator’s refusal to award
law prevents a trial court from reviewing an arbitrator’s damages for a faulty driveway Callahan designed was an
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Supreme Court Update Chapter 11
“evident mistake or violated common law,” posing a fact the trial court excluded all claims based on conduct
issue that avoided summary judgment on the arbitration occurring after the contract was signed.
award. In this case, the arbitrator found both the school The Supreme Court held that the arbitration
district and Callahan at fault for the driveway’s failure agreement mandated arbitration of all the homeowners’
and awarded Callahan additional fees for work on the c laims, citing Prudential Securities Inc v. Marshall, 909
driveway but awarded no damages to the district. S.W.2d 896 (Tex. 1995), in which the Court had held that
The Supreme Court held that an arbitrator’s mere an employment agreement requiring arbitration of “any
failure to award damages is not a ground under the dispute, claim or controversy” required arbitration of
Texas Arbitration Act for modifying or correcting an defamation claims.
arbitration award. The Act only permits a court to
modify or correct an award that contains an “evident IV. ATTORNEYS
miscalculation of figures” or an “evident mistake in the A. Appointments
description of a person, thing, or property referred to in 1. Gibson v. Tolbert, 102 S.W.3d 710 (Tex. March 27,
the award.” 2003) [02-0190].
The question presented in this case is whether
E. Nonsignatories To Agreement “exceptional circumstances” were present that required
1. In re Weekley Homes, L.P., argument granted on the trial judge to appoint counsel in a civil case absent a
pet. for writ of mandamus, 46 Tex. Sup. Ct. J. statutory or constitutional provision requiring such an
1204 (September 25, 2003) [03-0309]. appointment. Here, a prison inmate, acting without
The issue in this original proceeding is whether counsel, sued a prison doctor for medical malpractice for
nonsignatory minor children are bound to a valid assigning him to a farm work detail after a back specialist
arbitration clause entered into by their parents concerning recommended against such an assignment. The trial
the construction of a family residence. Dawn and Scott court denied Tolbert’s motion to appoint him counsel.
Richardson entered into a contract with Weekley for the The court of appeals reversed, holding that the fact that
construction of a residence in Austin, Texas. This Tolbert was suing an employee of the very facility in
contract contained a valid arbitration clause. After five which he was incarcerated constituted exceptional
weeks in their new home, the Richardson family moved circumstances warranting appointed counsel.
out, alleging adverse health effects. The Richardsons The Supreme Court held that an indigent inmate
sued Weekley, alleging negligence, gross negligence, does not have a right to appointed counsel in a civil case
fraud, negligent misrepresentation, DTPA violations, merely because the inmate’s suit is against an employee
breach of contract, and products liability claims. The of the prison in which he is incarcerated. In Traveler’s
minor children, however, asserted only negligence, gross Indemnity Co. v. Mayfield, 923 S.W.2d 590, 594
negligence, and products liability claims for their personal (Tex.1996), the Court suggested that in exceptional
injuries. After a hearing, the trial court granted circumstances “justice may best be served by appointing
Weekley’s motion to compel arbitration with respect to a lawyer to represent an indigent civil litigant.” Beyond
all of the adult Richardsons’ claims, but the court denied that, the Court has never considered what might
Weekley’s motion with respect to the children’s claims. constitute “exceptional circumstances” warranting
The Supreme Court heard argument in this case on appointed counsel. But the mere fact that an indigent
December 10, 2003. inmate has sued a prison employee in the prison in which
he is incarcerated does not constitute exceptional
F. Scope of Agreement circumstances such that it warrants appointed counsel.
1. In re First Tex. Homes Inc., S.W.3d , 47 Tex. The Court also noted that Tolbert’s indigence would not
Sup. Ct. J. 97 (November 14, 2003) [02-0876]. prevent him from employing counsel on a contingency-
The Supreme Court considered in this case whether fee basis.
the trial court abused its discretion in ordering arbitration
for some but not all claims under a contract that made
arbitration applicable to “all disputes.” Homeowners
sought damages for alleged defects in their home, the
builder’s alleged violations of state and federal fair
housing laws, and intentional infliction of emotional
distress. On the builder’s motion to compel arbitration,
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B. Clients/Fiduciary Duty/Lawyer as City exception to the general rule arises when, like in this
Councilman case, one court renders an order that directly interferes
1. Joe v. Two Thirty Nine Joint Venture, 60 S.W.3d with another court’s jurisdiction. In such a situation, the
896 (Tex. App.–Dallas 2001), pet. for review Court has determined that an ordinary appeal is
granted, 46 Tex. Sup. Ct. J. 434 (February 13, inadequate and mandamus relief is available.
2003) [02-0218].
The issues in this case are whether: (1) a lawyer- D. Fees/Proof
legislator whose actions as a city councilman allegedly 1. S. Union Co. v. City of Edinburg S.W.3d ,
c onflict with the interests of his law firm’s clients is Tex. Sup. Ct. J. (October 31, 2003) [01-0785].
entitled to have his immunity defense ruled on before In this appeal from the City of Edinburg’s claim for
discovery; (2) the lawyer-legislator and his law firm have underpayment of natural-gas franchise fees, the city
a duty to the firm’s clients to check for and inform clients variously alleged breach of contract, fraud, and tortious
of potential conflicts between the clients’ interests and interference with the franchise agreement. Among the
the lawyer’s position as a city councilman on public issues raised on appeal was whether the court of appeals
issues; and (3) the lawyer-legislator is entitled to absolute erred by finding joint liability based on the gas supplier
or qualified immunity. The Supreme Court heard oral and its related subsidiaries operating a “single business
argument in this case on April 9, 2003. enterprise.” Edinburg’s claims arose from its contract
with Rio Grande Valley Gas Co. (RGVG) to supply gas
C. Disciplinary Proceedings/State Bar of to Edinburg customers. Under the franchise agreement,
Texas/Jurisdiction RGVG agreed to pay the city 4 percent of gross income
1. In re State Bar of Tex. [02-0293], consolidated from gas it sold in the city. The dispute started after
with In re State Bar of Tex. [02-0294], In re Bd. of subsidiaries of the company that owned RGVG–and
Disciplinary Appeals [02-0343], and In re Bd. of eventually other companies–began supplying Edinburg
Disciplinary Appeals [02-0344], 113 S.W.3d 730 industrial customers at spot-market rates lower than the
(Tex. July 3, 2003). regulated rates RGVG charged, but using RGVG’s
In this case, the Supreme Court considered whether pipelines to deliver the gas. Eventually, RGVG
a party is entitled to mandamus relief when a trial court transferred its entire gas-transportation system to a
voids a judgment by the Texas Board of Disciplinary related subsidiary. The City claimed breach of contract
Appeals suspending a lawyer from practicing law. The and fraudulent inducement, among other things, and
Supreme Court denied the lawyer’s petition to review the sought a finding that certain companies were jointly and
Board of Disciplinary Appeals’ suspension order and severally liable to the City under a theory of “single
affirmed the judgment after the lawyer, on rehearing, business enterprise,” under which separate corporations
brought a disqualification challenge to a board member may be jointly and severally liable for the debts of
based on new facts. After the Court denied review, the another, based on a common business purpose. Based
lawyer sued in district court to declare the suspension on the jury’s findings, the trial court rendered judgment
judgment void based on the disqualification issue. The against the defendants, jointly and severally, for over $6.5
trial court voided BODA’s suspension order. The State million in actual damages and prejudgment interest, plus
Bar of Texas and BODA sought mandamus relief over $3.5 million in attorney’s fees, including conditional
directly from the Supreme Court, arguing that the trial appellate attorney’s fees. The court of appeals reduced
court interfered with BODA’s continuing jurisdiction over the actual damages award to $774,445, including
the lawyer’s suspension and litigated an issue already prejudgment interest, affirmed the award of attorney’s
decided by the Court. fees, and reversed the awards based on fraud.
The Supreme Court conditionally granted mandamus T he Supreme Court held that provisions of the
relief, holding that the district court interfered with franchise agreement reflected the parties’ intent that
BODA’s jurisdiction. Texas Rule of Disciplinary “gross income derived from all gas sales within the City”
Procedure 2.20 establishes that BODA retains (on which the franchise fee was to be calculated) meant
jurisdiction during an attorney’s entire suspension period. gross income from RGVG’s sales within the city, not
Based on Rule 2.20, a board judgment revoking a sales by other parties. Thus, RGVG was not required to
probated suspension cannot be superseded or stayed. pay the fee for gas that was transported through its
Incidental district court rulings, which include pleas to the pipeline system and sold within the city by unregulated
jurisdiction, generally are not reviewable by mandamus affiliated suppliers. The Court did not decide whether
because an adequate appellate remedy exists. But an Texas should recognize the single business enterprise
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theory as an addition to the alter-ego theory for VI. BATTERY
disregarding corporate structure and the joint-venture, A. Parental Consent/Resuscitation of Premature
joint-enterprise or partnership theories for imposing joint Infant
and several liability. The Court further said that article 1. Miller v. HCA, Inc., 118 S.W.3d 758 (Tex.
2.21 of the Texas Business Corporation Act provided the September 30, 2003) [01-0079].
exclusive remedy regarding shareholder and affiliate The narrow question presented in this case of first
liability and that the questions submitted to the jury were impression is whether Texas law recognizes a claim by
intended to embody article 2.21's requirements. Finally, parents for either battery or negligence against a hospital
the Court held that the gas suppliers did not tortiously because the hospital allowed physicians to provide
interfere with the city's right to franchise tax revenue resuscitative medical treatment to their premature infant
from RGVG; and that RGVG did not fraudulently induce without their consent. In this case, approximately eleven
the city to enact an ordinance embodying the franchise hours before the parents’ child was born four months
agreement and RGVG’s obligation to pay franchise prematurely, the parents had given oral instructions that
taxes. “heroic” measures should not be performed on their
daughter. When the child was born alive but in distress,
V. BANKS AND BANKING the treating physician provided life-sustaining medical
A. Forgery/Notice to Bank treatment. The child survived, but suffered from serious
1. Cmty. Bank & Trust, S.S.B. v. Fleck, 107 S.W.3d disabilities, and the parents sued the hospital for battery
541 (Tex. December 5, 2002) [00-1122]. and negligence. The parents’ negligence claim was
The issue is whether the bank’s deposit agreement premised on the hospital’s policies regarding treatment of
requiring notice of unauthorized checks honored by the an infant without parental consent, not on any physician’s
bank barred Fleck’s suit over forgeries. In this case, negligence in treating the child. A jury found for the
Fleck, personal representative of an estate, sued over parents, but the court of appeals reversed, concluding
forged checks written on the decedent’s account before that parents cannot refuse life-sustaining treatment for an
her death. The deposit agreement specified that notice infant whose condition is not certifiably terminal.
of unauthorized check approvals had to be made no later The Supreme Court affirmed the court of appeals’
than 14 days after the bank sent the account statement judgment, but for different reasons. The Court noted that
showing the checks’ approval. Fleck notified the bank 11 there was no dispute that the infant could not be fully
months after the statement and sued the bank after it evaluated for medical treatment until her birth. Thus, the
refused responsibility for the forgeries. The trial court Court said, any decisions concerning the infant’s
granted Fleck’s summary-judgment motion after the treatment could not be fully informed decisions until that
bank’s pleadings failed to mention the deposit agreement. time, and the evidence established that when the infant
The court of appeals affirmed, holding that the deposit was born, the physician attending the birth was faced
agreement was void under Texas Civil Practice and with emergent circumstances—i.e., the child might
Remedies Code section 16.071(a) because a contract survive with treatment but would likely die if treatment
stipulation requiring notification within less than 90 days was not provided before either parental consent or a
was unreasonable. The court stated that its decision was court order overriding the withholding of such consent
not contrary to American Airlines Employees Credit c ould be obtained. The Court therefore held that the
Union v. Martin, 29 S.W.3d 86 (Tex. 2000). emergent circumstances in this case provided an
The Supreme Court denied the petition for review exception to the general rule impos ing liability on a
but issued a per curiam opinion disapproving of the court physician for treating a child without parental consent.
of appeals’ statement regarding section 16.071, stating: The Court made it clear, however, that a doctor cannot
“In Martin we stated that ‘section 16.071 by its terms create emergent circumstances from his or her own
does not apply [to bank deposit agreements] when the delay or inaction.
notice to be given is not notice of a claim for damages,
but rather notice of unauthorized transactions.’” VII. BENCH WARRANT
A. Abuse of Discretion
1. In re Z.L.T., S.W.3d , 47 Tex. Sup. Ct. J. 113
(November 21, 2003) [02-0474].
The issue is whether in this paternity action the trial
court abused its discretion by implicitly denying a pro se
inmate’s request for a bench warrant. The record in this
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case did not reflect an explicit ruling on the inmate’s court granted summary judgment for the King Ranch, but
request, but the trial court proceeded to trial without the court of appeals reversed.
issuing the bench warrant. The court of appeals The Supreme Court held that the Chapman heirs
concluded that the trial court abused its discretion by presented no evidence of extrinsic fraud to support their
failing to expressly rule on the inmate’s request to be claim for a bill of review and that King Ranch established
present at all hearings and rejected the argument that the adverse possession as a matter of law to defeat the
trial court had no independent duty to identify and trespass-to-try-title claim. With regard to the bill of
balance the factors courts must weigh in determining review, the Court said that Kleberg’s simultaneous
whether a bench warrant should issue in a civil representation of King in unrelated matters was not
proceeding. evidence of a fraudulent conspiracy between the two and
The Supreme Court held that the inmate did not that such dual representation is permissible under current
meet his burden under Texas rules to identify with ethical rules and was not prohibited in the 1880s. The
sufficient specificity the grounds for the ruling he sought. disputed archivist’s quote, even assuming its accuracy,
A litigant’s status as an inmate does not alter that burden. said nothing about King’s actions or intent and could not
The central issue, the Court explained, is the trial court’s support an inference of extrinsic fraud. With regard to
responsibility to independently inquire into relevant facts their trespass-to-try-title claim, the Chapman heirs argued
not provided by the moving party. The inmate’s request that the 1883 consent judgment was not binding on them
for a bench warrant included no information by which the because Texas law required Helen Chapman’s heirs to
c ourt could assess the necessity of his appearance. be joined as parties in her lawsuit. But the Court said
Therefore, the trial court did not err in failing to rule on that Mrs. Chapman judicially admitted repudiation as to
his motion. King’s exclusive claim to the land in her lawsuit. And
even if she had not, the judgment itself was a “notorious
VIII. BILL OF REVIEW act of ouster” that repudiated any claim by her or her
A. Trespass to Try Title heirs. If the judgment was a nullity as to the Chapman
1. King Ranch, Inc. v. Chapman, 118 S.W.3d 742 heirs, the statute of limitations continued to run against
(Tex. August 28, 2003) [01-0430]. the heirs notwithstanding their minority. In addition to
The principal issues in this appeal involving a claim repudiation, King Ranch produced summary judgment
to part of the King Ranch and to land in and around evidence that it had occupied the land for its own
Kingsville from an 1850s land grant are: (1) whether the exclusive use and enjoyment for more than 100 years,
heirs of William Chapman presented enough evidence to proving adverse possession as a matter of law.
challenge by a bill of review an 1883 settlement and
judgment in a land dispute; (2) whether the 1883 IX. CLASS ACTION
judgment bars Chapman’s trespass-to-try-title claim; and A. Certification
(3) whether the King Ranch can establish a valid adverse 1. Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675
possession claim to the property. In this case William (Tex. October 31, 2002) [00-1162].
Chapman’s heirs filed the lawsuit claiming an interest in The issue is whether certification of two nationwide
land known as the Rincon de Santa Gertrudis (“the classes conflicted with standards established by
Rincon”) after publication of allegedly new information Southwest Refining Co. v. Bernal, 22 S.W.3d 425 (Tex.
about the 1883 settlement. A newspaper quoted a King 2000). In this case, dentists who bought office-
Ranch archivist as saying Robert Kleberg, an attorney management software from Schein and two subsidiaries
for rancher Richard King, was “looking after” King’s sued for breach of contract, deceptive trade practices,
interest when Kleberg also represented Chapman’s fraud, negligent misrepresentation, and promissory
widow in a suit over the Rincon’s ownership. In that suit, estoppel. They alleged the software failed to perform
filed in 1879, Chapman’s widow, Helen Chapman, properly and that they were charged for technical support
claimed one-half interest in the Rincon. After Helen that should have been free and for upgrades they never
Chapman died, Kleberg represented her executor. As requested. They pleaded actual, consequential, punitive
that suit continued, King hired Kleberg for an unrelated and statutory damages. This interlocutory appeal
matter. After a settlement, the judgment acknowledged challenged the trial court’s certification of two classes of
that Helen Chapman’s estate was entitled to one-half the purchasers, one for the DOS version and one for the
land she sued for, but noted that King paid the estate in Windows version. The court of appeals affirmed the trial
order to take title to the land as sole owner. The trial court’s class certification.
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The Supreme Court first determined that it had because all of plaintiffs’ claims should be governed by
conflicts jurisdiction over the case. Plaintiffs’ argument Texas law. Schein offered evidence of the differences
that the court of appeals’ decision did not conflict with in the law of other states, but the Supreme Court said it
Bernal because the court did not refuse to follow Bernal did not have the benefit of an analysis of those
did not negate a conflict with Bernal. What is required differences by the lower courts. Accordingly, the Court
for conflicts jurisdiction is that the two decisions cannot could not say that Texas law would not govern any of the
stand together. The Court said the Plaintiffs correctly class members’ other claims besides those for breach of
asserted that Bernal should not be read to require a “trial licensing agreements with choice-of-law provisions. The
plan” by that name, set out in a separate document, but Court could say, however, that plaintiffs failed to
according to Bernal, Texas Rule of Civil Procedure 42 demonstrate that Texas law should apply to so many of
does require a rigorous analysis and a specific those claims that common legal issues predominated.
explanation of how class claims are to proceed to trial. Superior adjudication. The court of appeals did
The trial court did not set out any plan for trying the not discuss whether a class action is superior to the
plaintiffs’ claims. The certification order only listed some pursuit of individual claims. The trial court alluded to the
common issues and simply concluded that there is requirement in a single sentence concluding that the
“nothing to indicate” that individual claims could not be economics of pursuing these claims individually by small-
managed. The court of appeals brushed aside arguments business owners would not be feasible for the members
that the trial court had not explained how other individual of both subclasses, but the amount of recovery might not
issues, like reliance, and other claims, like fraud, would be be so small as to prohibit individual claims. Plaintiffs
tried. The Supreme Court said, however, that Bernal specifically pleaded that they would limit their recovery
does not permit these issues to be a matter of an to $74,000 so as to avoid removal to federal court,
appellate court’s confidence in a trial court’s rulings; strongly suggesting that individual recoveries could
rather, Bernal requires actual, demonstrated compliance exceed that figure. Nothing in the record suggested any
with Rule 42. The court of appeals’ contrary holding basis for the trial court’s conclusion that claims of the
thus conflicted with Bernal. size indicated would not be prosecuted individually simply
Turning to the merits of the case, the Court reversed because plaintiffs are small businesses. But, more
and remanded, holding that the certification order was importantly, plaintiffs failed to satisfy the superiority
improper for the following reasons: requirement of Rule 42(b)(4) by failing to show that a
Reliance. Plaintiffs contended that they had class action would be either more fair or more efficient
established “class-wide reliance” on misrepresentations under the circumstances.
made by Schein, but this was not supported by the In dissent, Justice O’Neill argued that the Court had
record. The trial court did not explain in its certification no jurisdiction to consider the merits of the trial court’s
order how plaintiffs could avoid individual proof of certification order. She observed that class certification
reliance or why the necessity for such proof would not decisions present complex and important issues–concerns
defeat the predominance requirement for certification. that would, perhaps, justify the Court’s interlocutory
The court of appeals premised its affirmance of the review of class-certification orders should the Texas
certification order on the mistaken belief that reliance Legislature decide to grant it jurisdiction to do so. But,
was not an element of plaintiffs’ principal causes of Justice O’Neill said, the Legislature has limited the
action. Court’s jurisdiction over interlocutory appeals like the one
Damages. Evidence existed that plaintiffs’ claim for in this case unless there is a dissenting opinion in the
restitution of amounts paid could be proved by Schein’s court of appeals or the court of appeals’ decision
records or by checks, charge slips, receipts or other conflicts with a prior decision of this court or another
evidence of payment. The record apparently court of appeals. Justice O’Neill remarked that the
demonstrated that the determination of such amounts Court, frustrated by this legislative constraint, distorted
would be common to the class and would not require well-established conflicts jurisprudence to usurp the
individual examination of class members except in power that the Legislature deliberately denied and that
unusual instances. But the same was not true for the important issues presented in this case could not
plaintiffs’ other damage claims. Consequential damages, override due respect for precedent and legislative
for one, would have to be determined class member by boundaries.
class member.
Common legal questions. The lower courts
determined that common legal questions predominated
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2. Compaq Computer Corp. v. LaPray, 79 S.W.3d 779 C. Opt Out Procedures/Municipalities
(Tex. App.–Beaumont 2002), pet. for review 1. City of San Benito v. Rio Grande Valley Gas Co.,
granted, 46 Tex. Sup. Ct. J. 762 (June 5, 2003) [02- 109 S.W.3d 750 (Tex. June 26, 2003) [02-0038].
0705]. This case involves a class action brought by South
This case involves a class action certified under Texas cities over a franchise-fees dispute related to gas
Texas Rules of Civil Procedure 42(b)(2) and 42(b)(4). sales within city limits. The principal issues are (1)
On January 28, 2000, Hal LaPray filed this class action whether unnamed class members must have intervened
on behalf of himself and an estimated 1.8 million in the trial court to appeal either the denial of their opt-out
purchasers against Compaq Computer Corp. The class requests or the final judgment approving the class
alleges that Compaq “designed, sold, manufactured, settlement, and (2) whether the court of appeals erred by
offered for sale or created” computers that contain refusing to allow the cities to opt out of the class because
floppy disk controllers with a defective microcode. The their decisions to do so allegedly failed to comply with the
class argues that the disk controller was defective “in the Texas Open Meetings Act. The trial court certified the
box” when the class members bought the computers and class and set an opt-out deadline. San Benito and other
Compaq failed to meet recognized industry standards. cities in this appeal, with one exception, gave opt-out
The class sued Compaq for declaratory relief, breach of notice before the deadline. Although the respective city
contract, and breach of Compaq’s express warranty. councils had not specifically approved the decision to opt-
The class sought certification as a “Nationwide Equitable out before the opt-out deadline, many later voted to ratify
Relief Class” and a “Nationwide Damages” class. After the opt-out decisions. The trial court ruled that those
a hearing, the trial court certified the class as a cities did not comply with the open meetings law and that
mandatory declaratory judgment class under Rule later ratification of the opt-out decision did not “relate
42(b)(2) and alternatively as an opt-out class for back” to make the opt-out notice timely and valid. The
damages under Rule 42(b)(4). The court of appeals court of appeals dismissed the cities’ appeal for lack of
affirmed the trial court’s certification order. jurisdiction and denied their petition for mandamus relief.
The Supreme Court granted Compaq’s petition for The Supreme Court held that an unnamed class
review and heard argument on October 15, 2003. member is not required to intervene in order to appeal its
objections to a class settlement or its opt-out request and
B. Commonality that the cities could authorize their attorneys to opt out of
1. Union Pac. Res. Group, Inc. v. Hankins, 111 the litigation without formal action in an open meeting.
S.W.3d 69 (Tex. July 3, 2003) [01-0836]. The Court said that the Cities’ attorney had implied
In this case, the Supreme Court determined whether authority under the cities’ contracts to take them out of
a proposed class met the requirements for class the class, similar to an attorney’s authority to nonsuit a
certification under Texas Rule of Civil Procedure 42. client’s claim; thus, the cities were not required to
The trial court certified a class consisting of gas royalty specifically authorize the opt-out requests. The Court
owners in Crockett County who claimed that the lessees also said that requiring intervention before a settlement-
breached an implied duty to “obtain the best current price fairness hearing creates more work with no
reasonably obtainable.” As certified, the class included corresponding benefit, and that a timely request to opt out
some royalty owners whose leases calculated royalty is sufficient notice to preserve a complaint for appellate
payments on an amount-realized (or proceeds) basis and review.
other royalty owners whose leases calculated royalty
payments based on current market value. Because a X. CONSTITUTIONAL LAW
covenant to obtain the best price reasonably attainable is A. Equal Rights Amendment
implied under Texas law only to proceeds leases, and not 1. Bell v. The Low Income Women of Tex., 95
to market-value leases, the Court concluded that the S.W.3d 253 (Tex. December 31, 2002) [01-0061].
royalty owners did not establish that there were The issue is whether Texas statutes that effectively
“questions of law or fact common to the class” sufficient limit state funding for abortions are constitutional. The
to support certification. Low-Income Women of Texas (TLIWT) sought a
declaratory judgment against the State of Texas,
challenging both the Maternal-Infant Health Act and the
Texas Medical Assistance Program (TMAP), Texas’s
Medicaid program. Under TMAP, the Department of
Health and Human Services “may not authorize the
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provision of any service to any person under the [State’s directed at women as a class as it is at abortion as a
Medicaid] program unless federal matching funds are medical treatment. To analyze whether the Texas
available to pay the cost of service.” TEX. HUM . RES. Medicaid scheme is merely a pretext designed to prefer
CODE § 32.024(e). The Hyde amendment, under federal males over females for health care requires examination
law, restricts federal matching funds available for of the Medicaid funding scheme as a whole, which
abortions to cases involving rape or incest, or in which involves the interplay between the limitation on Texas
the pregnancy threatens the mother’s life. Because Medicaid treatment to what the federal government pays
federal matching funds are available for abortions only in for and the Hyde Amendment. Federal law provides
these limited circumstances, Texas’s Medicaid program guidance as to how courts should decide the issue when
only covers abortions under the same limited classification is not overtly gender-based and arises at
circumstances. The State acknowledged that under least in part from a law neutral on its face. The Court
TMAP, other medical assistance is provided upon a noted that in Village of Arlington Heights v.
showing of medical need. TLIWT alleged that TMAP’s Metropolitan Housing Development Corp., 429 U.S.
implicit incorporation of the Hyde amendment’s abortion 252 (1977), the U.S. Supreme Court established that
funding limits violates Texas’s Equal Rights Amendment, discriminatory intent could be shown by available
Equal Protection Clause, and privacy guarantees. Both circumstantial and direct evidence, including
parties moved for summary judgment. disproportionate impact, the context for the challenged
The trial court granted the State’s motion and action, the sequence of events leading to it, departures
rendered judgment for the State. On appeal, the court of from normal procedural and substantive course, and the
appeals held that: (1) TLIWT’s declaratory action under legislative or administrative history. In this case, the
the Maternal-Infant Health Act program was not ripe Texas Legislature intended from its beginning to conform
because the State ceased funding for the program in the Texas Medicaid program to the federal program’s
1991, but (2) TMAP “effects an impermissible form of contours, and the record demonstrated the State has
sex discrimination against pregnant women” in violation never deviated from it. And, to the extent federal money
of the Texas Equal Rights Amendment because TMAP has been available, Texas has consistently paid for
applies a different standard of medical necessity to men medically necessary abortions. The Court thus
than it does to women, without a compelling state interest determined that the historical background of the Medicaid
to justify the different treatment. Accordingly, the court program’s creation and administration supported the
of appeals dismissed the Maternal-Infant Health Act conclusion that the abortion-funding restriction did not
claim, reversed the trial court’s summary judgment, discriminate because of gender. As for the Hyde
rendered judgment granting TLIWT declaratory and Amendment, the Court said its abortion restriction
injunctive relief, and remanded the case to the trial court implements a legitimate governmental purpose, a value
to determine attorney’s fees and costs. judgment condoned by the U.S. Supreme Court favoring
The Supreme Court held that the restriction on childbirth over abortion. Although the Court recognized
medically necessary abortions does not violate the Texas that the Texas Medicaid scheme could give rise to an
Equal Rights Amendment because it does not inference of discriminatory purpose, the inference was
discriminate by gender, is rationally related to a legitimate not proved. Because the Court found that the Medicaid
governmental interest, and does not violate State privacy restriction on medically necessary abortions was
or State equal-protection rights. Regarding the specific rationally related to legitimate governmental purposes, it
constitutional challenges, the Court said the following: did not violate the Equal Rights Amendment.
Equal Rights Amendment. Because the State treats State Right to Privacy. Plaintiffs argued that paying
indigent women seeking abortions differently from all for medical expenses for childbirth but not for medically
others, plaintiffs established the first prong of the analysis necessary abortions effectively coerced a woman’s
in In re McLean, 725 S.W.2d 696 (Tex.1987) (plurality decision whether to terminate or continue a pregnancy,
opinion) that equality under the law has been denied. But but the Court noted that the U.S. Supreme Court has
the next question under McLean is whether equality has distinguished between direct state interference with a
been denied “because of” gender. If the State were to protected right and state encouragement of an
deny funding of all medically necessary pregnancy- alternative. Citing Harris v. McRae, 448 U.S. 297
related services, the classification might be comparable (1980), the Court concluded that the funding restriction
to overt gender-based distinction. Texas pays for all leaves an indigent woman with at least the same range of
other medically necessary pregnancy-related services, choice to obtain a medically necessary abortion as she
but not abortions. The classification is not so much
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would have had if the State had chosen not to subsidize City of Ladue v. Gilleo, 512 U.S. 43 (1994), and
health-care costs at all. Metromedia Inc. v. City of San Diego, 453 U.S. 490
State Equal Protection Clause. The Court said that (1981). The Court determined that the Highway
the Legislature’s intent from the Medicaid program’s Beautification Act is not content-based because it
inception has been to provide indigent health care only to permits commercial and noncommercial speech in all
the extent that federal matching funds are available. areas if the speech relates to an activity on the property
Even under the more rigorous standard of rational basis and permits both types of speech in all commercial and
review under the Texas Equal Protection Clause industrial areas, even if the speech does not relate to an
advocated by the plaintiffs–that a statutory classification activity on the property. Moreover, the Texas
must be related to the very object or subject of the Legislature did not adopt the Texas Highway
legislation–the Court concluded that the Texas Medicaid Beautification Act because it disagreed with any
abortion restriction was rationally related to the particular type of message, but instead adopted the Act
underlying legislative purpose and did not violate state to control the secondary effects of billboards and signs
equal protection. along the interstate and primary highway system.
Because the Act’s purpose is unrelated to expressive
B. First Amendment/Free Speech/Texas Highway content, it is deemed neutral, even if it has an incidental
Beautification Act effect on some speakers or messages but not others.
1. Tex. Dep’t of Transp. v. Barber, 111 S.W.3d 86 And because the Court concluded that the Texas Act is
(Tex. July 3, 2003) [01-0414]. content-neutral, the constitutional test the Court applied
In this case, the Supreme Court determined whether is whether the Act is narrowly tailored to serve a
the Texas Highway Beautification Act violated Barber’s substantial state interest. The Court found the Act
free-speech rights by forbidding him from placing a sign sufficiently narrowly tailored to serve a substantial state
on his property that warned drivers on the interstate interest because it contains exemptions to accommodate
highway about police searches. Barber, an attorney, as much speech as possible and still accomplish the goals
erected a sign that said “Just say NO to searches” and of preserving the landscape and promoting travel safety.
included a phone number that directed callers to a voice As for broader state constitutional protection, the
message warning motorists that officers do not have Court said Barber did not articulate any reasons based on
blanket authority to search cars they stop. TxDOT the text, history or purpose of Article I, section 8 of the
sought a court order requiring Barber to take the sign Texas Constitution to show that its protection of
down, and Barber challenged the Act’s constitutionality noncommercial speech is broader than that provided by
as applied to his expression of noncommercial, ideological the First Amendment of the United States Constitution
speech under both the federal and state constitutions. under the circumstances presented.
Barber argued, in part, that the law is unconstitutionally In a dissenting opinion, Justice Owen, joined by
c ontent-based because it allows, among other things, Justice Hecht and Justice Smith, said that the Texas
political-campaign signs along the highway and signs for Highway Beautification Act cannot be distinguished from
businesses at their locations. The trial court ordered the city ordinance held unconstitutional in City of Ladue
Barber to take down the sign. The court of appeals v. Gilleo. As a result, the reasoning in that case, as well
reversed, holding the state law unconstitutional as applied as other U.S. Supreme Court opinions dealing with
to Barber because it discriminates against purely restrictions on signage, compels the conclusion that the
ideological” speech. Act is constitutionally infirm. Justice Owen questioned
The Supreme Court reversed, holding that (1) the in the first instance whether the restrictions the Act
Act is “content-neutral” and constitutes a valid, imposes are content-neutral, noting that the Act permits
constitutional time, place and manner restriction on on-site commercial speech and some noncommercial
Barber’s free-speech rights as applied to his billboard and speech, but prohibits a property owner from expressing
(2) the Texas Constitution affords him no more protection a broad range of noncommercial speech. According to
under the circumstances than the U.S. Constitution. The Justice Owen, the Act is content based because whether
Court stated that the U.S. Supreme Court has indicated a sign is prohibited could only be determined by
a willingness to treat some content-based regulations as examining its contents. Even if the Act were content
content neutral if the regulations are motivated by neutral, however, it would still be unconstitutional under
permissible content-neutral purposes, citing City of City of Ladue, Justice Owen said. Although the sign at
Renton v. Playtime Theatres,475 U.S. 1132 (1986), issue in this case was larger than the sign at issue in City
Ward v. Rock Against Racism, 491 U.S. 781 (1989), of Ladue and was erected on private property that was
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not the residence of the owner, Justice Owen said the In a concurring opinion, Justice Wainwright said that
U.S. Supreme Court’s decision in City of Ladue could when a “voluntarily” executed relinquishment affidavit is
not be so narrowly read as to turn entirely on the size of the sole ground for terminating parental rights, placing the
the sign or, more importantly, on whether a private burden on the parents to set aside the affidavit–as the
property owner resides on the property. Justice Owen court of appeals and the parties did–may run afoul of
also stated that nothing in the legislative history or the constitutional and statutory mandates. The burden of
record of the case suggested that the secondary effects proof issue, however, was not briefed, nor was it
of signs like Barber’s distinguish such signs from speech expressly decided in the courts below, Justice
that is permissible under the Act. In short, Barber’s sign Wainwright said. Moreover, Justice Wainwright
was no more harmful than the types of signs the law concluded that the mother’s appeal was unsuccessful
permits. regardless of whether or not she carried the burden of
proof, so a decision on that issue was not necessary in
C. Preservation of Claim this case.
1. In re L.M.I., 119 S.W.3d 707 (Tex. September 18, In a concurring and dissenting opinion joined by
2003) [02-0244]. Chief Justice Phillips and joined in part by Justice Hecht
In this case, the trial court terminated parents’ rights and Justice Jefferson, Justice Owen stated that there
to their twin boys based on the parents’ voluntary was no clear and convincing, legally sufficient evidence
affidavits of relinquishment. The principle issues are: (1) that material parts of the affidavit the father signed were
whether the adoption attorney’s failure to translate the disclosed to him and, thus, that he actually swore to and
affidavit of relinquishment into the father’s native agreed to be bound by the affidavit. Although the Court
language violated his constitutional right to due process; concluded that the trial court could have surmised that he
and (2) whether the mother’s signature on the affidavit understood more English than he and others said he
of relinquishment was procured by undue influence or could, Justice Owen pointed out that surmise is no
overreaching. At the conclusion of a bench trial, the trial evidence at all, much less clear and convincing evidence.
court terminated the parent-child relationship between In dissent, Justice Hecht, joined by Justice Jefferson,
natural parents and their twin sons, concluding that their said that the father did enough to preserve his due
affidavits of relinquishment were voluntarily executed process claim in the lower courts. According to Justice
and were not procured by undue influence, coercion or Hecht, the father’s appellate lawyer clearly called the
overreaching. The court of appeals affirmed. termination of his parental rights a due-process violation.
The Supreme Court held that the father did not And although his trial lawyer did not use those same
preserve the issue he presented for appellate review. words, Justice Hecht said termination of parental rights,
The father’s answer and counterclaim to the termination which are fundamental and constitutional in their
proceedings cited no constitutional authority and he did magnitude, should not turn on trifling points regarding the
not raise the due-process issue in any post-judgment construction of appellate briefs. The father had clearly
motion. The Court said that allowing appellate review of argued in the trial court and on appeal that he did not
unpreserved error would undermine the Legislature’s voluntarily relinquish his rights to his children because he
intent that parental-termination cases be expeditiously did not understand the affidavit of relinquishment he
resolved. signed and it was not translated into his native tongue.
In an opinion joined by Justices Enoch, Schneider
and Smith, Justice O’Neill said that the mother also failed D. Retroactive Laws
to preserve her undue-influence and fraud complaints. 1. In re A.V., 113 S.W.3d 355 (Tex. July 3, 2003)
The mother argued in the Supreme Court that she agreed [01-0706].
to sign a voluntary affidavit of relinquishment based on The principal issues in this parental-rights
unenforceable promises made by the adoptive parents to termination case are (1) whether two years’
send her pictures and updates about the children, but she incarceration as statutory grounds for termination means
did not plead or move after trial to challenge the two years before or after the State files its termination
enforceability of the adoptive parents’ promises. Justice petition and (2) whether it is an unconstitutional,
O’Neill also said that the mother never raised in the trial retroactive application of the law to terminate parental
court her complaint that the police detective and his wife rights based on a criminal conviction that occurred before
and the mother’s sister acted illegally as adoption such conviction became a statutory ground for
intermediaries and never secured a ruling on this theory termination of parental rights. In this case the father was
in the trial court. serving a federal prison sentence for a drug conviction
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when the state moved to terminate his and the mother’s standard for providing a minimum public
parental rights based, in part, on a statutory ground education–“general diffusion of knowledge.” The court
allowing for termination if a parent has knowingly also set a threshold that at least close to half the State’s
engaged in criminal conduct for which the parent is school districts must be taxing at the maximum rate to
incarcerated and unable to care for the child “for not less establish that the state-financing system had become an
than two years from the date of filing the petition.” TEX unconstitutional, statewide property tax. Because the
FAMILY CODE § 161.001(1)(Q)). The Supreme Court court concluded that the school districts could not show
held that the incarceration time period and inability to that a sufficient number of the state’s school districts
care for the child is prospective and that the subsection were taxing at the maximum rate, the court determined
is constitutional even though applied to a parent that the districts could not show an unconstitutional tax
incarcerated before the subsection’s effective date. and denied their request to replead their case. The court
of appeals affirmed the trial court’s decision to dismiss
E. School Finance the suit, but rejected the trial judge’s analysis that close
1. W. Orange-Cove Consol. I.S.D. v. Alanis, 107 to half the school districts taxing at the maximum rate
S.W.3d 558 (Tex. May 29, 2003) [02-0427]. would establish an unconstitutional statewide property
This case involves a constitutional challenge to tax. The court of appeals focused on the question of
Texas’s school-finance system. The principal issues are whether any of the districts were forced to tax at the
(1) whether to present a legally cognizable challenge to maximum rate just to provide an accredited education.
the system West Orange-Cove and three other school The Supreme Court reversed and remanded,
districts were required to plead that they, and half or reaffirming the “meaningful discretion” test from
close to half of all other school districts, were forced to Carrollton-Farmers Branch Independent School
tax at the highest allowable tax rate to provide an District v. Edgewood Independent School District, 826
accredited education, and (2) whether the school districts S.W.2d 489 (Tex. 1992) (Edgewood III), to decide
should have been given an opportunity to amend their whether a state-imposed taxing scheme is an
pleadings or conduct discovery after the trial court or the unconstitutional ad valorem tax, noting that the
court of appeals decisions. The overriding issue in this determining factor is the extent of the state’s control over
case and two previous challenges to Texas’s school the taxation process, and holding that the school districts
finance system is whether the state has imposed an should be allowed to replead their case and offer proof
unconstitutional statewide property tax. In the last that they are taxing at the maximum allowable rate either
decision upholding the state’s school-financing scheme, to satisfy accreditation standards or a general diffusion of
Edgewood Independent School District v. Meno, 917 knowledge. The Court disagreed with the trial court on
S.W.2d 717 (Tex. 1995) (Edgewood IV), the Court the number of districts that have to be taxing at or near
noted that “some” school districts eventually “may be the maximum rate to state a constitutional claim, holding
forced to tax at the maximum allowable rate just to that a single district can state a claim of an
provide a general diffusion of knowledge” and that unconstitutional property tax if it alleges it is constrained
“general diffusion of knowledge” establishes the by the state to tax at a particular rate.
constitutional requirement for the Sate’s support of its In reviewing the trial court’s dismissal on the
public schools. In this case West Orange-Cove and the pleadings, the Court said that to obtain dismissal the State
other districts alleged that they were taxing at or near the must establish as a matter of law that the school districts
maximum tax rate to “educate their students,” citing are not forced to tax at maximum rates either to meet
Edgewood IV. Because of that, they argued, the accreditation standards or to provide a general diffusion
districts had no meaningful discretion in setting their tax of knowledge, but the State failed to meet its burden. In
rates, making the school-finance system an addition, the Court said that the State was also not
unconstitutional state property tax. entitled to dismissal on its argument that the mere
The State filed special exceptions to the school existence of local-option homestead exemptions shows
districts’ pleadings, and the trial court dismissed the that the school districts are not forced to tax at maximum
lawsuit, ruling that the school districts failed to state a rates unless the State establishes that fact as a matter of
cognizable constitutional claim because they failed to law, which it failed to do. The school districts were thus
allege in their pleadings that they were taxing at or near entitled to attempt to show that homestead exemptions do
the maximum rates allowed by state law in order to meet not afford them meaningful discretion in setting tax rates.
state-mandated accreditation requirements. The trial The Court also said that the school districts need not
court equated school accreditation with the constitutional actually be taxing at maximum rates if they can show
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that they couldn’t meet accreditation standards or provide Chapter 142 of the Property Code and the Trust Code
a general diffusion of knowledge even if they were. allows an exculpatory clause to relieve a corporate
In a concurring opinion, Justice Enoch said the trustee from liability for self-dealing (defined as
Legislature, through the Texas Education Code, requires misapplying or mishandling trust funds), unless those
only that school districts provide an accredited education. activities violate the prohibitions in sections 113.052 and
Thus, on the narrow question in this case, Justice Enoch 113.053 of the Code. Realizing an investment tax loss
said the Court was correct that the school districts should and assessing fees in connection with the bank swap was
be afforded the opportunity to plead that they must tax at not evidence of gross negligence, fraud, or bad faith
the tax rate set by the State to provide an accredited under the Grizzle Trust, which gave its trustee broad
education. But Justice Enoch argued that the school authority to manage the trust, including the authority to
districts should not be allowed to raise a claim that the sell assets and reinvest them. The Grizzle Trust also
school finance system constitutes an unconstitutional recognized that such transactions may produce tax
state ad valorem property tax by asserting the need to tax consequences and result in fees being charged to the
at maximum rates to provide a general diffusion of trust.
knowledge.
In dissent, Justice Smith argued that the Court B. Claim by Contractor on Subcontractor’s
lacked subject matter jurisdiction to decide the case and Behalf/Privity
that the Court’s holding that school districts have a legal 1. Interstate Contracting Corp. v. City of Dallas,
obligation to comply with the general diffusion of certified question accepted, 46 Tex. Sup. Ct. J.
knowledge standard contained in article VII, section 1 of 486 (March 6, 2003) [03-0152].
the Texas Constitution transforms a putative taxpayer In this certified question from the United States
suit brought under article VIII, section 1-e into an article Court of Appeals for the Fifth Circuit, the Court must
VII, section 1 “adequacy” challenge. determine whether under Texas law a contractor can
assert a claim against an owner on a subcontractor’s
XI. CONTRACTS behalf when there is no privity of contract between the
A. Breach/Exculpatory Clauses/Self Dealing subcontractor and the owner (called a “pass through”
1. Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d claim). Interstate (the general contractor) filed suit
240 (Tex. December 31, 2002) [01-0211]. against the City of Dallas (the owner) on Mine Services’
The principal issues are: (1) whether, as the result (the subcontractor) behalf, asserting claims for breach of
of a bank exchange, the banks can be held liable when a contract, quantum meruit, breach of implied warranty,
trust in one bank allegedly lost money because of and fraudulent inducement. Over the City’s objection,
asserted self-dealing when investments were sold the federal district court permitted Interstate to bring
pursuant to federal law to establish an investment these claims. After an eleven-day trial, the jury found
account in one of the newly acquired banks; and (2) that the City breached its contract with Interstate and its
whether a settlement offer established an absolute implied warranty to provide accurate and suitable plans
defense to a deceptive trade practices claim. Grizzle and specifications pertaining to the subsoil conditions at
brought a class action in part for breach of contract and the excavation site. On appeal to the Fifth Circuit, the
breach of fiduciary duty, as well as deceptive trade City argued, among other things, that Interstate lacked
practices, against Texas Commerce Bank and Frost s tanding to sue on Mine Services’ behalf and that Mine
Bank. These claims arose when Texas Commerce Services could not sue on its own because it was not in
traded a Corpus Christi bank to Frost in exchange for a privity with the City. The cause was argued before the
bank in Dallas. Grizzle asserted that her son’s trust lost Supreme Court on April 23, 2003.
value in the Dallas bank in part because proceeds from
the former account were not reinvested for forty-two C. Consideration
days and because the son’s trust was charged improper 1. 1464-Eight Ltd. v. Joppich, 96 S.W.3d 614 (Tex.
fees and expenses attributed to liquidating the App.–Houston [1st Dist.] 2002), pet. for review
investments in the former account. The trial court granted, 47 Tex. Sup. Ct. J. 127 (December 12,
granted summary judgment to the banks, and the court of 2003) [03-0109].
appeals reversed. This case concerns: (1) whether the failure to pay
The Supreme Court reversed and rendered a recited $10 consideration on an option contract
judgment in favor of the banks, holding that section constitutes lack of consideration; and (2) whether the
113.059 of the Trust Code applies to trusts created under underlying sale of property was sufficient consideration
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for the option contract. Millis and Joppich entered into an to continue operating a hospital for the benefit of doctors
earnest money contract whereby Joppich agreed to who leased offices in the same building so they could be
purchase a plot of land located in a subdivision developed close to the hospital even though there was no express
by Millis. The sales contract included a clause granting provision for continuous operation in the parties’
Millis the option to repurchase the property if Joppich did agreements. In 1995, Universal Health Services, Inc.
not construct a residence on the property within eighteen (“Universal”) invited Renaissance Women’s Group and
months of the closing date. The option contract, although other physicians (“Physicians”) to participate in the
included in the sales contract, was not part of the deed of “Renaissance concept,” a new innovation in women’s
conveyance and was signed the day after conveyance. health care. The concept involved creating the
The option contract recited, “In consideration of the sum Renaissance Women’s Health Center of Austin, L.P., a
of Ten and No/100 ($10.00) Dollars (“Option Fee”) paid two-story facility consisting of a women’s hospital on the
in cash by Developer, the receipt and sufficiency of first floor and obstetrician/gynecology offices on the
which is hereby acknowledged and confessed, Purchaser second floor. According to the joint business plan,
hereby grants to Developer the exclusive right and option Universal would develop the facility and manage the
to purchase that certain tract of land . . . as described in first-floor hospital, and would lease the second-floor
exhibit “A” attached hereto and made a part of this offices to the Physicians. The lease agreement provided
Option for all purposes (“Property”). This Option may that Universal would lease the offic e space to the
be exercised at any time from and after January 21, Physicians for a ten-year term with the option to renew
1999.” Although the option contract recited a $10 for an additional five years.
consideration, Joppich denied that the $10 was ever paid, Although initial losses were expected, the hospital
and Millis could not produce a returned check or other suffered financially. In contrast, the Physicians’
documentation that the amount was paid. practices thrived, earning as much as the hospital lost.
After eighteen months had passed, Joppich still had Because the hospital was struggling financially, Universal
not constructed a residence. Millis then mailed Joppich decided to close the hospital after just two years. When
a “Notice of Intent to Exercise the Option.” The notice Universal informed the Physicians of its decision to close,
provided the amount to be paid, and a date, time, and the Physicians sued Universal for breach of contract and
location for closing. Joppich refused to re-convey the fraud, alleging that under the parties’ written agreements,
property to Millis. Joppich filed a lawsuit before the Universal was obligated to run the hospital for the entire
closing date seeking a declaratory judgment that the term of the lease. The jury returned a verdict in favor of
option contract was unenforceable. Millis then the Physicians, finding that Universal agreed to operate
counterclaimed for specific performanc e of the option the women’s hospital for the entire lease term and
contract. Millis moved for summary judgment, arguing awarding the Physicians actual damages of $5.6 million
that the option contract was enforceable despite the on their breach of contract claims, which included
failure to remit the $10. The trial court granted Millis’s $4 million in lost profits. The court of appeals affirmed,
motion. holding that, under an ambiguous contract theory, the
The court of appeals reversed, holding that failure to evidence was legally sufficient to support the trial court’s
pay the recited consideration constituted lack of judgment.
consideration. The court of appeals further held that the T he Supreme Court held that language from the
property in the underlying sales contract could not be lease and subsequent letter agreements was
used as consideration for the option contract because the unambiguous and neither expressly imposed an obligation
property was consideration for the earnest money to operate the hospital for the entire lease term nor could
contract that, under the merger doctrine, was superseded be reasonably read to do so. The Court said that a letter
by the option contract executed at closing. agreement containing statements that the landlord and
The Supreme Court granted the petition for review physicians were bound throughout the lease term did not
and will hear argument on January 28, 2004. impose an obligation to operate the hospital for the entire
lease term. Likewise, other language describing the
D. Lease/Ambiguity/Implied Obligation concept of doctors’ offices on one floor and a hospital on
1. Universal Health Servs., Inc. v. Renaissance the other did not constitute a binding obligation. And
Women’s Ctr. of Austin, L.P., S.W.3d , 47 Tex. express contractual language requiring the landlord to
Sup. Ct. J. 20 (September 30, 2003) [02-0193]. acquire and maintain permits and insurance-provider
In this breach of contract and fraud case, the agreements for a hospital during the lease term was also
Supreme Court decided whether a landlord was obligated
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not an obligation to operate the hospital for the entire assumed, contrary to longstanding precedent, that the jury
term of the doctors’ lease. failed to follow the trial court’s instructions. According
to Justice O’Neill, the Court’s decision will encourage
XII. DAMAGES granulated and confusing jury charges, the very problem
A. Broad-Form Submissions broad-form submission was designed to prevent. Justice
1. Harris County v. Smith, 96 S.W.3d 230 (Tex. O’Neill argued that a distinction between a broad-form
December 19, 2002) [01-0531]. submission unsupported by the substantive law, as
The issue is whether the presumptive harm rule of presented in Casteel, and one that presents an element
Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378 or theory lacking evidentiary support, as in this case, has
(Tex. 2000), applies to errors in broad-form damages been recognized by the U.S. Supreme Court, legal
submissions. Deputy Sheriff Spurgeon and the Smiths commentators, and Texas civil procedure rules.
were in a car crash in 1994, causing injuries to the
Smiths. The Smiths sued the County, and a jury found B. Expert Calculations/Reliability/Gas Well
that Spurgeon’s negligence caused the Smiths’ injuries. 1. Kerr-McGee Corp. v. Helton, 2002 WL 110433
The County did not challenge the negligence finding but (Tex. App.–Amarillo 2002), pet. for review
did object to the inclusion of certain damage elements in granted, 46 Tex. Sup. Ct. J. 49 (October 24, 2002)
the broad-form submissions to the jury. The jury was [02-0356].
asked to consider physical pain and mental anguish, loss This case involves whether a damages expert’s
of earning capacity, physical impairment, and medical calculations were reliable for a hypothetical gas well in a
care in deciding the amount of Mr. Smith’s damages. royalty owner’s gas drainage lawsuit. The expert
The County objected to including lost earning capacity, as calculated more than $2.4 million in royalties if Kerr-
there was no evidence of Mr. Smith’s income before or McGee had drilled a third offset well after two such
after the accident. The jury awarded Mr. Smith $90,000 wells failed to produce in paying quantities. The trial
in damages. The jury was similarly asked to consider court rendered judgment in Helton’s favor and assessed
physical pain and mental anguish, physical impairment, damages totaling $1,432,618.11. The court of appeals
and medical care in deciding the amount of Ms. Smith’s affirmed. The Supreme Court granted Kerr-McGee’s
damages. The County objected to including physical petition for review and heard argument on January 22,
impairment, as there was no evidence that her injury 2003.
constituted a separate and substantial or extremely
disabling loss beyond pain and suffering. The jury C. Loss of Consortium by Parents/Non-Deadly
awarded Ms. Smith $3,100. The court of appeals agreed Injury
with the County that the trial court erred by including in 1. Roberts v. Williamson [01-0766], consolidated with
its broad-form damages submission the elements of loss Williamson v. Roberts [01-0765], 111 S.W.3d 113
of earning capacity for Mr. Smith and physical (Tex. July 3, 2003).
impairment for Ms. Smith. But the court of appeals held The principal issues in this medical malpractice case
that these errors were harmless because the jury could are whether parents can recover damages for their own
have awarded damages for the Smiths’ medical costs loss of consortium with a child who has suffered a
and physical pain and mental anguish. It thus affirmed nonfatal injury and whether settlement credits must be
the trial court’s judgment. deducted from the jury’s damages award before a
The Supreme Court held that the reasoning in nonsettling defendant’s proportionate liability is
Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378 calculated. When the Williamsons’ daughter was born,
(Tex. 2000), applies equally to broad-form damage she went into distress. During her treatment, the parents
questions. Casteel held that commingling valid and claimed, the proper medicine was not used and the
invalid theories on liability could be harmful error when ventilator to help the child breathe did not work for
the basis for the jury’s finding could not be determined several minutes. The child suffered brain damage,
for appellate review. resulting in, among other things, seizures, a weak left
Justice O’Neill dissented, arguing Harris County did side, walking problems that require her to use braces and
not contend the evidence was legally insufficient to developmental problems. The Williamsons sued the
support the jury’s award. Nevertheless, because one hospital and several doctors, including Dr. Roberts. The
unsupported damage element was included in each hospital and two doctors settled their cases before trial.
plaintiff’s broad-form jury charge, the Court presumed At trial, a jury decided one doctor was not responsible
reversible harm. To do so, Justice O’Neill said, the Court and found Dr. Roberts’s liability amounted to 15 percent.
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The trial court ordered Dr. Roberts to pay $451,500 out options Miga had been promised when he helped develop
of the jury’s total award of just over $3 million. The Jensen’s long-distance telephone enterprises. The jury
court of appeals affirmed. determined the stock-option agreement had been
The Supreme Court held that parents cannot breached and awarded slightly more than $1 million in
recover for loss of consortium for a child who suffered contract damages and $17.7 million in lost profits on the
a non-fatal injury. In so holding, the Court distinguished stock options (apparently based on the stock price at the
Reagan v. Vaughn, 804 S.W.2d 463, 468 (Tex. 1990), in time of trial). Jurors also awarded $17.7 million on
which the Court had previously held that a child is entitled Miga’s fraud claim and $43 million in punitive damages.
to seek damages for loss of consortium when a parent The trial court’s judgment struck the fraud claim and
suffers a serious, permanent and disabling injury, because punitive damages awards. The court of appeals
the child’s role in the parent-child relationship, unlike the affirmed.
parent’s role, is vulnerable and dependent and profound The Supreme Court held that the proper measure of
harm might befall a child who has been deprived of a damages was the value of the stock on the date the stock
parent’s love, care, companionship and guidance. The option agreement was breached, minus the exercise
Court also noted that several other states–including the price. Although the award was labeled lost profits, the
first two that recognized a child’s consortium rights–have jury awarded Miga the 1997 market gain in the stock
held that the parent-child relationship is not reciprocal like Jensen refused to sell him in 1994. But, the Court said,
husband and wife and that the child needs special the rule in Texas has long been that contract damages
protection. Because the parent has a less dependent role are measured at the time of breach and not by the
than that of the child in the relationship, extending bargained-for goods’ market gain as of the time of trial.
consortium rights here could logically lead to the As for Jensen’s payment toward the judgment voiding his
recognition of such rights in other nondependent relatives right to appeal, the Court said the Texas rule is not, and
or even in close friends, given appropriate facts. Texas never has been, that any payment toward satisfying a
and no other state have gone so far. The Court also held judgment, including a voluntary one, moots the
that the trial court did not err in applying the settlement c ontroversy. Whether a party wishes to avoid the
credits or calculating Dr. Roberts’s proportionate liability. accrual of post-judgment interest, particularly on a multi-
In dissent, Justice Jefferson, joined by Justices million dollar judgment, is a question that party should be
O’Neill and Schneider, said that the Court’s holding that able to decide without fear of a Hobson’s choice–that is,
parents may not recover for loss of filial consortium is that the party might presumptively waive its appellate
contrary to the Court’s longstanding precedent, counter prospects. Payment on a judgment will not moot an
to the majority of jurisdictions that have considered the appeal of that judgment if the judgment debtor clearly
issue, and unduly tolerant of the anomaly the Court’s expresses an intent to exercise his right of appeal, and
decision creates in the law. Moreover, Justice Jefferson appellate relief is not futile.
said, the theme underlying the Court’s decision–that a Justice O’Neill dissented, stating that the Court’s
parent’s loss of consortium claim must be rejected time-of-breach damage measure was founded on an
because adults require less protection than economic fiction that woefully deprived Miga of the
children–makes little sense in light of the Court’s benefit of his bargain, and it would encourage promisors
repeated declarations that parents may recover to breach stock-option agreements in a rising market,
consortium damages for the death of their children, and allowing them to cap their liability while reaping the very
its holding in Reagan that even adult children are entitled profit potential that was promised in exchange for the
to consortium damages for the death of, or serious injury promisee’s performance. According to Justice O’Neill,
to, their parents. the Court should have applied a damage measure that
minimizes the potential to over- or under-compensate the
D. Measurement/Breach of Oral Stock Option injured party and more closely approximates the value of
Contract the benefit lost; that is, the stock’s highest intermediate
1. Miga v. Jensen, 96 S.W.3d 207 (Tex. October 31, value between the date of breach and a reasonable
2002) [00-0932]. period in which the injured party could have entered the
In this case, the Supreme Court determined (1) how market and replaced the stock.
damages should be calculated for an option-contract Justice Schneider also dissented. According to
breach and (2) whether the defendant lost his right to Justice Schneider, the Court wrongly concluded that
appeal by paying the judgment ostensibly to avoid interest Jensen’s payment did not moot the appeal. By accepting
charges. Miga claimed Jensen refused to tender stock Jensen’s argument as a legitimate basis for holding the
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appeal was not moot–regardless of whether the federal against a bank under section 3.420 of the Uniform
or Texas approach applies–the Court’s opinion, Justice Commercial Code. An employee of Information Support
Schneider said, allows judgment debtors facing significant Concepts (“ISC”) stole over $300,000 in checks made
damages awards to pay the judgment, avoid post- payable to ISC and deposited them into her personal
judgment interest, and still appeal simply because they account at Southwest Bank. Although none of the stolen
have a “leg up” over parties with smaller pocket books checks bore ISC’s endorsement and ISC did not have an
who cannot afford to play the interest game in the account with the Bank, the Bank accepted her deposits
financial market. and obtained payment on the checks. ISC sued the Bank
under the Uniform Commercial Code, T EX. BUSINESS &
E. Measurement/Permanent Injury to Land COMMERCE CODE § 3.420, for conversion, seeking
1. Coastal Transp., Inc. v. Crown Cent. Petroleum actual and exemplary damages. The Bank raised several
Corp., 38 S.W.3d 180 (Tex. App.–Houston [14th affirmative defenses, including contributory negligence,
Dist.] 2001), pet. for review granted, 45 Tex. Sup. assumption of risk, and failure to mitigate damages, and
Ct. J. 1145 (August 29, 2002) [01-0301]. sought to join the employee, her husband, and the chief
The issues in this case include: (1) whether an financial officer of ISC as responsible third parties under
objection to the introduction of expert testimony is the proportionate responsibility statute. The trial court
necessary to challenge the legal sufficiency of that granted partial summary judgment in favor of ISC on the
testimony in a directed verdict; (2) what evidence is Bank’s affirmative defenses and denied the Bank’s
necessary to support a jury finding of gross negligence; motion to join the employee, her husband, and the CFO
(3) what constitutes permanent injury to land; and (4) under the proportionate responsibility statute. The trial
what the proper measure of damages for permanent court also granted summary judgment in favor of ISC on
injury to land is. A gasoline truck owned by Coastal liability for conversion and actual damages claims but
Transport overflowed while being filled at a bulk loading refused to allow ISC to recover exemplary damages
facility owned by Crown Central. A fire resulted, from the Bank. The court of appeals affirmed the trial
destroying Crown Central’s facility. Crown Central sued court’s judgment. The Supreme Court granted the
Coastal Transport and another company for negligence Bank’s petition for review and heard argument on
and gross negligence. The trial court rendered judgment November 5, 2003.
against Coastal Transport based on the jury’s findings,
but rendered a directed verdict against Crown Central as G. Punitive Damage s/Applicability of Statutory
to exemplary damages. Based on the jury’s finding that Cap
the loading facility’s damage was “temporary,” the trial 1. Diamond Shamrock Ref. Co. v. Hall, 82 S.W.3d 5
court determined that Crown Central’s prior settlement (Tex. App.–San Antonio 2001), pet. for review
with another party was for a greater amount than its granted, 46 Tex. Sup. Ct. J. 584 (April 17, 2003)
damages. And because Coastal Transport made a prior [02-0566].
written settlement credit election, the trial court rendered This case concerns the legal sufficiency of evidence
a take-nothing judgment against Crown Central. The supporting a jury finding of gross negligence, the
court of appeals affirmed the finding of “temporary” applicability of the punitive damage cap provisions of
damages, but held that the directed verdict concerning Chapter 41 of the Texas Civil Practices and Remedies
Coastal Transport’s alleged gross negligence was Code, and the propriety of the exclusion of evidence of
improper and remanded the matter for further actual damages in an employee-death case under the
proceedings. The Supreme Court granted Crown Texas Workers’ Compensation Act.
Central’s and Coastal Transport’s petitions for review Charles Hall, a Diamond Shamrock Refining Co.
and heard argument on December 4, 2002. employee, died from workplace injuries caused by an
explosion at the oil refinery’s compressor building.
F. Proportionate Responsibility Diamond Shamrock used a refinery design that presented
Statute/Applicability a risk that liquids might enter the compressor, despite its
1. Southwest Bank v. Info. Support Concepts, Inc., 85 knowledge that the entrance of even a small amount of
S.W.3d 462 (Tex. App.–Fort Worth 2002), pet. for liquid would likely produce an explosion. Donna Hall,
review granted, 46 Tex. Sup. Ct. J. 1058 (August Charles Hall’s surviving spouse, sued Diamond
28, 2003) [02-0946]. Shamrock under the Texas Worker’s Compensation Act
The issue in this case is whether the proportionate and Article 16, Section 26 of the Texas Constitution to
responsibility statute applies to an action for conversion recover punitive damages based on a gross negligence
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claim. The trial court granted Diamond Shamrock’s XIII. DECEPTIVE TRADE PRACTICES ACT
motion to prohibit any evidence of Hall’s actual damages. A. Agent Liability/Scope of Employment/ Fraud
The jury found in favor of Hall and awarded her 1. Miller v. Keyser, 90 S.W.3d 712 (Tex. November 5,
$42.5 million in punitive damages based on her gross 2002) [01-0541].
negligence claim. The trial court granted Diamond The issue is whether a home builder’s sales agent is
Shamrock’s motion to limit the punitive damage award to exempt under the Deceptive Trade Practices Act
$200,000 pursuant to the statutory cap provided in section (DTPA) from liability for alleged misrepresentations
41.008 of the Texas Civil Practices and Remedies Code. about lot sizes he sold in the course of his employment.
The court of appeals found the evidence legally and The Millers and others who paid a premium for deeper
factually sufficient to support the punitive damage award lots for larger backyards in a subdivision claimed Keyser
based on the gross negligence claim and recognized the had misrepresented the lot sizes. After fences were
applicability of section 41.008 to limit Hall’s punitive built, a drainage district claimed the fences intruded on its
damage award. But the court reversed and remanded easement and had to be moved at the owners’ expense.
for a new trial, holding that the trial court erred in The jury found that Keyser was liable for deceptive trade
excluding evidence of Hall’s actual damages, evidence practices but that he did not commit fraud and acted
essential to determine whether Hall was eligible for a solely within the scope of his employment for the
larger damage award under section 41.008’s statutory homebuilder. The court of appeals reversed.
cap formula. The Supreme Court held that an agent may be
The Supreme Court granted Diamond Shamrock’s personally liable for misrepresentations he makes when
petition for review and heard argument on October 1, acting within the scope of his employment because the
2003. DTPA allows a consumer to bring suit against “any
person.” The DTPA broadly defines “person” as “an
H. Punitive Damages/Legal Sufficiency individual, partnership, corporation, association, or other
1. Southwestern Bell Tel. Co. v. Garza, 58 S.W.3d 214 group, however organized” and, according to the
(Tex. App.–Corpus Christi 2001), pet. for review Legislature, is to be construed liberally to promote its
granted, 46 Tex. Sup. Ct. J. 779 (June 12, 2003) central purpose to protect consumers. The Court said
[01-1142] that its analysis on agent liability was not affected by the
The issues in this workers’ compensation retaliation agent’s or the employee’s position in the company or
case are (1) whether legally sufficient evidence whether the corporate agents were officers of the
supported the award of punitive damages; (2) whether corporation. Rather, agents are personally liable for their
sufficient evidence existed to prove causation; (3) own torts, and the Court held that there was no basis for
whether Southwestern Bell waived its complaint that the concluding differently based on DTPA claims.
liability question was defective; and (4) whether the
liability question was in fact defective. David Garza sued B. Assignability of Claims/Consumer
Southwestern Bell Telephone Company for workers’ 1. PPG Indus., Inc. v. JMB/Houston Ctr. Partners Ltd.
c ompensation retaliation. The trial court rendered P’ship, 41 S.W.3d 270 (Tex. App.–Houston [14th
judgment for Garza, awarding $1,034,108 in actual Dist.] 2001), pet. for review granted, 45 Tex. Sup.
damages, $1,000,000 in punitive damages, prejudgment Ct. J. 1107 (August 22, 2002) [01-0346].
interest, and costs. The court of appeals held that The issues in this case are: (1) whether a
Southwestern Bell failed to timely and specifically object Deceptive Trade Practices Act claim is assignable; (2)
to the liability question and that, regardless of the waiver, if so, whether the assignee has to qualify as a
the liability question was not improper. Furthermore, the “consumer” in its own right; (3) whether the amendatory
court of appeals held that the trial court did not err in language of the DTPA that “[t]his Act applies to all
admitting evidence over Southwestern Bell’s objections actions or claims commenced on or after the effective
and that legally and factually sufficient evidence date of this Act” refers to the entire act, or only to those
supported the finding that Southwestern Bell violated the changes made by the amendment; (4) whether, as a
anti-retaliation statute and the awards for mental anguish matter of law, JMB’s lawsuit was barred by limitations;
and punitive damages. The court of appeals also refused (5) whether the trial court erred in finding the existence
to order remittitur of the awards for mental anguish and of a 20-year warranty as a matter of law; and (6)
punitive damages. whether the award of a $300,000 “bonus” to the
T he Supreme Court granted Southwestern Bell’s prevailing party’s lawyer was reasonable and necessary
petition for review heard argument on October 15, 2003. or an abuse of discretion by the trial court.
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In 1976 and 1977, Houston Center Corporation 2702 of the ECPA exists on the backup tapes. The trial
purchased and had installed in their new office building court therefore did not abuse its discretion in ordering CI
over 12,000 PPG Industries products known as Host to produce the tapes. The Court further concluded
“Twindows.” Twindows were discontinued in the latter that because the parties acknowledged that the tapes
part of 1977 when the production process was found to contained both privileged and nonprivileged information,
be flawed, but PPG continued to produce them for and that some of the information might be considered
replacement purposes. Between 1983 and 1985, PPG confidential by CI Host’s customers, the trial court would
replaced approximately 3,000 units when Houston Center have to take any third-party privacy concerns into
complained that some of the seals on the Twindows were account in any further proceedings in the case.
failing. In 1989, JMB, a business with assets of over $25
million, purchased Houston’s building. A provision in the B. Possession, Custody or Control
Bill of Sale conveyed all “assignable warranties, 1. In re Kuntz, S.W.3d , Tex. Sup. Ct. J.
guarantees, representations or covenants” to JMB. (December 19, 2003) [02-0375].
After the sale, many of the Twindows failed, and in 1994, A principal issue in this mandamus petition arising
JMB sued PPG, alleging breach of warranty under the from a post-divorce enforcement action is whether the
five and twenty year warranties and DTPA violations. trial court erred by finding that the ex-husband, in his
The jury found for JMB, and the trial court rendered individual capacity, had possession, custody or control of
judgment for JMB, awarding it treble damages under the documents prepared by his company for a client. In the
1973 version of the DTPA, for a total of over $14 million. enforcement action, the wife sought drilling
The trial court also awarded over $1.7 million in recommendations with potential royalty benefits to the
attorney’s fees and $412,400 in appellate attorney’s fees. husband’s firm. Both the husband, other principals in his
The court of appeals affirmed. The Supreme Court firm and his firm’s exclusive client resisted the discovery,
granted PPG’s petition for review and heard argument on claiming that the husband did not have possession,
November 20, 2002. custody or control of the documents and, alternatively,
that they were trade secrets unnecessary to a fair
XIV. DISCOVERY adjudication of the wife’s claims. The trial court ordered
A. Federal Privacy Statutes the husband to produce copies of the drilling-
1. In re CI Host, Inc., 92 S.W.3d 514 (Tex. November recommendation letters themselves, subject to a
21, 2002) [00-1150]. confidentiality order, covering the period of the marriage.
T his case involves the relationship between the The court of appeals denied the mandamus petition.
federal Electronic Communications Privacy Act and The Supreme Court held that the husband’s mere
Texas’s discovery rules. CI Host is a web-hosting access to the documents did not constitute “possession,
company. Several CI Host customers sued CI Host custody or control” as defined by the Texas Rules of
alleging it violated several guarantees. Because some of Civil Procedure, which requires physical possession of an
the Plaintiffs’ complaints involved CI Host’s alleged item or right to possession equal or superior to the person
failure to backup files as guaranteed, the Plaintiffs who has physical possession of the item. Undisputed
requested copies of CI Host’s backup tapes from March evidence showed the husband’s employer had actual
1, 2000. The trial court ordered CI Host to produce the physical possession of the relevant documents, that the
tapes. CI Host objected, claiming that while some documents were owned by the client company, and that
information on the tapes is discoverable, other the client claimed they were privileged trade secrets.
information is protected from disclosure by the Electronic In a concurring opinion, Justice Hecht said that he
Communications Privacy Act. The court of appeals would also have found that the wife was not entitled to
denied CI Host’s petition for writ of mandamus. The production of the documents because they were
Supreme Court granted CI Host’s petition for writ of privileged trade secrets under Texas Rule of Evidence
mandamus to decide whether the trial court abused its 507 and she did not establish that they are essential to a
discretion by ordering CI Host to produce the tapes. fair adjudication of her claims.
The Supreme Court ultimately denied mandamus Justice Wainwright also concurred, say that the
relief, ruling that CI Host failed to support its objection to Court implied that the documents should have been
the requested discovery of the tapes as required by obtained, if at all, from the client company. But because
Texas Rule of Civil Procedure 193.4 because CI Host the client company had participated so substantially in the
failed to produce evidence in the trial court that only the discovery hearing without intervening, Justice Wainwright
type of information protected from disclosure by section said the client would have had difficulty attempting to
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obtain a different ruling in the trial court if the Court’s discovery abuse, that the jury in a medical-negligence
decision had been adverse to the client’s position. case take certain statements as true. The hospital
withheld certain statements by its patient-care staff
C. Relevancy and Overbreadth based on the attorney work-product doctrine. Then, 31
1. In re CSX Corp., S.W.3d , 47 Tex. Sup. Ct. J. days before trial, the hospital produced the statements,
24 (October 3, 2003) [03-0381]. stating that recent case law persuaded it that the
This case involves a discovery dispute in a benzene- statements were discoverable. As sanctions, the trial
exposure lawsuit. The issue presented was whether court ordered that the jury take as established that the
certain interrogatories were too broad and irrelevant. patient’s four calls for assistance were ignored and that
Ward, the plaintiff who alleged his blood disease resulted he was in the restraint without a physician’s order. The
from benzene exposure, served interrogatories on three court of appeals affirmed.
subsidiaries of a company that acquired a company that The Supreme Court held that the sanctions were
employed him. Ward sought records extending years excessive and the error was prejudicial. The Court
beyond when he was employed by National Marine applied the two-prong analysis of TransAmerican
Services (once in 1958 and again from 1972 to 1977). Natural Gas Corp. v. Powell, 811 S.W.2d 913 (Tex.
The interrogatories sought the names of industrial 1991), to conclude that sanctions that inhibit presentation
hygiene and safety employees and doctors from the early of a case should be reserved for flagrant bad faith or
1970s to the present. counsel’s callous disregard for discovery responsibilities
The Supreme Court held that the interrogatories and concluded that late production of witness statements
were overly broad and lacked reasonable limitations on did not justify the severe sanctions ordered in this case.
time and subject matter. The Court said that a request to The error was harmful, the Court said, because by
identify all safety employees who worked for the instructing the jury to presume that nurses ignored the
companies over a 30-year period, even though the calls, it essentially proved the hospital breached its duty
plaintiff didn’t work for the parent company for that long, of care and effectively precluded the hospital from
qualified as the kind of “fishing expedition” the Court has offering testimony by two nurses that would have
repeatedly disallowed. c ontradicted the statement that nurses ignored the
patient’s calls.
D. Sanctions/Abuse of Discretion
1. Cire v. Cummings, 74 S.W.3d 920 (Tex. E. Trade Secrets
App.–Amarillo 2002), pet. for review granted, 46 1. In re Bridgestone/Firestone, Inc., 106 S.W.3d 730
Tex. Sup. Ct. J. 584 (April 17, 2003) [02-0670]. (Tex. May 22, 2003) [01-1165].
This case involves death penalty sanctions imposed The issue in this products-liability case is whether
on the plaintiff for discovery abuse. The court of appeals the trial court abused its discretion by ordering disclosure
held that the trial court abused its discretion by striking of Firestone’s trade-secret tire-manufacturing formula on
the plaintiff’s pleadings without indicating that it had first the grounds that it was necessary to the litigation. The
considered lesser sanctions and without explaining why plaintiffs in this case, alleging tire-tread separation
such lesser sanctions would not suffice. The issues defects, sought Firestone’s trade-secret “skim stock
raised by the parties are: (1) whether the imposition of recipe” to determine composition of the rubber coating
lesser sanctions is a prerequisite to the imposition of that holds Firestone’s tires’ steel belts together. They
death penalty sanctions for discovery abuse; (2) whether alleged insufficient adhesion caused tire-tread separations
the trial court abused its discretion in imposing death in Ford Explorer automobile accidents and argued that
penalty sanctions; and (3) whether a trial court must Firestone’s and Ford Motor Company’s own
conduct an oral hearing in reviewing a motion to compel investigations concluded that skim-stock deficiencies
or a motion for sanctions. The Supreme Court heard oral could be partly to blame for the accidents. Firestone
argument in this case on October 1, 2003. argued that the plaintiffs had not demonstrated the need
for the formula under the “necessity” standard set out in
2. Spohn Hosp. v. Mayer, 104 S.W.3d 878 (Tex. April In re Continental General Tire, 979 S.W.2d 609 (Tex.
24, 2003) [02-0443]. 1998), for discovery of trade-secret information because
This case involved the death of a patient in a (1) in the high-heat manufacturing process the materials
restraint vest whose calls to nurses were allegedly in the formula change composition; (2) the plaintiffs could
ignored. The issue on appeal was whether the trial court test their defect theories on finished tires; and (3) the
abused its discretion by ordering, as a sanction for plaintiffs’ experts’ testimony regarding need was only
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that the “best way” to determine what’s supposed to be production of minerals on property in which they held
in the tires is to know the formula. The trial court royalty interests. When Bass refused to produce seismic
ordered disclosure under a protective order of the data from a survey Exxon conducted of the subject
formula used in Firestone’s Decatur, Ill., plant. The court property and an adjacent tract Bass owned, the trial court
of appeals affirmed. granted a motion to compel disclosure of the information
The Supreme Court conditionally granted mandamus under a protective order. Bass sought mandamus relief
relief, holding that the evidence of unfairness in this case from the court of appeals, but the court of appeals denied
was essentially no different from the evidence in the petition.
Continental General Tire. The Court said the test in The Supreme Court held that geological seismic data
Continental General Tire cannot be satisfied merely by are trade secrets and that the nonparticipating royalty
general assertions of unfairness. Plaintiffs had conceded interest owners failed to establish the existence of a
that tests on a finished tire are more probative of a defect claim against the mineral estate owner justifying
than an analysis of the skim-stock formula would be and discovery of the trade secret data. The Court applied the
acknowledge that they had no other skim-stock formulas Restatement of Torts’ six-factor test for trade secrets
to compare Firestone’s skim-stock formula to. Neither (now incorporated into the Restatement [Third] of Unfair
side could point to a single case in which a court had Competition) and concluded that Bass met his burden to
ordered the formula disclosed. In short, the plaintiffs had show that geological seismic data are trade secrets.
not shown how knowledge of the formula was linked to Therefore, under the Court’s holding in In re
their allegations, let alone how it was necessary to a fair Continental Tire, 979 S.W.2d 609 (Tex. 1998), the
adjudication of their claims. plaintiffs had to show that discovery of that information
In concurrence, Justice O’Neill argued that was necessary for a fair adjudication of their claims.
determining what evidence is necessary for a fair Because the record did not establish the existence o f a
adjudication should be more than ad hoc. According to duty to develop or that Bass breached a fiduciary duty,
Justice O’Neill, the following general principles could be the royalty owners did not make the requisite showing of
distilled from decisions in other jurisdictions: (1) trade- necessity.
s ecret information is generally discoverable when not
allowing discovery would significantly impair a party’s XV. EMPLOYMENT LAW
ability to establish or rebut a material element of a claim A. Disability Discrimination/Evidence of Pretext
or defense; and (2) a party’s ability is significantly 1. Wal-Mart Stores, Inc. v. Canchola, S.W.3d , 46
impaired when the information is unavailable from any Tex. Sup. Ct. J. 1116 (September 4, 2003)
other source and no adequate alternative means of proof [02-0232].
exist. Justice O’Neill also said that discovery of trade The issue is whether evidence supporting a disability
secrets is necessary when the party seeking trade secret discrimination verdict was legally sufficient. In this case,
information could not knowledgeably cross-examine Canchola, a department manager for Wal-Mart,
opposing witnesses without it, or when the party’s complained that his firing for alleged sexual harassment
experts would be unable to formulate opinions supported was a pretext for firing him because of a disabling heart
by an adequate factual foundation. On the other hand, condition. Canchola sued for disability discrimination and
information that is merely cumulative would not be for intentional infliction of emotional distress. A jury
necessary for a fair adjudication. found for Canchola, and the court of appeals affirmed the
judgment.
2. In re Bass, 113 S.W.3d 735 (Tex. July 3, 2003) The Supreme Court held there was no evidence to
[02-0071]. support the jury’s verdict. Canchola raised questions
This case involves a discovery dispute in which the about the adequacy and fairness of Wal-Mart’s
trial court ordered Bass to disclose seismic data that he investigation as evidence that the store was motivated to
contended was a trade secret. A brother and sister sued fire him because of his disability. But the Court said that
Bass, alleging, among other things, that (1) they held although that was some evidence assailing the quality of
“executive” and “bonus” mineral rights in South Texas the store’s investigation, it did not, by itself, prove that
ranch land Bass acquired from their sister; (2) Bass Canchola’s heart condition was a motivating factor in his
misappropriated confidential and valuable geophysical termination. The relevant inquiry, the Court explained, is
data and converted their executive mineral rights; and (3) not whether the complaints made against Canchola were
Bass breached duties he owed to them by preventing or a pretext, but what they were a pretext for. Canchola
discouraging reasonable exploration, development and offered no evidence to show that Wal-Mart was
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motivated to fire him because of his heart condition. His follow in collecting the urine sample caused the positive
allegations about Wal-Mart’s investigation, even if true, test result for marijuana use.
did not amount to extreme and outrageous conduct as a
matter of law. C. Preemption/Texas Commission on Human
Rights Act
B. Drug Testing/Termination of At-Will Employee 1. Hoffman-LaRoche, Inc. v. Zeltwanger, 69 S.W.3d
1. Mission Petroleum Carriers, Inc. v. Solomon, 106 634 (Tex. App.–Corpus Christi 2002), pet. for
S.W.3d 705 (Tex. May 15, 2003) [01-0292]. review granted, 46 Tex. Sup. Ct. J. 68 (October 31,
This case presents an issue of first impression in 2002) [02-0120].
Texas law: whether an employer owes a duty to an at- The principal issue is whether the Texas
will employee to exercise reasonable care in conducting Commission on Human Rights Act preempts a claim for
a mandatory drug test that led to his dismissal. Mission intentional infliction of emotional distress in a sexual
selected Solomon, one of its drivers, for a random drug harassment and retaliatory discharge lawsuit. Based on
test using one of its own employees to collect a urine favorable jury findings, the trial court awarded
sample. When the drug test showed evidence of Zeltwanger damages against Hoffman-LaRoche as
marijuana use, Mission fired Solomon and registered the follows: (1) sexual harassment–$347,036 for back pay,
test result in an industry-wide computer network the $500,000 in front pay, plus prejudgment interest; (2)
federal government required. Solomon later alleged intentional infliction of emotional distress–$1 million for
Mission did not follow testing protocol established by the mental anguish and $23,000 for past medical expenses,
federal Department of Transportation and offered a hair plus prejudgment interest on both. The trial court also
analysis to refute the alleged marijuana use. He sued awarded $50,000 for future medical expenses, plus
Mission in part for negligently handling his urine sample. $8,000 in exemplary damages. The trial court also
The jury awarded Solomon more than $900,000, including awarded Zeltwanger damages against Webber,
punitive damages. The court of appeals affirmed. Zeltwanger’s supervisor at Hoffman-LaRoche, for
The Supreme Court reversed and rendered intentional infliction of emotional distress as follows:
judgment, holding that a common-law duty should not be $30,000 for mental anguish, plus prejudgment interest,
imposed on employers collecting urine samples and $7,500 exemplary damages. The trial court also
themselves because federal Department of rendered a take nothing judgment against Zeltwanger on
Transportation regulations adequately govern how her claim against Hoffman-LaRoche for retaliatory
samples are collected and processed and allow discharge, and rendered a take nothing judgment as to all
employees to challenge false-positive test results. In claims brought by Hoffman-LaRoche and Webber. The
testing conducted under the federal Transportation court of appeals affirmed, rejecting Hoffman-LaRoche’s
protocols, employees can contest urine-collection arguments that it could not be held liable for intentional
procedures that violate federal regulations and request an infliction of emotional distress for Webber’s conduct.
independent medical review officer’s assessment of the The Supreme Court granted Hoffman-LaRoche’s petition
collection procedures. Companies that do not adhere to for review and heard argument on February 5, 2003.
collection procedures can be penalized. Solomon did not
use these protections. Instead he signed a specimen D. Retaliation/Evidence/Causation
chain-of-custody form and did not raise Mission’s alleged 1. Southwestern Bell Tel. Co. v. Garza, 58 S.W.3d 214
protocol violations. Because employees can protect (Tex. App.–Corpus Christi 2001), pet. for review
themselves from harm, the inc entive is less to create a granted, 46 Tex. Sup. Ct. J. 779 (June 12, 2003)
duty of ordinary care on employers collecting drug-test [01-1142]
specimens. The issues in this workers’ compensation retaliation
Justice Enoch concurred, arguing that the Court’s case are (1) whether legally sufficient evidence
discussion of the employment-at-will doctrine was supported the award of punitive damages; (2) whether
unnecessary. Justice Schneider, concurring separately, sufficient evidence existed to prove causation; (3)
stated that, although imposition of a common-law duty whether Southwestern Bell waived its complaint that the
would not disrupt the balance in policies underlying the liability question was defective; and (4) whether the
federal drug-test regulations, Solomon’s negligence claim liability question was in fact defective. David Garza sued
still failed because he did not produce any evidence that Southwestern Bell Telephone Company for workers’
the steps or procedures Mission Petroleum failed to compensation retaliation. The trial court rendered
judgment for Garza, awarding $1,034,108 in ac tual
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damages, $1,000,000 in punitive damages, prejudgment jury’s findings on causation, and entered a take-nothing
interest, and costs. The court of appeals held that judgment in Alexander’s favor. The court of appeals
Southwestern Bell failed to timely and specifically object reversed in part, holding that expert testimony was not
to the liability question and that, regardless of the waiver, necessary to prove causation in this case and that there
the liability question was not improper. Furthermore, the was legally and factually sufficient evidence of causation.
court of appeals held that the trial court did not err in The court of appeals also held that the trial court did not
admitting evidence over Southwestern Bell’s objections abuse its discretion in denying T&A’s motion for leave to
and that legally and factually sufficient evidence file the post-verdict trial amendment and remanded to the
supported the finding that Southwestern Bell violated the trial court to enter judgment awarding T&A damages in
anti-retaliation statute and the awards for mental anguish the amount of the underlying bankruptcy claim. The
and punitive damages. The court of appeals also refused court of appeals affirmed the trial court’s grant of
to order remittitur of the awards for mental anguish and summary judgment on the Partnership’s claims for
punitive damages. unauthorized sale of cattle, holding that the claim was
The Supreme Court granted Southwestern Bell’s barred by the statute of limitations. The Supreme Court
petition for review and heard argument on October 15, granted both parties’ petitions for review and heard
2003. argument on December 3, 2003.
XVI. EVIDENCE B. Outcry Testimony
A. E x p e r t Testimony/Causation/Legal 1. In re Z.L.B., 102 S.W.3d 120 (Tex. March 13,
Malpractice 2003) [01-1209].
1. Alexander v. Turtur & Assocs., Inc., 86 S.W.3d 646 In this child sexual-abuse case involving a juvenile
(Tex. App.–Houston [1st Dist.] 2001), pet. for offender, the Supreme Court considered who bears the
review granted, 46 Tex. Sup. Ct. J. 1204 burden to produce evidence of an earlier statement from
(September 25, 2003) [02-1009]. an “outcry” witness when the defendant claims the
The main issue in this case is whether expert prosecution’s proffered outcry witness was not the first
testimony is required to prove causation in a trial person to hear a qualifying outcry statement. The
malpractice case. Turtur & Associates, Inc. (T&A) prosecution had offered a day-care director’s testimony
sued Tom Alexander, individually, and his law firm, that the 5-year-old victim complained that his 12-year-old
Alexander & McEvily, for malpractice and DTPA brother had touched his “privates” and he wanted him to
violations related to Alexander’s representation of T&A stop. The defense maintained that the day-care director
in a dispute with McKellar Ranch in bankruptcy court. was not the appropriate out-cry witness because the
T&A alleged that Alexander’s and his firm’s negligence victim had previously made similar statements to his
resulted in an unfavorable outcome in the trial. The mother.
Turtur Family Partnership was later added as a plaintiff The Court held that once the prosecution lays the
and alleged that Alexander and his firm had also initial predicate, the burden shifts to the defendant to
conducted an unauthorized sale of the Partnership’s prove the child made an earlier statement to another
cattle. The sale had occurred in connection with person, and in this case, the defendant failed to introduce
Alexander & McEvily’s representation of the Partnership evidence of a sufficient earlier statement to the mother.
in a different case involving an ownership dispute with The Court noted that the Court of Criminal Appeals has
McKellar over the cattle. The trial court granted partial held in adult criminal cases that the outcry statement
summary judgment for Alexander on the Partnership’s must be one that “in some discernible manner describes
claims for unauthorized sale of cattle on statute of the alleged offense,” more than a general allusion of child
limitations grounds. During the trial on the remaining abuse.
claims, T&A presented expert testimony on Alexander’s
breach of the ordinary standard of care, but not C. Videotaped Statement/Unidentified Witness
specific ally on causation. The jury rendered a verdict 1. Volkswagen of Am., Inc. v. Ramirez, 79 S.W.3d
favorable to T&A on the remaining claims and awarded 113 (Tex. App.–Corpus Christi 2002), pet. for
damages far in excess of T&A’s underlying claim in the review granted, 46 Tex. Sup. Ct. J. 489 (March 6,
bankruptcy proceeding. The trial court denied T&A 2003) [02-0557].
leave to file a trial amendment to conform the pleadings The issues in this personal injury case arising from
with the damages awarded, held that no evidence an automobile accident are (1) whether an order granting
supported the jury’s damages award, disregarded the a new trial is reviewable on appeal after the second trial;
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(2) whether the trial court abused its discretion by the check was illegible and Wal-Mart did not take
admitting a TV news crew’s videotaped witness identification from the check writer. Rodriguez was
statement when the witness refused to identify himself on arrested, then released after showing he didn’t write the
the video and was not available for cross-examination; check. In his suit for false imprisonment, the trial court
(3) whether the Texas probation statute restores a granted summary judgment for Wal-Mart. The court of
convicted felon’s jury service eligibility; and (4) whether appeals reversed, holding that a person reporting a crime
the trial court abused its discretion by admitting the can be liable for false imprisonment if he or she
testimony of the plaintiff’s accident-reconstruction misrepresents or fails to disclose relevant facts.
expert. On November 26, 1996, Haley Sperling was T he Supreme Court, however, held that Wal-Mart
driving a 1996 Volkswagen Passat when she collided could not be held liable for false imprisonment because
with a Camaro and crossed the median into opposing no evidence existed that it knowingly provided the district
traffic. Ms. Sperling’s Passat collided head-on with a attorney with false information with the intent that
1995 Ford Mustang driven by Diana Ramirez Guerra and Rodriguez be arrested. Contrary to Rodriguez’s
occupied by her daughter, Jacquelyn Guerra. Ms. assertion, the Court said, most other states that have
Sperling and Diana Guerra died in the accident, and considered the issue have held that a third party must
Jacquelyn Guerra was seriously injured. The families intentionally provide false information to satisfy the false
sued Volkswagen of America, Inc., the driver of the imprisonment causation requirement. Although
Camaro, and others for money damages, alleging product Rodriguez advocated a rule predicating liability on
defects and negligence. The Sperling family’s claims negligent rather than willful conduct, the Court stated that
were severed from the Ramirez family’s claims. This false imprisonment is an intentional tort, requiring willful
case involves only the Ramirez family’s claims. detention by the defendant. Wal-Mart was entitled to
Two trials were held in this case. In the first trial, summary judgment because Rodriguez’s evidence
the jury returned a unanimous verdict in favor of showed only that Wal-Mart’s employee could not have
Volkswagen, but the trial court granted the Ramirez been certain that the driver’s license number printed on
family’s motion for a new trial “in the interest of justice” the returned check belonged to the check’s drawer and
without providing further explanation. After the second did not show that Wal-Mart knew the information it
trial, ten of the twelve jurors returned a verdict in favor provided was false.
of the family, awarding them $15.9 million in actual
damages. The court of appeals affirmed the trial court’s XVIII. FAMILY LAW
judgment. A. Appointed Counsel/Conflict of Interest
The Supreme Court granted Volkswagen’s petition 1. In re B.L.D., 113 S.W.3d 340 (Tex. July 3, 2003)
for review and heard oral argument on April 23, 2003. [01-0882].
The principal issues in this parental-rights
XVII. FALSE IMPRISONMENT termination case are (1) whether the trial court should
A. Failure to Disclose by Complainant have granted separate trials for parents based on their
1. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502 court-appointed counsel’s alleged conflict of interest and
(Tex. October 10, 2002) [01-0643]. (2) whether the parents preserved their complaint that
In this case, the Supreme Court considered whether jury questions that submitted multiple grounds for
Wal-Mart was liable for false imprisonment because it terminating their parental rights disjunctively and in
did not disclose to a district attorney that its check- “broad form” violated their due process rights. The
identification system could provide inaccurate parents’ appointed counsel first requested separate trials
information, resulting in the arrest of innocent people. before trial began, claiming a potential conflict of interest
The plaintiff in this case, Rodriguez, used his employer’s existed. He later renewed the request during trial,
check to buy his company supplies at a Wal-Mart store. claiming that an actual conflict had arisen based on the
The cashier, following store policy, took Rodriguez’s evidence adduced at trial. The trial court denied both
driver’s license number, which was entered into a requests, and ultimately terminated both parents’ rights to
computer along with the employer’s checking account their children based on the jury’s verdict. On appeal the
information. When another employee later used a parents complained that they were denied effective
company check at the same store that bounced, Wal- assistance of counsel because one lawyer represented
Mart reported the hot check to the district attorney and both of them. They also raised for the first time their
provided the company’s name and address and complaint that the broad-form jury charge made it
Rodriguez’s driver’s license number. The signature on impossible to determine whether at least ten jurors
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agreed on at least one statutory ground for terminating D. Divorce/Property Division/Retirement
their parental rights. A divided court of appeals reversed, Benefits
holding the parents had a due process right to effective 1. Keen v. Weaver, S.W.3d , 46 Tex. Sup. Ct. J.
assistance of counsel, relying by analogy on the Sixth 804 (June 19, 2003), cert. denied, U.S.
Amendment right to counsel in criminal law. The court (December 1, 2003) [01-0447].
further held that the broad-form jury change was The Supreme Court considered in this case whether
revers ible error that could be raised for the first time on the federal Employee Retirement Income Security Act
appeal. (ERISA) requires that a pension administrator pay an ex-
The Supreme Court held that, in deciding whether a wife, as designated beneficiary, annuity benefits that her
conflict of interest exists between parents opposing late ex-husband took as separate property in their divorce
termination in a single lawsuit, the trial court must agreement. As part of her divorce agreement, Keen, the
determine whether a substantial risk exists that the ex-wife, waived her interest in her ex-husband’s pension
appointed counsel’s obligations to one parent would plan, but he never changed his ex-wife’s designation as
materially and adversely affect his or her obligations to primary beneficiary after the divorce. When he died, his
the other parent. In this case the Court determined that mother, the contingent beneficiary, and his current wife
the trial court did not err in finding no conflict of interest sued after the pension-plan administrator paid benefits to
between the parents. The Court said that because no the ex-wife. The court of appeals reversed the trial
conflict of interest existed, the Court did not have to court’s decision to give the ex-wife the proceeds,
consider whether there is a constitutional right to reasoning that the ex-wife waived her right to the
effective assistance of counsel in parental termination annuities in the divorce. The court applied Texas’s
cases. The Court also concluded the complaint about the “redesignation” statute as federal common law.
broad-form jury charge was not preserved bec ause the The Supreme Court concluded that Keen’s waiver
parents failed to object the charge on that basis. was effective and enforceable. Although the U.S.
Supreme Court in Egelhoff v. Egelhoff, 532 U.S. 141
B. Child Support/Postjudgment Interest/ (2001), held that ERISA preempts state redesignation
Appellate Filing Fees statutes, the Court has also directed courts to look to
1. Office of the Att’y Gen. of Tex. v. Lee, 92 S.W.3d federal common-law principles and trust law when
526 (Tex. December 5, 2002) [01-0471]. ERISA’s text does not explicitly resolve the question
The issues are (1) whether child-support judgments presented. Although Keen argued that ERISA’s
are subject to post-judgment interest when the judgment text–specifically its anti-alienation provision–precludes
does not expressly award it, and (2) whether the attorney giving effect to her waiver of benefits, the Supreme
general, acting as a Title IV-D agency, is required to pay Court held that applying the federal common law of
appellate filing fees in a Title IV-D support appeal. waiver to Keen’s waiver does not implicate or interfere
The Supreme Court held that child-support with ERISA’s anti-alienation provision. And because it
judgments, like all other monetary judgments, accrue was clear that Keen’s waiver of benefits was specific,
post-judgment interest, and the attorney general, acting as knowing and voluntary, it was enforceable under federal
a Title IV-D agency, is not obligated to pay appellate common law.
filing fees. Justice Hecht dissented, arguing that, although the
U.S. Supreme Court expressly held in E gelhoff that
C. Contempt Order ERISA preempts a state statute from altering benefits
1. In re Sheshtawy, 2003 WL 1922869 (Tex. payments, the Court circumvented preemption law by
App.–Houston [1st Dist.] 2003), argument granted allowing state law to be reincarnated as federal common
on pet. for writ of habeas corpus, 46 Tex. Sup. law.
Ct. J. 1124 (September 11, 2003) [03-0766].
The issue in this case involving a contempt order is 2. Shanks v. Treadway, 110 S.W.3d 444 (Tex. June
whether the trial court or appellate court has 26, 2003) [00-1325].
enforcement power over a spousal-maintenance order The principal issue in this post-divorce property-
when an appeal of the decree is pending. The Supreme division case is the interpretation of a divorce decree that
Court heard argument in this case on November 19, divided contingent retirement benefits earned by one
2003. spouse from employment both during and after the
marriage. Both this case and Reiss v. Reiss (infra) raise
common questions regarding: (1) how to interpret a
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divorce decree that was not appealed in the original Treadway (supra), decided contemporaneously with this
divorce proceeding, and (2) the interpretation of the case, and unequivocally awarded the ex-wife half of the
divorce decrees in these two cases to determine what total retirement benefits, regardless of when they
portion of the benefits the decrees awarded to the non- accrued. Because there was no valid reason to interpret
employee spouse. In both cases, at the time the divorce the decree in this case differently from the decree in
decrees were entered (in 1981 for this case) and (in 1980 Shanks, the Supreme Court reversed to court of appeals
in Reiss), the retirement benefits the trial court divided and held that the ex-wife was entitled to 50 percent of
were contingent because the retirements of the employee the ex-husband’s retirement benefits valued at retirement
spouses were both years off. Upon both husbands’ even if that would divest the ex-husband of his separate
retirements in 1998, the trial courts entered a “qualified property because the husband had not directly appealed
domestic relations order” in each case to implement the the decree on that basis. The ex-husband also argued
decrees’ division of benefits. In this case, the trial court that the divorce decree was a void judgment and was
awarded the ex-wife 25 percent of her ex-husband’s therefore subject to collateral attack despite the fact that
retirement as valued at the time of divorce, but the court it was not appealed because the trial court did not have
of appeals reversed and remanded the case, interpreting jurisdiction to divest him of his separate property. But
the decree to award the ex-wife 25 percent of the total the Court said the judgment was not void because a court
amount of the benefits valued at the time of retirement. has jurisdiction to characterize community property even
T he Supreme Court affirmed, holding that the if it does so incorrectly; the judgment was merely
divorce decree’s award of a 25 percent interest of “the voidable because the trial court incorrectly characterized
total sum or sums paid or to be paid” to the ex-husband all the retirement benefits as community property.
from the retirement plan was unambiguous. According Because the judgment became final when it was not
to the Court, the ex-husband’s argument that the decree appealed, it could not be collaterally attacked now.
should be interpreted to award only an interest in Justice Jefferson dissented, arguing that the Court’s
community property, to avoid the prohibition against holding did not give due weight to material distinctions
divesting spouses of their separate property, failed for between the decree in this case and the decree in
two reasons. First, applying Taggart v. Taggart, the Shanks. Justice Jefferson asserted that the Court
controlling law at the time the divorce decrees were focused only on one subsection of the decree–the portion
entered, would still divest Shanks of a portion of his stating the ex-wife was to get half of the retirement plan
separate property. Second, the trial court’s erroneous benefits–but ignored a statement in the same subsection
application of the law when it entered the divorce decree of the decree that clearly and specifically identified the
was irrelevant because the unappealed decree was retirement benefits as community property and by
unambiguous and did not alter the decree’s plain express language purported to divide only the parties’
language. community interest in those benefits.
3. Reiss v. Reiss, 118 S.W.3d 439 (Tex. June 26, E. Parental Notification Act/Judicial Bypass
2003) [01-0251]. 1. In re Jane Doe 11, 92 S.W.3d 511 (Tex. October
In this case, the divorce decree stated that the 10, 2002) [02-0933].
parties “own community property” should be divided The issue in this case is whether the court of
equitably, that they owned the pension plan at issue as appeals properly dismissed a second appeal under
“community property” and had a vested interest in it, and Texas’s Parental Notification Act based on a purported
that the ex-wife “shall receive fifty percent (50%) of trial court judgment that did not decide a judicial bypass
such retirement or pension benefit to which [the ex- application for a juvenile seeking an abortion. The
husband] is entitled to receive . . . .” The trial court’s applicant filed October 1 for a court order allowing her
qualified domestic relations order awarded the ex-wife 50 an abortion without telling her parents. The district court
percent of retirement benefits valued at retirement, which conducted a hearing on October 2, but did not rule on the
would have included some of the ex-husband’s separate application or make fact findings. Instead, the court
property. The court of appeals reversed, holding that the issued a “judgment” in whic h it concluded that the
only property the dec ree purported to divide was parental bypass law was unconstitutional. The court of
community property. appeals properly dismissed Doe’s first appeal from the
The Supreme Court determined that the portion of “judgment” for lack of jurisdiction because the
the decree dividing the retirement benefits contained “judgment” did not rule on her application. When Jane
language very similar to the decree in Shanks v. asked the dis trict clerk to certify the application as
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granted, the clerk refused. The Supreme Court denied G. Termination of Parental Rights
her petition for writ of mandamus to order the district 1. In re L.S.R., 92 S.W.3d 529 (Tex. December 5,
clerk to issue the certificate, citing Vondy v. 2002) [02-0039].
Commissioners Court of Uvalde County, 620 S. W.2d In this appeal from a judgment terminating parental
104, 109 (Tex.1981), which held that a district court has rights, the court of appeals affirmed, but held that no
original mandamus jurisdiction over county officials. The evidence supported termination under Texas Family Code
court of appeals then dismissed Doe’s second appeal. section 161.001(1)(L)(iv) because no showing had been
The Supreme Court affirmed the court of appeals’ made that the father’s four-year-old cousin had suffered
dis missal of the second appeal, concluding that appeals serious injury as a result of the father’s conduct in
under Family Code chapter 33 can be taken only from a committing indecency with that child. The court of
trial court’s denial of a bypass application. The district appeals deleted that basis for termination from the
court’s action in this case contravenes the Court’s judgment. The Supreme Court denied the petition for
holding in In re Jane Doe 2, 19 S.W.3d 278, 284 (Tex. review, but issued an opinion disavowing “any suggestion
2000), that a court errs by raising and deciding on its own that molestation of a four-year-old, or indecency with a
the statute’s constitutionality. The district court did not child, does not cause serious injury.”
rule on the application within the statute’s requisite time
period, by 5:00 p.m. of the second business day following 2. In re J.F.C., 96 S.W.3d 256 (Tex. December 31,
the application. By failing to do so, the bypass application 2002) [01-0571].
is deemed granted under Texas Family Code section The issues the Supreme Court addressed in this case
33.003(h). The order could not be appealed and the are: (1) whether federal due process requires appellate
court of appeals properly dismissed the appeal for lack of review of unpreserved jury charge error in an involuntary
jurisdiction. parental-rights termination proceeding; (2) if so, whether
the error was harmless; and (3) whether broad-form
F. Request for Bench Warrant questions submitted to the jury provided procedural
1. In re Z.L.T., S.W.3d , 47 Tex. Sup. Ct. J. 113 safeguards for the parents. The State moved to
(November 21, 2003) [02-0474]. terminate the parents’ rights to three of their children
The issue is whether in this paternity action the trial based on child endangerment. The parents argued that
court abused its discretion by implicitly denying a pro se the jury never found termination to be in the children’s
inmate’s request for a bench warrant. The record in this best interest as required by statute because the best
case did not reflect an explicit ruling on the inmate’s interest element was omitted from material parts of the
request, but the trial court proceeded to trial without charge. They also argued that the disjunctive listing of
issuing the bench warrant. The court of appeals the statutory grounds for termination in the jury charge
concluded that the trial court abused its discretion by made it impossible to determine whether enough jurors
failing to expressly rule on the inmate’s request to be agreed on the particular grounds for termination and that
present at all hearings and rejected the argument that the they were denied effective assistance of counsel. The
trial court had no independent duty to identify and trial court entered an order terminating the parental rights
balance the factors courts must weigh to determine of each parent based on the jury’s answers to the charge,
whether a bench warrant should issue in a civil but the court of appeals reversed, reasoning that the
proceeding. parents’ federal due-process rights were violated by the
The Supreme Court held that the inmate did not “obvious and fundamental” jury charge error and that
meet his burden under Texas rules to identify with such error was harmful.
sufficient specificity the grounds for the ruling he sought. The Supreme Court reversed and rendered, holding:
A litigant’s status as an inmate does not alter that burden. (1) Texas Rule of Civil Procedure 279 requires supplying
The central issue, the Court explained, is the trial court’s the omitted “best interest” finding in support of the
responsibility to independently inquire into relevant facts judgment because the trial court made either an express
not provided by the moving party. The inmate’s request or deemed finding that termination was in the children’s
for a bench warrant included no information by which the best interest; (2) fundamental error cannot be used to
court could assess the necessity of his appearance. circumvent Rule 279's application; (3) applying Rule 279
Therefore, the trial court did not err in failing to rule on does not violate either state or federal due process; (4)
his motion. the parental conduct that was the basis for termination
was conclusively established, so the Court did not reach
the issue of whether disjunctive, broad-form submission
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of the grounds for termination violated the parents’ due language violated his constitutional right to due process;
process rights; and (5) assuming, without deciding, that a and (2) whether the mother’s signature on the affidavit
judgment terminating parental rights could be set aside of relinquishment was procured by undue influence or
based on ineffective assistance of a parent’s court- overreaching. At the conclusion of a bench trial, the trial
appointed counsel, assistance of counsel in this case was court terminated the parent-child relationship between
not ineffective. natural parents and their twin sons, concluding that their
Justice Hankinson dissented, arguing Rule 279 does affidavits of relinquishment were voluntarily executed
not answer the actual question presented of whether, in and were not procured by undue influence, coercion or
light of the constitutional interests at stake, the law overreaching. The court of appeals affirmed.
requires an appellate court to consider the parents’ The Supreme Court held that the father did not
complaints as if they did object to the charge. According preserve the issue he presented for appellate review.
to Justice Hankinson, the Court did not explain how it The father’s answer and counterclaim to the termination
could review the parents’ second unpreserved claim of proceedings cited no constitutional authority and he did
charge error (concerning broad-form submissions), not raise the due-process issue in any post-judgment
instead simply concluding that the error, if any, was motion. The Court said that allowing appellate review of
harmless. By refusing to answer the question presented, unpreserved error would undermine the Legislature’s
Justice Hankinson said, the Court did a disservice to intent that parental-termination cases be expeditiously
(1) the courts of appeals by failing to resolve the conflict resolved.
among them as to whether they may review unpreserved In an opinion joined by Justices Enoch, Schneider
error in termination cases, (2) our established and Smith, Justice O’Neill said that the mother also failed
jurisprudence, which permits us to review only preserved to preserve her undue-influence and fraud complaints.
complaints unless a recognized exception exists, and The mother argued in the Supreme Court that she agreed
(3) the parents and children entitled to consistent and to sign a voluntary affidavit of relinquishment based on
efficient appellate review that fairly adjudicates their unenforceable promises made by the adoptive parents to
complaints in these time-sensitive and compelling cases. send her pictures and updates about the children, but she
Justice Hankinson would have held that Texas’s did not plead or move after trial to challenge the
procedures for reviewing unpreserved charge error in enforceability of the adoptive parents’ promises. Justice
parental-rights-termination cases do not violate due O’Neill also said that the mother never raised in the trial
process and that the omission in the jury charge was not court her complaint that the police detective and his wife
harmful. She would have remanded the case to the court and the mother’s sister acted illegally as adoption
of appeals to consider the remaining issues, which that intermediaries and never secured a ruling on this theory
court had not addressed. in the trial court.
Justice Schneider, also dissenting, argued that the In a concurring opinion, Justice Wainwright said that
issues to be decided were: (1) whether federal due when a “voluntarily” executed relinquishment affidavit is
process requires appellate review of a jury-charge error the sole ground for terminating parental rights, placing the
in an involuntary parental-rights termination case when burden on the parents to set aside the affidavit–as the
error was not preserved in the trial court; (2) if so, court of appeals and the parties did–may run afoul of
whether the error was harmless; and (3) whether the c onstitutional and statutory mandates. The burden of
broad-form questions submitted to the jury in this case proof issue, however, was not briefed, nor was it
provided procedural safeguards for the parents. Justice expressly decided in the courts below, Justice
Schneider said the parents waived their right to review of Wainwright said. Moreover, Justice Wainwright
the alleged errors by failing to object at trial and that concluded that the mother’s appeal was unsuccessful
neither the Texas nor the federal Constitutions mandate regardless of whether or not she carried the burden of
appellate review of unpreserved jury-charge error. proof, so a decision on that issue was not necessary in
this case.
3. In re L.M.I., 119 S.W.3d 707 (Tex. September 18, In a concurring and dissenting opinion joined by
2003) [02-0244]. Chief Justice Phillips and joined in part by Justic e Hecht
In this case, the trial court terminated parents’ rights and Justice Jefferson, Justice Owen stated that there
to their twin boys based on the parents’ voluntary was no clear and convincing, legally sufficient evidence
affidavits of relinquishment. The principle issues are: (1) that material parts of the affidavit the father signed were
whether the adoption attorney’s failure to translate the disclosed to him and, thus, that he actually swore to and
affidavit of relinquishment into the father’s native agreed to be bound by the affidavit. Although the Court
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concluded that the trial court could have surmised that he 6. In re B.L.D., 113 S.W.3d 340 (Tex. July 3, 2003)
understood more English than he and others said he [01-0882].
could, Justice Owen pointed out that surmise is no The principal issues in this parental-rights termination
evidence at all, much less clear and convincing evidence. case are (1) whether the trial court should have granted
In dissent, Justice Hecht, joined by Justice Jefferson, separate trials for parents based on their court-appointed
said that the father did enough to preserve his due counsel’s alleged conflict of interest and (2) whether the
process claim in the lower courts. According to Justice parents preserved their complaint that jury questions that
Hecht, the father’s appellate lawyer clearly called the submitted multiple grounds for terminating their parental
termination of his parental rights a due-process violation. rights disjunctively and in “broad form” violated their due
And although his trial lawyer did not use those same process rights. The parents’ appointed counsel first
words, Justice Hecht said termination of parental rights, requested separate trials before trial began, claiming a
which are fundamental and constitutional in their potential conflict of interest existed. He later renewed
magnitude, should not turn on trifling points regarding the the request during trial, claiming that an actual conflict
construction of appellate briefs. The father had clearly had arisen based on the evidence adduced at trial. The
argued in the trial court and on appeal that he did not trial court denied both requests, and ultimately terminated
voluntarily relinquish his rights to his children because he both parents’ rights to their children based on the jury’s
did not understand the affidavit of relinquishment he verdict. On appeal the parents complained that they
signed and it was not translated into his native tongue. were denied effective assistance of counsel because one
lawyer represented both of them. They also raised for
4. In re A.F., 113 S.W.3d 363 (Tex. July 3, 2003) the first time their complaint that the broad-form jury
[02-1167]. charge made it impossible to determine whether at least
The Supreme Court held that parents’ complaint that ten jurors agreed on at least one statutory ground for
broad-form submission of the statutory grounds for terminating their parental rights. A divided court of
terminating their parental rights violated due process was appeals reversed, holding the parents had a due process
not preserved for appellate review because the parents right to effective assistance of counsel, relying by
did not object in the trial court to the alleged charge error. analogy on the Sixth Amendment right to counsel in
criminal law. The court further held that the broad-form
5. In re A.V., 113 S.W.3d 355 (Tex. July 3, 2003) jury charge was reversible error that could be raised for
[01-0706]. the first time on appeal.
The principal issues in this parental-rights The Supreme Court held that, in deciding whether a
termination case are (1) whether two years’ conflict of interest exists between parents opposing
incarceration as statutory grounds for termination means termination in a single lawsuit, the trial court must
two years before or after the State files its termination determine whether a substantial risk exists that the
petition and (2) whether it is an unconstitutional, appointed counsel’s obligations to one parent would
retroactive applic ation of the law to terminate parental materially and adversely affect his or her obligations to
rights based on a criminal conviction that occurred before the other parent. In this case the Court determined that
such conviction became a statutory ground for the trial court did not err in finding no conflict of interest
termination of parental rights. In this case the father was between the parents. The Court said that because no
serving a federal prison sentence for a drug conviction conflict of interest existed, the Court did not have to
when the state moved to terminate his and the mother’s consider whether there is a constitutional right to
parental rights based, in part, on a statutory ground effective assistance of counsel in parental termination
allowing for termination if a parent has knowingly cases. The Court also concluded the complaint about the
engaged in criminal conduct for which the parent is broad-form jury charge was not preserved because the
incarcerated and unable to care for the child “for not less parents failed to object to the charge on that basis.
than two years from the date of filing the petition.” TEX
FAMILY CODE § 161.001(1)(Q)). The Supreme Court 7. In re K.N.R., 113 S.W.3d 365 (Tex. July 3, 2003)
held that the incarceration time period and inability to [02-0442].
care for the child is prospective and that the subsection The Supreme Court held that a mother’s complaint
is constitutional even though applied to a parent that broad-form submission of the statutory grounds for
incarcerated before the subsection’s effective date. terminating her parental rights violated due process was
not preserved for appellate review because she did not
object in the trial court to the alleged charge error.
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8. In re M.S., 115 S.W.3d 534 (Tex. July 3, 2003) holding that federal law did not preempt either the
[02-0509]. contract or misrepresentation claims.
In this case, the Supreme Court decided, among The Supreme Court held that federal law preempted
other things, whether there is a statutory right to effective Black’s state law claims. Although the Court noted that
assistance of counsel in parental-rights termination cases courts have fashioned different tests to determine
and whether an appellate court can review a factual whether state law action relates to airline service, the
sufficiency claim that was not preserved in the trial court. Court observed that most courts generally agree that
A mother, whose parental rights were terminated, argued state law claims involving seating and boarding
that her court-appointed lawyer failed to ensure that the procedures relate to services and are preempted by the
court reporter transcribed select portions of the trial and ADA. Under federal regulations, airlines that deny a
failed to move for a new trial, precluding a factual passenger boarding because of an oversold flight must
sufficiency review on appeal. pay compensation, although the passenger involuntarily
The Supreme Court held that the mother had a denied boarding can decline payment and seek damages
statutory right to effective assistance of counsel. Then, in a lawsuit. But the regulations make such passengers
the Court determined that her attorney’s failure to ensure ineligible for denied boarding compensation if they are
that the court reporter recorded the entire trial court offered alternative accommodations at no extra charge.
proceeding did not amount to ineffective assistance of Black was not denied boarding: Delta offered his wife
counsel, but the attorney’s failure to preserve the another seat on the same flight. The Court said that,
mother’s factual sufficiency complaint could, under some under the ADA, a passenger is not eligible for denied-
circumstances, constitute ineffective assistance of board compensation if the airline offers accommodations
counsel. The Court accordingly remanded the cause to in another section of the plane at no charge. Because
the court of appeals to allow that court to determine the Blacks were not eligible for the compensation, they
whether counsel’s failure to preserve the factual could not possibly decline it and sue for damages.
sufficiency issue was objectively reasonable and whether
any error in preserving the factual sufficiency ground B. ERISA/Insurance Policies
deprived the mother of a fair trial. 1. Provident Life & Accident Ins. Co. v. Knott,
S.W.3d , Tex. Sup. Ct. J. (December 19,
XIX. FEDERAL PREEMPTION 2003) [02-0485].
A. Airline Deregulation Act of 1978 This case involves a dispute over disability-insurance
1. Delta Air Lines v. Black, 116 S.W.3d 745 (Tex. policy coverage. The issues presented include: (1)
September 11, 2003) [02-0255]. whether fact issues precluded summary judgment on the
In this case, an airline passenger sued Delta Air insured’s status as being “totally disabled” within the
Lines after the airline failed to seat both him and his wife meaning of his insurance policies; (2) whether fact issues
in first class for one leg of their round-trip ticket precluded summary judgment on when the disability
purchase. The principal issue the Supreme Court arose for the purpose of total disability payments; (3)
decided is whether the federal Airline Deregulation Act whether state law breach of contract and
of 1978 (ADA) preempts such a suit. The passenger, misrepresentation claims are preempted by ERISA, the
Black, sued Delta for contract breach and Delta and a Employee Retirement Income Security Act of 1974, 29
gate supervisor for misrepresentation. Black claimed he U.S.C.A. § 1002 et seq.; and (4) whether the statute of
made reservations for two first-class seats to Las Vegas limitations had expired on the insured’s bad-faith and
from Dallas-Fort Worth, but despite travel agent records misrepresentation claims. In this case, Knott, a
and ticket coupons both showing confirmed first-class gynecologist, claimed he was disabled in a 1985 airplane
reservations, Delta’s computer records showed only a crash. Knott submitted a claim for total disability to
first-class seat for Black. Delta was unable to Provident, which Provident denied because Knott had
accommodate Black’s wife in first class on the same resumed performing some of his work duties. After
flight. Black rejected the airline’s options for alternative negotiations, Provident agreed to make partial disability
accommodations–coach seats together on that flight or payments to Knott for a period of time and to forgo
first-class seats on other flights–and instead chartered a payment of his insurance premiums while he was
private jet, costing $13,150, to fly them to Las Vegas. receiving benefits. Shortly after Knott’s 65th birthday,
The trial court granted both Delta and the gate agent some 10 years after the plane crash and several years
summary judgment, but the court of appeals reversed, after Provident ceased making payments, Knott
submitted a claim for total disability benefits. Provident
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then paid Knott disability payments for 24 months before annuities in the divorce. The court applied Texas’s
closing the claim because it had paid him the maximum “redesignation” statute as federal common law.
benefits under the policy. Under the “policy schedule” in The Supreme Court concluded that Keen’s waiver
both disability insurance policies at issue, the maximum was effective and enforceable. Although the U.S.
benefit period for total disability commencing on or after Supreme Court in Egelhoff v. Egelhoff, 532 U.S. 141
the insured's 65th birthday was twenty-four months, but (2001), held that ERISA preempts state redesignation
an insured whose total disability arose before his 65th statutes, the Court has also directed courts to look to
birthday was entitled to lifetime benefits under the federal common-law principles and trust law when
policies. Knott therefore sued Provident for breach of ERISA’s text does not explicitly resolve the question
contract and misrepresentation. The trial court granted presented. Although Keen argued that ERISA’s
summary judgment for Provident. The court of appeals text–specifically its anti-alienation provision–precludes
reversed in part, holding that fact issues existed as to giving effect to her waiver of benefits, the Supreme
whether Knott was totally disabled and whether the Court held that applying the federal common law of
insurance policies constituted an ERISA plan, but waiver to Keen’s waiver does not implicate or interfere
affirmed summary judgment on Knott’s bad faith and with ERISA’s anti-alienation provision. And because it
misrepresentation claims, concluding that the statute of was clear that Keen’s waiver of benefits was specific,
limitations had run. knowing and voluntary, it was enforceable under federal
The Supreme Court held that a person is totally common law.
disabled under the policies at issue when the person is Justic e Hecht dissented, arguing that, although the
unable to perform all the important and usual duties of U.S. Supreme Court expressly held in Egel h o f f that
his occupation. In this case, the Court said, the facts ERISA preempts a state statute from altering benefits
demonstrated that Knott was only partially disabled payments, the Court circumvented preemption law by
because, except for the 90-day period after the plane allowing state law to be reincarnated as federal common
crash (the “elimination period” under the insurance law.
agreement), Knott was always able to perform at least
some of his important daily business duties. The XX. GAMBLING
Supreme Court also held that the two-year statute of A. Gambling Devices/Burden of Proof
limitations had run on Knott’s bad faith and 1. Hardy v. State, 102 S.W.3d 123 (Tex. April 3, 2003)
misrepresentation claims by the time he filed suit. The [01-0779].
Court said that an insurer does not have to use “magic The issues presented in this civil forfeiture
words” in its denial of an insured’s claim if the insurer’s proceeding are (1) whether the State has the burden of
determination regarding a claim and its reasons for the proving that seized gambling devices are illegal and (2)
decision are contained in a clear writing to the insured. whether the seized eight-liners in this case fell under an
amusement exclusion to gambling laws by awarding
C. ERISA/Waiver of Benefits in Divorce Decree tickets that could be exchanged for gift certificates or
1. Keen v. Weaver, S.W.3d , 46 Tex. Sup. Ct. J. cash to play other machines. Police officers with a
804 (June 19, 2003), cert. denied, U.S. search warrant seized eight-liners and related
(December 1, 2003) [01-0447]. paraphernalia and proceeds from the Hardys’ Marble
The Supreme Court considered in this case whether Falls amusement business. The Hardys were then
the federal Employee Retirement Income Security Act notified of a hearing at which they had to show why the
(ERISA) requires that a pension administrator pay an ex- machines and property should not be destroyed or
wife, as designated beneficiary, annuity benefits that her forfeited. The trial court found the eight-liners to be
late ex-husband took as separate property in their divorce gambling devices and the other seized items to be
agreement. As part of her divorce agreement, Keen, the gambling paraphernalia or proceeds. The court of
ex-wife, waived her interest in her ex-husband’s pension appeals affirmed, but held that the State bore the burden
plan, but he never changed his ex-wife’s designation as of proving the eight-liners were illegal gambling devices.
primary beneficiary after the divorce. When he died, his The Supreme Court held that (1) the person seeking
mother, the contingent beneficiary, and his current wife to avoid forfeiture carries the burden of proof that the
sued after the pension-plan administrator paid benefits to seized devices are not illegal gambling machines and (2)
the ex-wife. The court of appeals reversed the trial the eight-liners in this case did not fall under the exclusion
court’s decision to give the ex-wife the proceeds, for rewarding players “exclusively with noncash
reasoning that the ex-wife waived her right to the merchandise prizes, toys or novelties, or a representation
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of value redeemable for those items.” The Court said would bring “undesirables” into the community. The
that, once the State has established probable cause to Board voted to revoke the building permit. Champion
initiate a forfeiture hearing, the State has met its burden successfully appealed to the trial court. The City
under Texas Code of Criminal Procedure article 18. The thereafter passed an ordinance that would have allowed
burden then shifts to the claimant to prove the property Champion to end the project’s “split zoning” problem, but
is not subject to forfeiture. And because the eight-liners failed to notify Champion. Then, the City passed another
in this case awarded merchandise gift certificates or cash ordinance that raised the minimum square footage of
to play other machines, rather than awarding prizes, toys apartments. Allegedly as a result of the Board’s and
or novelties, they did not qualify for the amusement City’s actions, Champion could not go forward with the
exclusion in section 47.01(4)(B) of the Penal Code. The project.
$5 gift certificates, redeemable for Wal-Mart Champion sued the City, Board, and certain
merchandise, were a cash equivalent that could be used members of the Board, alleging that the Board members
the same as $5 bills. And as to cash awarded to play were negligent in denying the permit. Champion also
again, even though an attendant deposited the cash in asserted that the City’s and Board’s actions in passing
another machine, under the statute this was not a the ordinances and denying its initial building permit
noncash merchandise prize, toy or novelty. application amounted to a taking. The jury found that (1)
the Board members were not immune from liability, (2)
2. State v. One Super Cherry Master Video 8-Liner the Board members were negligent, and (3) the City’s
Mach., 102 S.W.3d 132 (Tex. April 3, 2003) and Board’s actions constituted a “taking” under the
[01-0673]. constitution. The trial court, however, rendered judgment
The court of appeals in this case affirmed the jury’s n.o.v. for the Board, its members, and the City. The
finding that eight-liners seized in a raid were not gambling court of appeals affirmed in part and reversed in part,
devices. The court of appeals held that the State had the holding that the Board members’ bad faith waived their
burden to prove the eight-liners were gambling devices official immunity. The court of appeals further held that
under the law and did not fall under the amusement a judgment n.o.v. was inappropriate as to the Board
exclusion. members, as there was more than a scintilla of evidence
The Supreme Court determined that the disposition to support the jury’s findings of negligence. The court of
of this case was controlled by Hardy v. State (supra). appeals further held that there had been no “taking” by
Applying Hardy, the Court reversed and rendered the Board or the City. The Supreme Court granted the
judgment in favor of the State. City’s petition for review and heard oral argument on
January 22, 2003.
XXI. GOVERNMENTAL IMMUNITY
A. Bad Faith B. City Councilman/Attorney/Fiduciary Duty to
1. City of Terrell Hills v. Champion Builders, 70 Law Firm Clients
S.W.3d 221 (Tex. App.–San Antonio 2001), pet. for 1. Joe v. Two Thirty Nine Joint Venture, 60 S.W.3d
review granted, 46 Tex. Sup. Ct. J. 15 (October 10, 896 (Tex. App.–Dallas 2001), pet. for review
2002) [02-0260]. granted, 46 Tex. Sup. Ct. J. 434 (February 13,
The issues are whether (1) the court of appeals 2003) [02-0218].
correctly considered bad-faith evidence to defeat an The issues in this case are whether: (1) a lawyer-
official immunity defense, and (2) whether city officials legislator whose actions as a city councilman allegedly
waived their legislative-immunity defense by only conflict with the interests of his law firm’s clients is
pleading and arguing official immunity. Champion entitled to have his immunity defense ruled on before
Builders sought to build an eight-unit apartment complex discovery; (2) the lawyer-legislator and his law firm have
in Terrell Hills. City staff persons initially “tacitly a duty to the firm’s clients to check for and inform clients
approved” the project. However, the City denied of potential conflicts between the clients’ interests and
Champion’s first building permit application because the the lawyer’s position as a city councilman on public
lot was “split zoned.” Rather than seek a zoning issues; and (3) the lawyer-legislator is entitled to absolute
variance, Champion scaled the project down to six units. or qualified immunity. The Supreme Court heard oral
The City issued a building permit, and residents filed an argument in this case on April 9, 2003
appeal contesting the permit. The matter went before
the Board of Adjustment. During a closed session,
Board members allegedly opposed the project because it
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C. Conduct/Real Estate Trade fraud, and deceptive trade practices. The trial court
1. Catalina Dev., Inc. v. El Paso County, S.W.3d denied Halsey’s summary-judgment motion. The court
, 46 Tex. Sup. Ct. J. 636 (May 8, 2003) [02-0299]. of appeals reversed, reasoning that a court reporter’s
The issue in this case is whether the county waived duties are intimately associated with the judicial process.
its immunity in a breach-of-contract suit by accepting a The Supreme Court held that court reporters
bid on a land sale and depositing an earnest-money preparing a trial transcript are not entitled to derived
check. El Paso County advertised the land for sale, and judicial immunity because they are not engaged in a
Collins bid a little more than $2.5 million–the land’s discretionary function, nor do they exercise judgment
appraised value–and submitted an earnest-money comparable to a judge’s. The Court said a court
contract and $5,000 check. County commissioners reporter’s trial-record preparation is by nature more
accepted the bid and deposited the check. Collins ministerial or administrative and cannot be construed as
deposited earnest money with a title company and the functional equivalent of a judge.
approved a warranty deed and affidavit the county sent
him. Before commissioners could approve the deal, two 2. Harris County v. Sykes, 89 S.W.3d 661 (Tex.
of them, together with the incoming county judge, App.–Houston [1st Dist.] 2002), pet. for review
successfully sued to block the sale. Catalina and Collins granted, 46 Tex. Sup. Ct. J. 1058 (August 28, 2003)
then sued the county for breach of contract and for [02-1014].
specific performance to convey the property. The trial The issues raised in this case are whether a trial
court granted summary judgment for the county on the court order granting a plea to the jurisdiction based on
immunity issue. The court of appeals affirmed, citing governmental immunity is a dismissal “with” or “without”
General Services Commission v. Little-Tex Insulation prejudice and whether a judgment denying derivative
Co., 39 S.W.3d 591 (Tex. 2001). immunity to a governmental employee under section
The Supreme Court affirmed, holding that the 101.106 of the Texas Tort Claims Act based on a
county did not waive its governmental immunity from conclusion that the trial court’s dismissal order was
suit. El Paso County’s actions were necessary and “without prejudice” of the action can be reviewed by the
expected during contract formation, the Court said, but Supreme Court. The Supreme Court heard argument in
contract formation, by itself, was not sufficient to waive this case on November 12, 2003.
immunity from suit. The Court stated that an equitable
basis for a waiver by conduct did not exist under the E. Evidence
facts of this case. Instead, the Court said, the facts 1. Tex. Dep’t of Parks & Wildlife v. Miranda, 55
illustrated a fundamental reason immunity exists–to S.W.3d 648 (Tex. App.–San Antonio 2001), pet. for
prevent governmental entities from being bound by their review granted on reh’g, 45 Tex. Sup. Ct. J. 999
predecessors’ policy decisions. (July 3, 2002) [01-0619].
In dissent, Justice Enoch asserted that the majority The issue is whether the trial court should have
opinion demonstrates that the Court will never find considered evidence beyond the pleadings before denying
waiver by conduct and argued that the county’s using the the State’s jurisdictional plea to the jurisdiction, based on
earnest money, despite its intention not to execute the governmental immunity and the Mirandas’ alleged failure
warranty deed, distinguished this case from every other to show the state’s gross negligence under the
case the Court has previously considered on waiver of Recreational Use Statute. The Mirandas sued the State
immunity by conduct. after Maria Miranda suffered severe injuries when a
pecan branch fell on her head at a Garner State Park
D. Derivative Immunity campsite. They alleged the tree posed a danger that the
1. Dallas County v. Halsey, 87 S.W.3d 552 (Tex. department recognized but failed to fix and about which
October 24, 2002) [01-0784]. it consciously and deliberately failed to warn them. The
The issue is whether “derived judicial immunity” State responded that the Mirandas’ claim was controlled
protects a court reporter from a county’s lawsuit to by the Recreational Use Statute because they raised a
recover for work that produced an inaccurate trial premises defect at a campground. Under the statute, the
transcript. In this case, Dallas County sued Halsey over State argues, the Mirandas had to prove the department
as many as 18,000 inaccuracies it alleged in the 6,000- was grossly negligent, but they could not do so based on
page Darlie Routier murder trial transcript. The county State park employees’ testimony that the tree was in
paid Halsey, a county employee, close to $63,000 to good health and showed no indication that a branch was
prepare the transcript and sued for breach of contract, ready to drop. The court of appeals affirmed the trial
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court’s denial of the state’s jurisdictional plea. The court The Supreme Court held that sitting on a swing is an
reasoned that the trial court could not delve into the activity the Legislature intended to include as
substance of the Mirandas’ claims because the State did “recreation” when it enacted the Recreational Use
not specifically allege the Mirandas’ pleadings were a Statute. The City, however, owed Torres the duty not to
sham to wrongfully obtain jurisdiction. The State argues injure her through willful, wanton, or grossly negligent
that the Supreme Court has jurisdiction to hear this case conduct, and because Torres did not plead any willful,
because the court of appeals’ decision conflicts with prior wanton, or grossly negligent conduct, she could not
Supreme Court decisions. The Supreme Court granted recover from the City as a matter of law.
the State’s petition for review and heard argument on Justice Hankinson dissented, arguing that the
October 30, 2002. Court’s interpretation of “recreation” essentially wrote
out of the statute the definition of recreation and the
F. Nuisance/Sewage Flooding policy choic es represented by that definition. Under the
1. City of Dallas v. Jennings, 2001 WL 800108 (Tex. Court’s interpretation of the Recreational Use Statute,
App.–Dallas 2001), pet. for review granted, 45 Justice Hankinson said, the fact that someone is outside
Tex. Sup. Ct. J. 590 (April 25, 2002) [01-1012]. w hen he or she is injured is the sole fact triggering that
The principal issue in this nuisance law suit arising statute’s limitation of liability on the part of the
from sewage flooding is whether the City’s intentional landowner. The Legislature did not, however, draft such
conduct can be established from risks inherent in the a broad exception to the traditional duties of care owed
operation of sewer systems. The Jenningses sued the entrants on land and instead circumscribed the limitation
City after a clogged pipe caused backed-up sewage to on liability by, among other things, defining “recreation”
flood their home. They claimed the flooding was a with a detailed list of activities. Justice Hankinson
nuisance inherent in operating the sewer system, argued that although that list is not exhaustive, it must
regardless of negligence, and the City’s actions were an have some meaning.
unconstitutional taking of their property without adequate
compensation. The trial court granted summary H. Waiver
judgment for the City, concluding that the Jenningses’ 1. City of Terrell Hills v. Champion Builders, 70
claims were barred by governmental immunity. The S.W.3d 221 (Tex. App.–San Antonio 2001), pet. for
court of appeals reversed. The Supreme Court granted review granted, 46 Tex. Sup. Ct. J. 15 (October 10,
the City’s petition for review and heard argument on 2002) [02-0260].
September 11, 2002. The issues are whether (1) the court of appeals
correctly considered bad-faith evidence to defeat an
G. Premises Liability/Recreational Use Statute official immunity defense, and (2) whether city officials
1. City of Bellmead v. Torres, 89 S.W.3d 611 (Tex. waived their legislative-immunity defense by only
November 5, 2002) [01-0299]. pleading and arguing official immunity. Champion
The issue is whether using playground equipment is Builders sought to build an eight-unit apartment complex
“recreation” within the meaning of the Recreational Use in Terrell Hills. City staff persons initially “tacitly
Statute, which limits a landowner’s liability in certain approved” the project. However, the City denied
circumstances. In this case, Torres, who had played in Champion’s first building permit application because the
a softball tournament at a City-owned complex in 1996, lot was “split zoned.” Rather than seek a zoning
sued the City after she was injured when a swing in variance, Champion scaled the project down to six units.
which she was sitting broke as she watched the The City issued a building permit, and residents filed an
subsequent championship game. The City moved for appeal contesting the permit. The matter went before
summary judgment, contending that it was not liable for the Board of Adjustment. During a closed session,
negligence under the Recreational Use Statute. The Board members allegedly opposed the project because it
statute at that time defined recreation as “an activity such would bring “undesirables” into the community. The
as hunting, fishing, swimming, boating, camping, Board voted to revoke the building permit. Champion
picnicking, hiking, pleasure driving, nature study, cave successfully appealed to the trial court. The City
exploration, and waterskiing and other water sports.” thereafter passed an ordinance that would have allowed
The Legislature in 1997 added “any other activity Champion to end the project’s “split zoning” problem, but
associated with enjoying nature or the outdoors” to the failed to notify Champion. Then, the City passed another
list. The trial court granted summary judgment for the ordinance that raised the minimum square footage of
City. The court of appeals reversed. apartments. Allegedly as a result of the Board’s and
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Supreme Court Update Chapter 11
City’s actions, Champion could not go forward with the 3. Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692
project. (Tex. March 6, 2003) [01-0491].
Champion sued the City, Board, and certain In this case, the Supreme Court considered whether
members of the Board, alleging that the Board members section 321.003 of the Texas Health and Safety Code
were negligent in denying the permit. Champion also waives governmental immunity in a wrongful-death
asserted that the City’s and Board’s actions in passing lawsuit. The plaintiff in this case, Taylor, sued the state
the ordinances and denying its initial building permit hospital after her husband committed suicide shortly after
application amounted to a taking. The jury found that (1) the hospital released him. The state hospital moved to
the Board members were not immune from liability, (2) dismiss the suit for want of jurisdiction, arguing that the
the Board members were negligent, and (3) the City’s statutory bill-of-rights did not clearly and unambiguously
and Board’s actions constituted a “taking” under the waive sovereign immunity and that Taylor’s claim did not
constitution. The trial court, however, rendered judgment rely on an exception under the Texas Tort Claims Act.
n.o.v. for the Board, its members, and the City. The The trial court denied the hospital’s jurisdictional plea, but
court of appeals affirmed in part and reversed in part, the court of appeals reversed.
holding that the Board members’ bad faith waived their The Supreme Court held in this case of first
official immunity. The court of appeals further held that impression that the statutory bill of rights does not
a judgment n.o.v. was inappropriate as to the Board explicitly authorize a suit against the State nor authorize
members, as there was more than a scintilla of evidence one by implication. Texas Health & Safety Code section
to support the jury’s findings of negligence. The court of 321.002 provides in part that a “mental health facility . .
appeals further held that there had been no “taking” by . is liable” to someone harmed as a result of violation of
the Board or the City. The Supreme Court granted the the bill of rights. The Court noted that “mental health
City’s petition for review and heard oral argument on facility” is defined by incorporating section 571.003,
January 22, 2003. which includes state and federally operated facilities, but
that section does not contain the explicit language the
2. San Antonio State Hosp. v. Cowan, 75 S.W.3d 19 Legislature generally uses to waive sovereign immunity.
(Tex. App.–San Antonio 2001), pet. for review The Court further said that the legislative history suggests
granted, 46 Tex. Sup. Ct. J. 197 (November 21, that the bill of rights was intended to regulate private-
2002) [02-0348]. treatment facilities even if a lawsuit against the state is
The principal issue is whether a state hospital barred, so it does not waive immunity beyond a
waived governmental immunity under the Texas Tort reasonable doubt–one of the standards for finding waiver
Claims Act when a patient committed to the hospital used by implication. Moreover, the Court observed that
his own personal property, which the hospital allowed him wholesale incorporation of section 571.003 would
to keep, to kill himself. Texas Civil Practice & Remedies logically waive federal immunity for federal facilities,
Code section 101.021(2) makes a governmental unit which the state cannot do. This ambiguity, the Court
liable for personal injury and death caused by a condition said, precluded an unmistakable legislative intent to waive
or use of tangible personal property if the government sovereign immunity.
unit would, were it a private entity, be liable to the
claimant under Texas law. James Cowan was judicially 4. Dallas Area Rapid Transit v. Whitley, 104 S.W.3d
committed to San Antonio State Hospital and placed 540 (Tex. April 17, 2003) [02-0177].
under suicide watch. At the hospital, Cowan was In this case Whitley, who had cerebral palsy, sued
allowed to keep his metal walker and his suspenders. DART for negligence after he was beaten severely
Two days later, Cowan used the walker and suspenders following a confrontation with another bus passenger
to strangle himself to death. His wife, Kimberly Cowan, who harassed him and threatened him with a box-cutter
brought a wrongful death suit against the hospital. The on the bus. The beating occurred after the bus driver
trial court granted summary judgment in favor of the ordered Whitley to get off the bus and promised to come
hospital, holding that it had not waived its sovereign back and pick him up but failed to do so. Several blocks
immunity. The court of appeals reversed. The Supreme after Whitley got off, the woman who threatened him
Court granted the hospital’s petition for review and heard also got off the bus and gathered a group, including her
argument on February 12, 2003. son, who found Whitley and beat him with pipes and
boards. In his lawsuit, Whitney alleged, among other
claims, that the driver failed to use due care to protect
him, wrongfully ejected him from the bus in a remote and
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dangerous area and failed to return to pick him up. The XXII. HABEAS CORPUS
trial court dismissed the suit on DART’s plea to the A. Contempt Order
jurisdiction based on governmental immunity, concluding 1. In re Sheshtawy, 2003 WL 1922869 (Tex.
DART was immune because Whitley’s injuries did not App.–Houston [1st Dist.] 2003), argument granted
arise from the bus’s operation. The court of appeals on pet. for writ of habeas corpus, 46 Tex. Sup.
reversed, reasoning that Whitley raised a fact question Ct. J. 1124 (September 11, 2003) [03-0766].
about whether the bus driver “took affirmation action The issue in this case involving a contempt order is
involving the use of the bus that contributed to Whitley’s whether the trial court or appellate court has
injuries.” enforcement power over a spousal-maintenanc e order
The Supreme Court held that Whitley’s injuries did when an appeal of the decree is pending. The Supreme
not arise from operation or use of the transit system bus. Court heard argument in this case on November 19,
Rather, his injuries resulted from the bus driver’s failure 2003.
to supervise the public, which is insufficient to waive
immunity under the Texas Tort Claims Act. The Court XXIII. INSURANCE
stated that waiver of immunity in a case like this requires A. Article 21.55/Applicability/Third-Party Claims
more than mere involvement of property–the vehicle 1. N. County Mut. Ins. Co. v. Davalos, 84 S.W.3d 314
must actually have caused the injury. (Tex. App.–Corpus Christi 2002), pet. for review
granted, 46 Tex. Sup. Ct. J. 682 (May 22, 2003)
5. Beaumont State Ctr. v. Kozlowski, 108 S.W.3d 899 [02-1007].
(Tex. June 5, 2003) [02-0243]. The issues are (1) whether an insurer breaches its
In this sovereign immunity case, the controlling issue duty to defend by requiring an insured to waive its motion
is whether the Texas Health and Safety Code section to transfer venue and replace its attorney with the
321.003 evidences legislative intent to waive sovereign insurer’s attorney before the insurer will provide a
immunity clearly and unambiguously. Kozlowski sued defense; (2) whether an insurer fails to timely accept or
Beaumont State Center, alleging it negligently allowed reject an insured’s claim under Texas Insurance Code
one patient to injure another. The court of appeals Article 21.55 when it requires that the insured waive his
denied the Center’s plea to the jurisdiction. The Supreme motion to transfer venue and turn over his defense to the
Court reversed and dismissed the case for want of insurer; and (3) whether the express terms of Article
jurisdiction, saying that its holding in Wichita Falls State 21.55 apply only to first-party claims.
Hospital v. Taylor (supra) that section 321.003 did not Timoteo Davalos was involved in a car accident in
waive sovereign immunity was dispositive. Dallas County. Davalos sued the driver of the other car
in Matagorda County for negligence. The driver of the
6. Ctr. for Health Care Servs. v. Quintanilla, S.W.3d other car later sued Davalos in Dallas County for his
, 46 Tex. Sup. Ct. J. 1103 (August 28, 2003) [02- alleged negligence. Before requesting a defense from
0942]. Northern County Mutual Insurance Co., Davalos hired
In this case, the Supreme Court determined whether his own counsel, who filed an answer and a motion to
the Legislature intended to waive the State’s sovereign transfer venue of the Dallas County case to Matagorda
immunity from suit by enacting Texas Health and Safety County. Davalos’s counsel then notified Northern of the
Code section 161.134. Quintanilla sued The Center for Dallas County case and requested that it provide a
Health Care Services, a mental health and mental defense to Davalos. Northern responded and requested
retardation center, alleging, among other things, that the that Davalos replace his attorney with Northern’s
Center terminated his employment in violation of section attorney and withdraw his motion to transfer venue to
161.134 of the Texas Health and Safety Code and the Matagorda County. Davalos refused to comply with
Texas Whistleblower Act. The Supreme Court held that Northern’s request and kept his attorney. Davalos then
Wichita Falls State Hospital v. Taylor, 106 S.W.3d 692 sued Northern in Matagorda County, alleging that
(Tex. 2003), was dispositive of Quintanilla’s claim. In Northern breached the insurance policy, engaged in
Taylor, the Court held that section 321.003 of the Texas deceptive acts in violation of Texas Insurance Code
Health and Safety Code, which has language nearly Article 21.21, and violated article 21.55 by failing to
identic al to section 161.134, did not waive the State’s defend Davalos. The trial court granted summary
sovereign immunity. See also Dallas Metrocare Servs. judgment for Davalos. The court of appeals affirmed,
v. Pratt,46 Tex. Sup. Ct. J. 1105 (August 28, 2003) holding that because the parties’ different choice on
[03-0012].
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venue was a conflict of interest, Northern had forfeited different wording–“arising out of” versus “due to” in
its right to control the defense and settle the claim. parallel exclusions–the Court concluded the phrases
In its petition to the Supreme Court, Northern argues should have different meanings in the context of the
that (1) an insurer does not tender a conditional defense policy. The most reasonable conclusion, the Court said,
by exercising its contractual right to control tactical was that “due to” requires more direct causation, tying
decisions in litigation; (2) an insurer does not violate the insured’s liability to the manner in which the services
Article 21.55 by demanding that its insured yield control were performed.
of the litigation to the insurer; and (3) Article 21.55 does In the plurality opinion, Chief Justice Phillips, joined
not apply to Davalos’s third party claim. The Supreme by Justices O’Neill, Schneider and Smith, concluded that
Court granted Northern’s petition for review and heard the parties intended the general-liability policy to exclude
argument on October 8, 2003. coverage normally provided by professional liability
policies–namely, coverage for breach of a professional
B. Duty to Defend standard of care. The plurality said American Indemnity
1. Utica Nat’l Ins. Co. v. Am. Indem. Co., S.W.3d and the substituted professional-liability carrier met their
, 46 Tex. Sup. Ct. J. 866 (June 26, 2003), reh’g burden to show their interpretation of the exclusionary
granted Tex. Sup. Ct. J. (December 19, 2003) provision was reasonable.
[02-0090]. In dissent, Justice Enoch said the Court’s entire
The principal issue in this case is whether a general- opinion was crafted around a purported concession by
liability insurer has a duty to defend in a personal-injury Utica that the storage of anesthesia narcotics does not
lawsuit against its policyholder when the injury resulted implicate a professional standard of care and that the
from multiple causes but would not have occurred premise underlying that purported concession was false.
without “professional services,” which were expressly
excluded under the general-liability policy. In this case, 2. N. County Mut. Ins. Co. v. Davalos, 84 S.W.3d 314
anesthesiologists were sued after 44 people treated at a (Tex. App.–Corpus Christi 2002), pet. for review
hospital contracted hepatitis-C from a contaminated granted, 46 Tex. Sup. Ct. J. 682 (May 22, 2003)
anesthetic. An infected hospital employee contaminated [02-1007].
the drug when he extracted it from vials with a dirty The issues are (1) whether an insurer breaches its
syringe, then replaced the stolen drug with saline solution. duty to defend by requiring an insured to waive its motion
After settlement of most of the cases by the medical- to transfer venue and replace its attorney with the
malpractice insurer, the remaining plaintiffs changed their insurer’s attorney before the insurer will provide a
pleading to implicate general-liability coverage that Utica defense; (2) whether an insurer fails to timely accept or
and American Indemnity provided, arguing negligent reject an insured’s claim under Texas Insurance Code
storage of the drug. Utica refused to defend the doctors Article 21.55 when it requires that the insured waive his
against claims by the remaining plaintiffs. American motion to transfer venue and turn over his defense to the
Indemnity and the substitute for the doctors’ insurer; and (3) whether the express terms of Article
professional-liability insurer after its insolvency settled 21.55 apply only to first-party claims.
with the remaining plaintiffs. American Indemnity then Timoteo Davalos was involved in a car accident in
sought to determine each insurance company’s duty to Dallas County. Davalos sued the driver of the other car
defend and pay in the personal-injury suit. The substitute in Matagorda County for negligence. The driver of the
for the professional-liability insurer settled with American other car later sued Davalos in Dallas County for his
Indemnity and joined its suit against Utica. The trial alleged negligence. Before requesting a defense from
court granted summary judgment against Utica, and the Northern County Mutual Insurance Co., Davalos hired
court of appeals affirmed. his own counsel, who filed an answer and a motion to
The Supreme Court held that the general-liability transfer venue of the Dallas County case to Matagorda
policy excluded coverage only when an injury was County. Davalos’s counsel then notified Northern of the
caused by breach of a professional standard of care. Dallas County case and requested that it provide a
Because the dispute concerned an exclusionary clause, defense to Davalos. Northern responded and requested
in contrast to a coverage clause, the Court said it would that Davalos replace his attorney with Northern’s
adopt the insured’s construction of the clause if attorney and withdraw his motion to transfer venue to
reasonable, even if the construction urged by the insurer Matagorda County. Davalos refused to comply with
appeared to be more reasonable or a more accurate Northern’s request and kept his attorney. Davalos then
reflection of the parties’ intent. Because the policy used sued Northern in Matagorda County, alleging that
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Northern breached the insurance policy, engaged in vehicle, and he was not “struck by” the pickup. The
deceptive acts in violation of Texas Insurance Code Supreme Court granted Old American’s petition for
Artic le 21.21, and violated article 21.55 by failing to review and heard argument on December 10, 2003.
defend Davalos. The trial court granted summary
judgment for Davalos. The court of appeals affirmed, D. Policies/Discovery
holding that because the parties’ different choice on 1. In re Senior Living Props., LLC, 63 S.W.3d 594
venue was a conflict of interest, Northern had forfeited (Tex. App.–Tyler 2002), argument granted on pet.
its right to control the defense and settle the claim. In for writ of mandamus, 45 Tex. Sup. Ct. J. 641
its petition to the Supreme Court, Northern argues that (May 16, 2002) , abated, 46 Tex. Sup. Ct. J. 600
(1) an insurer does not tender a conditional defense by (April 24, 2003) [02-0087].
exercising its contractual right to control tactical decisions This mandamus proceeding raises the question of
in litigation; (2) an insurer does not violate Article 21.55 whether the trial court abused its discretion in compelling
by demanding that its insured yield control of the litigation relators to produce for deposition their corporate
to the insurer; and (3) Article 21.55 does not apply to representatives having the most knowledge about certain
Davalos’s third party claim. The Supreme Court granted insurance coverage issues. Plaintiff sued relators and
Northern’s petition for review and heard argument on other defendants for medical negligence. Plaintiff served
October 8, 2003. an interrogatory on relators that asked them, with regard
to any insurance policy that provides coverage to relators
C. Personal Injury Protection or for any injuries made the basis of plaintiff’s claim, to: (a)
Uninsured/Unde rinsured Motorist Coverage/ identify all applicable policies by name of the insurer and
Waiver policy period; and (b) state the number of claims and the
1. Old Am. County Mut. Fire Ins. Co. v. Sanchez, 81 total amount of erosion for each applicable policy period.
S.W.3d 452 (Tex. App.–Austin 2002), pet. for Relators objected to the interrogatory. Relators’ counsel
review granted, 47 Tex. Sup. Ct. J. 2 (October 3, subsequently moved to withdraw from the case due to
2003) [02-0843]. relators’ failure to pay fees and expenses. The trial court
This case involves interpretation of an automobile granted that motion. Plaintiff then filed an emergency
insurance policy and waiver of personal injury protection motion to compel the deposition of relators’ corporate
(PIP) and uninsured/underinsured motorist (UM) representatives most knowledgeable about relators’
coverage by a spouse not named in the policy insurance policies.
declarations. Margarita Sanchez applied for and The trial court signed an order compelling relators to
purchased automobile insurance in her husband’s name. produce for deposition a corporate representative with
Her name was listed on the application but not in the the most knowledge about: (a) “the extent to which
policy. Mrs. Sanchez rejected PIP and UM coverages insurance has been eroded or compromised, including but
by a written waiver as allowed by Texas law. Mr. not limited to the number of claims competing for the
Sanchez was injured when, while working underneath the coverage applicable to this lawsuit”; (b) “the effect, if
pickup truck, it was struck by an uninsured driver causing any, of any pending litigation that would effect [sic]
the pickup to collapse severing Mr. Sanchez’s spinal coverage in this case”; and (C) “information as to the
cord. The pickup was not covered under the automobile Self Insured Retention applicable to this case and if any
insurance policy, and the policy excluded coverage for insurance coverage is impaired in any way as a result of
injuries occuring while the insured is “occupying” an the Self Insured Retention.” The court of appeals denied
uncovered vehicle. The policy also excluded coverage mandamus relief, holding that by authorizing discovery of
for injuries sustained by a person “struck by” an the existence and contents of insuring agreements, Texas
uncovered auto. The issue in this case is whether the Rule of Civil Procedure 192.3(f) did not preclude further
PIP and UM waivers apply to Mr. Sanchez since he is discovery on insurance issues “should the facts of a
the person named in the policy, but not the person who particular case warrant such discovery.” The court of
executed the waiver. The Insurance Code provides that appeals noted that rule 192.3(f) provides for a certain
“any insured named in the policy” may reject PIP and minimum discovery level on insurance issues in keeping
UM coverage. The trial court granted summary with the rule that discovery of such information, while
judgment for Old American, holding that Mr. Sanchez typically not admissible, “is needed to determine
w as “occupying” an uncovered vehicle. The court of settlement and litigation strategy.” Carroll Cable Co. v.
appeals reversed holding that Mrs. Sanchez’s rejection Miller, 501 S.W.2d 299, 299 (Tex. 1973). The Supreme
was not valid, Mr. Sanchez was not “occupying” the
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Supreme Court Update Chapter 11
Court heard argument on this petition, but the case has tangible, such as removing dents or fixing parts, but does
since been abated due to relators’ bankruptcy. not connote compensation for the market’s perception
that a damaged but fully and adequately repaired vehicle
E. Policy/Cancellation has an intrinsic value less than that of a never-damaged
1. Ray Ins. Agency v. Jones, 92 S.W.3d 530 (Tex. car.
December 12, 2002) [02-0009].
The Supreme Court denied the petition for review in G. Policy/Coverage
this case but issued a per curiam opinion disapproving the 1. Old Am. County Mut. Fire Ins. Co. v. Sanchez, 81
court of appeals’ interpretation of Texas Insurance Code S.W.3d 452 (Tex. App.–Austin 2002), pet. for
article 21.49-2B subsection 4(I), which provides that an review granted, 47 Tex. Sup. Ct. J. 2 (October 3,
insurer may cancel a personal automobile insurance 2003) [02-0843].
policy if it has been in effect less than 60 days. The This case involves interpretation of an automobile
court of appeals stated that “Subsection (I) does not insurance policy and waiver of personal injury protection
allow an insurer to cancel for any reason other than listed (PIP) and uninsured/underinsured motorist (UM)
in the other subsections of § 4, and by implication would coverage by a spouse not named in the policy
prohibit cancellation after sixty days . . . .” The Court declarations. Margarita Sanchez applied for and
also disapproved the court of appeals’ employment of purchased automobile insurance in her husband’s name.
Texas Rule of Appellate Procedure 2 to suspend Texas Her name was listed on the application but not in the
Rule of Civil Procedure 94. policy. Mrs. Sanchez rejected PIP and UM coverages
by a written waiver as allowed by Texas law. Mr.
F. Policy/Compensation for Diminished Value of Sanchez was injured when, while working underneath the
Vehicle pickup truck, it was struck by an uninsured driver causing
1. Am. Mfr. Mut. Ins. Co. v. Schaefer S.W.3d , 47 the pickup to collapse severing Mr. Sanchez’s spinal
Tex. Sup. Ct. J. 40 (October 17, 2003) [02-0295]. cord. The pickup was not covered under the automobile
The issue in this class action is whether an insurer insurance policy, and the policy excluded coverage for
is obligated under the Texas Personal Auto Policy to injuries occuring while the insured is “occupying” an
compensate its insured for a vehicle’s diminished value uncovered vehicle. The policy also excluded coverage
after it has been repaired following an accident. In this for injuries sustained by a person “struck by” an
case, Schaefer claimed his truck was worth an estimated uncovered auto. The issue in this case is whether the
$2,600 less as a result of the accident, after repairs. The PIP and UM waivers apply to Mr. Sanchez since he is
trial court granted the insurance carrier’s motion for the person named in the policy, but not the person who
summary judgment, holding that the standard auto policy executed the waiver. The Insurance Code provides that
does not cover the diminished value of the covered auto “any insured named in the policy” may reject PIP and
as a matter of law. The court of appeals reversed and UM coverage. The trial court granted summary
remanded, concluding that diminished value is a covered judgment for Old American, holding that Mr. Sanchez
loss under a first party insurance claim under the was “occupying” an uncovered vehicle. The court of
standard automobile policy. The Supreme Court granted appeals reversed holding that Mrs. Sanchez’s rejection
the insurer’s petition for review and heard oral argument was not valid, Mr. Sanchez was not “occupying” the
on February 19, 2003. vehicle, and he was not “struck by” the pickup. The
The Supreme Court held that the policy’s plain Supreme Court granted Old American’s petition for
language is unambiguous and does not require payment review and heard argument on December 10, 2003.
for diminished value when a vehicle has been fully and
adequately repaired. A vehicle’s diminished value may 2. Progressive County Mut. Ins. Co. v. Sink, 107
be a “direct loss” under the policy’s insuring provision, S.W.3d 547 (Tex. May 15, 2003) [01-0534].
the Court said, but the company’s obligation to The issue is whether a car taken by an insured
compensate the insured for that loss is circumscribed by driver without the owner’s permission is a “temporary
the polic y’s “Limit of Liability” section. That section substitute vehicle” covered under the insurance policy
states, in pertinent part, that the insurer’s liability for loss when the insured driver’s own vehicle is not working.
is limited to the damaged vehicle’s “actual cash value” or Sink sued Progressive over its refusal to pay his damages
the amount needed “to repair or replace” the vehicle, from an accident involving Progressive’s insured. The
whichever is less. The Court explained that the concept parties stipulated at trial that the insured driver, who was
of “repair” with regard to a vehicle connotes something not a party to the trial, was driving his employer’s car
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Supreme Court Update Chapter 11
without permission to get tools to repair his disabled H. Reimbursement for Claims Paid but Not
truck. The insured’s standard liability policy excluded Covered
coverage for a vehicle used “without a reasonable belief 1. Excess Underwriters at Lloyd’s v. Frank’s Casing
that that person is entitled to do so,” but provided an Crew & Rental Tools, Inc., 93 S.W.3d 178 (Tex.
exception to the exclusion for a “temporary substitute App.–Houston [14th Dist.] 2002), pet. for review
vehicle” when a covered auto needed repair. The trial granted, 46 Tex. Sup. Ct. J. 546 (April 3, 2003)
court decided against Sink. The court of appeals [02-0730].
reversed. This case involves an excess insurance carrier’s suit
The Supreme Court reversed the court of appeals’ for reimbursement from its insured for payment of a
judgment and rendered judgment in Progressive’s favor, third-party settlement that was later adjudicated to be a
holding that Texas’s standard personal auto policy does claim not covered by the insurance policy. Excess
not include in its definition of temporary substitute vehicle Underwriters, the excess insurer, agreed to pay a $7.5
a vehicle taken without the owner’s permission or at least million settlement at the request of its insured, Frank’s,
a reasonable belief that the owner consented. but issued a reservation of rights letter to seek
In dissent, Chief Justice Phillips, joined by Justices reimbursement if no coverage was found in a separate
O’Neill and Schneider, argued that the plain terms of the declaratory action. No such right to reimbursement was
policy provide coverage. included in the insurance policy. Excess Underwriters
and Frank’s both moved for summary judgment on the
3. Tex. Farm Bureau Mut. Ins. Co. v. Sturrock, 65 issue of whether Excess Underwriters was entitled to
S.W.3d 763 (Tex. App.–Beaumont 2001), pet. for reimbursement. The trial court held that there was no
review granted, 46 Tex. Sup. Ct. J. 481 (March 6, coverage and initially granted Excess Underwriters’
2003) [02-0069]. motion for summary judgment on its reimbursement
The issue in this case is whether a personal injury claim. The trial court then granted Frank’s motion for
protection insurance policy covering motor vehicle rehearing in light of Texas Association of Counties
accidents requires a collision or near collision between County Government Risk Management Pool v.
the insured’s vehicle and another vehicle, object, or Matagorda County, 52 S.W.3d 128 (Tex. 2000), denied
person, or whether an injury arising out of the use of the Excess Underwriters’ motion, and granted Frank’s
vehicle alone is sufficient to require insurance benefits to motion for summary judgment, holding that Excess
be paid. Texas Farm Bureau Mutual Insurance Underwriters had no right to reimbursement under Texas
Company (TFB) insured Jeff Sturrock’s Dodge pick-up law. The court of appeals affirmed. The Supreme Court
truck under a standard auto policy, which included $5,000 granted Excess Underwriters’ petition for review to
worth of personal injury protection coverage for bodily determine: (1) whether an excess insurer is entitled to
injury resulting from a motor vehicle accident and reimbursement from its insured for a settlement paid but
sustained by a covered person. While exiting his parked not covered under the policy, and (2) whether Texas or
car, Sturrock caught his left foot on a raised portion of Louisiana law should apply to the reimbursement claim.
the car door, slipped, and then caught himself. Although The Supreme Court heard argument in this case on
there was no impact between any portion of his body and September 24, 2003.
the truck, the incident resulted in injury to Sturrock’s
neck, shoulder, and upper back. Sturrock filed a claim XXIV. INTENTIONAL TORTS
for personal injury protection benefits with TFB, which A. Business Disparagement
denied his claim on the ground that his injuries did not 1. Forbes Inc. v. Granada Biosciences Inc., S.W.3d
result from a motor vehicle accident. Sturrock then sued , Tex. Sup. Ct. J. (December 19, 2003) [01-
TFB alleging breach of contract. The trial court 0788].
rendered judgment for Sturrock, holding that his injuries In this business disparagement case, two publicly
resulted from a motor vehicle accident within the held companies sued Forbes over an article on the parent
meaning of the insurance policy as a matter of law. The company’s chairman and the parent company’s troubled
court of appeals affirmed. The Supreme Court granted finances. The subsidiaries claimed that stock prices in
TFB’s petition for review to clarify the proper definition both companies fell and that credit to each evaporated
of motor vehicle accident and heard argument on April after the article’s publication. They alleged actual malice
16, 2003. based in part on an error pointed out to the author, who
assured the companies that the error could be corrected
but who gave that assurance after the magazine had
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already been printed and distributed. The trial court trial court granted partial summary judgment in favor of
granted summary judgment for the magazine, but the ISC on the Bank’s affirmative defenses and denied the
court of appeals reversed. The principal issue on appeal Bank’s motion to join the employee, her husband, and the
was whether the plaintiff companies offered evidence CFO under the proportionate responsibility statute. The
that Forbes acted with actual malice by knowingly trial court also granted summary judgment in favor of
publishing false statements about the companies. ISC on liability for conversion and actual damages claims
The Supreme Court held that the companies did not but refused to allow ISC to recover exemplary damages
offer sufficient evidence to show Forbes acted with from the Bank. The court of appeals affirmed the trial
actual malice. In so holding, the Court stated that the court’s judgment. The Supreme Court heard oral
actual malice inquiry focuses on the defendant's state of argument in this cause on November 5, 2003.
mind at the time of publication and observed that the
article was printed and in distribution before the writer C. Infliction of Emotional Injury
assured the chairman that mistakes would be corrected. 1. Tiller v. McLure, S.W.3d , 46 Tex. Sup. Ct. J.
The Court further said that the court of appeals erred in 632 (May 8, 2003) [02-0136].
applying the “single publication” rule’s definition of when The issue is whether repeated complaints by a
a defamatory statement is published (on the last day of customer to a contractor’s wife about work performance
the mass distribution of copies of the printed matter) during a time when the contractor was dying is legally
because that definition applies only for statute of sufficient evidence of intentional infliction of emotional
limitations purposes and does not bear on whether the distress. In this case Tiller, who contracted with Barbara
publisher acted with malice. The Court likewise held that McLure’s company for construction of self-storage units
Forbes’s use of the name “Granada” as a generic on Tiller’s property, complained to McLure after she
reference for the parent company at best established that wrote Tiller to assure him the project would be completed
the magazine was guilty of using imprecise language, but on time despite her husband’s illness. When McLure,
by itself, was not evidence that the magazine either through her son, then informed Tiller that the construction
entertained serious doubts as to the truth of statements in site would be closed for her husband’s funeral, Tiller
the article or had a high degree of awareness of their threatened to terminate the contracts, claiming the project
falsity. was behind schedule. Tiller called McLure at home as
many as 60 times, often at night and weekends, from the
B. Conversion/Proportionate Responsibility time her husband became ill to the time the project ended
Statute and then refused to make a final $37,000 payment. On
1. Southwest Bank v. Info. Support Concepts, Inc., 85 her emotional-distress claim, a jury found for McLure,
S.W.3d 462 (Tex. App.–Fort Worth 2002), pet. for but the trial court rendered a judgment for Tiller
review granted, 46 Tex. Sup. Ct. J. 1058 (August notwithstanding the verdict. The court of appeals
28, 2003) [02-0946]. reversed.
The issue in this case is whether the proportionate The Supreme Court reversed the court of appeals’
responsibility statute applies to an action for conversion judgment and rendered judgment, holding that Tiller’s
against a bank under section 3.420 of the Uniform conduct, often callous and insensitive, never involved
Commercial Code. In this case, an employee of threats unrelated to the contract (for which, as a
Information Support Concepts (“ISC”) stole over corporate officer, McClure was a designated contact) or
$300,000 in checks made payable to ISC and deposited severe verbal abuse. Tiller’s persistent calling was never
them into her personal account at Southwest Bank. excessive on any one day and his complaints and threats
Although none of the stolen checks bore ISC’s were related to an ordinary, albeit contentious,
endorsement, and ISC did not have an account with the commercial contract dispute. Thus, the conduct did not
Bank, the Bank accepted her deposits and obtained rise to the level of extreme and outrageous conduct.
payment on the checks. ISC sued the Bank under the
Uniform Commercial Code, T EX . BUSINESS & 2. Hoffman-LaRoche, Inc. v. Zeltwanger, 69 S.W.3d
COMMERCE CODE § 3.420, for conversion. The Bank 634, (Tex. App.–Corpus Christi 2002), pet. for
raised several affirmative defenses, including contributory review granted, 46 Tex. Sup. Ct. J. 68 (October 31,
negligence, assumption of risk, and failure to mitigate 2002) [02-0120].
damages, and sought to join the employee, her husband, The principal issue is whether the Texas
and the chief financial officer of ISC as responsible third Commission on Human Rights Act preempts a claim for
parties under the proportionate responsibility statute. The intentional infliction of emotional distress in a sexual
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harassment and retaliatory discharge lawsuit. Based on 2. First Valley Bank v. Martin, 55 S.W.3d 172 (Tex.
favorable jury findings, the trial court awarded App.–Corpus Christi 2001), pet. for review
Zeltwanger damages against Hoffman-LaRoche as granted, 47 Tex. Sup. Ct. J. 127 (Dec. 12, 2003)
follows: (1) sexual harassment–$347,036 for back pay, [01-0910].
$500,000 in front pay, plus prejudgment interest; (2) The iss ue in this malicious prosecution case is
intentional infliction of emotional distress–$1 million for whether the defendant “procured” the underlying
mental anguish and $23,000 for past medical expenses, prosecution by failing to disclose material information to
plus prejudgment interest on both. The trial court also law enforcement officials. Sam Martin had two loans
awarded $50,000 for future medical expenses, plus from First Valley Bank in Los Fresnos that were partially
$8,000 in exemplary damages. The trial court also secured by cattle he owned. Martin made several
awarded Zeltwanger damages against Webber, payments on the loans, but eventually defaulted on them
Zeltwanger’s supervisor at Hoffman-LaRoche, for soon after taking a job outside the state. In an attempt to
intentional infliction of emotional distress as follows: satisfy a portion of the loans’ balance, the Bank sold
$30,000 for mental anguish, plus prejudgment interest, some of Martin’s cattle. After unsuccessfully attempting
and $7,500 exemplary damages. The trial court also to reach an agreement with Martin for repayment of the
rendered a take nothing judgment against Zeltwanger on balance on the loans, the Bank contacted an investigator
her claim against Hoffman-LaRoche for retaliatory with the Cameron County sheriff’s office and complained
discharge, and rendered a take nothing judgment as to all that it could not find Martin or the cattle securing the
claims brought by Hoffman-LaRoche and Webber. The note. An investigator working with the sheriff’s office
court of appeals affirmed, rejecting Hoffman-LaRoche’s prepared a report for the district attorney’s office.
arguments that it could not be held liable for intentional Several months later and without testimony from the
infliction of emotional distress for Webber’s conduct. Bank or the investigator, Martin was indicted by the
The Supreme Court granted Hoffman-LaRoche’s petition grand jury for hindering a secured creditor, a third degree
for review and heard argument on February 5, 2003. felony. The indictment was eventually dismissed, and
Martin has not been reindicted.
D. Malicious Prosecution/Causation Martin sued the Bank for malicious prosecution and
1. King v. Graham S.W.3d , 47 Tex. Sup. Ct. J. 85 fraud, alleging that it forwarded false and misleading
(November 7, 2003) [01-0171]. information to the district attorney’s office, leading to his
The issue is whether false information provided for indictment–namely, that the Bank told the investigator
a prosecution, by itself, is sufficient to maintain a that it could not locate any of the cattle serving as
malicious-prosecution action. In this case, Graham and collateral on the loans. The trial court entered judgment
Wren sued partners in a hunting venture who made on the jury’s verdict for $18,089,095, including damages
accusations to Kerr County officials that Graham and for mental anguish, fraud, injury to reputation and credit
Wren, hired by the hunting venture to be guides, reputation, lost earning capacity, as well as punitive
committed theft and criminal fraud. A grand jury had damages. The court of appeals reversed and rendered
indicted them, but the prosecutor later dismissed the judgment on Martin’s claims for fraud and injury to credit
charges. A jury found for Graham and Wren and a reputation, modified the punitive damages award pursuant
divided court of appeals, sitting en banc, affirmed. to Section 41.008 of the Texas Civil Practice and
The Supreme Court cited Browning-Ferris Remedies Code, and affirmed the remainder of the
Industries Inc. v. Lieck, 881 S.W.2d 288 (Tex. 1994), as judgment.
requiring proof that the prosecutor acted based on the The Supreme Court will hear argument in this case
false information and that but for such false information on January 28, 2004.
the decision to prosecute would not have been made.
The Court held that nothing in the record of this case E. Nuisance
showed that the false information was material to the 1. Holubec v. Brandenberger, 111 S.W.3d 32 (Tex.
decision to prosecute Graham and Wren. May 22, 2003) [01-1214].
The principal issue in this nuisance lawsuit against
feedlot operators is whether the Holubecs established a
defense based on when the feedlot began operation or
when the effects of it began to be known.
Brandenberger, who lived on property adjacent to the
Holubecs’ farm, sued over flies, odors, noise and night
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lighting after the Holubecs built an enclosed feedlot near F. Tortious Interference with Contract/Damages
the Brandenberger house. The Holubecs had pastured 1. Tana Oil & Gas Corp. v. McCall, 104 S.W.3d 80
sheep on their property for years before constructing an (Tex. February 13, 2003) [01-1181].
enclosed feedlot in March 1997. Brandenberger sued in The issue in this case is whether one who tortiously
July 1998. The Holubecs argued that Texas Agriculture interferes with the relationship between an attorney and
Code section 251.004(a) (the Right to Farm Act) bars his client by suing them in the same action can be liable
nuisance suits filed more than a year after an agricultural to the attorney for the value of the attorney’s time and
operation begins, not when the effects are known. The the expenses he incurred in defending himself. Here, the
trial court ruled against the Holubecs and ordered them McCalls represented a client who sued Tana in Fayette
to abandon the feedlot and remove fencing, pens and County in a mineral lease dispute. Several weeks later
lights. The court of appeals affirmed. Tana sued the McCalls and their client in Nueces
The Supreme Court reversed and remanded, holding County, alleging the Fayette County lawsuit was based
that the one-year ban on nuisance actions is a statute of on claims that were previously settled. The McCalls then
repose, not a statute of limitations. According to the sued Tana in Travis County, alleging tortious interference
Court, section 251.004(a) was intended to bar a nuisance with their attorney-client relationship and seeking to
suit one year after commencement of the conditions or recover for the value of the time and expenses they
circumstances providing the basis for the suit. incurred in defending themselves in Nueces County.
The Travis County trial court granted Tana a directed
2. Schneider Nat’l Carriers, Inc. v. Bates, 95 S.W.3d verdict before the McCalls had presented their case.
309 (Tex. App.–Houston [1st] 2002), pet. for The court of appeals reversed.
review granted, 47 Tex. Sup. Ct. J. 105 (November The Supreme Court reversed and rendered
21, 2003) [03-0236]. judgment in favor of Tana, holding that a causal
The principal issues in this case are: (1) whether air relationship did not exist between the tortious
and noise pollution allegedly produced by Houston Ship interference the McCalls alleged and the only damages
Channel industrial facilities is a permanent or temporary they claimed–the value of the time they spent defending
nuisance; (2) whether the continuing tort doctrine applies themselves in the Nueces County lawsuit. Such
to the alleged nuisance; and (3) whether the trial court damages could not have been caused by Tana’s
abused its discretion in denying a motion for continuance interference with their legal representation in the Fayette
of the underlying summary judgment hearing. Andrea County suit anymore than if they’d been sued by an
Bates and seventy-eight other individuals residing near unrelated party. The Court emphasized that the McCalls
the Houston Ship Channel sued Schneider National did not merely fail to plead a viable damage claim; rather
Carriers, Inc. and several other operators of industrial they affirmatively limited their claim to damages they
facilities near the plaintiffs’ homes. The plaintiffs allege could not recover as a matter of law. As a result, the
that they and their personal and real property have been trial court did not err in dismissing the case. Although the
adversely affected by air contaminants, light pollution, McCalls argued that Tana’s suit against them was purely
and noise from the defendants’ facilities. The plaintiffs tactical and without merit, the Court said they failed to
filed various affidavits in support of their claims, but the explain why their remedies of sanctions under Rule 13 of
defendants argued in a partial motion for summary the Texas Rules of Civil Procedure and chapter 10 of the
judgment that the nuisance claim is time barred because Texas Civil Practice and Remedies Code were
the affidavits conclusively establish that the alleged inadequate or why they had not moved the court in
nuisance is permanent. The trial court granted the Nueces County to sanction Tana. The Court observed
defendants’ partial summary judgment on limitations, but that it was not that the McCalls were without a remedy
the court of appeals reversed and remanded, holding that for the wrong they alleged; it was that the remedy they
fact issues exist as to whether the alleged nuisance is pursued was not open to them.
temporary or permanent.
The Supreme Court will hear argument in this case 2. Latch v. Gratty, Inc., 107 S.W.3d 543 (Tex.
on January 28, 2004. February 27, 2003) [01-0773].
The issue was whether a corporate president
tortiously interfered with a contract with one company by
signing a second contract with another company to sell
the same assets. The Supreme Court held that there was
no evidence of tortious interference because, as a matter
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of law, the corporate president was not a stranger to the commonality and predominance. State Farm also
contract. The mere fact that the president signed the complains that the court of appeals’ statement that a
second agreement without indicating his agency was no “trial plan” is not required in all class certification orders
evidence that he acted individually. Because no evidence conflicts with Bernal.
existed in the record that the president was not acting as The Supreme Court concluded that the court of
an agent for the company selling the franchise and appeals’ opinion was not so narrow in its analysis and the
assets, the company that originally agreed to buy the court of appeals’ statement about a trial plan that was
franchise and assets could not recover unless it could dicta could not support conflicts jurisdiction. This opinion,
show that the president acted “so contrary to the however, was withdrawn when State Farm’s petition
corporation’s interests that his or her actions could only was granted on rehearing. The cause has not yet been
have been motivated by personal interest.” The trial set for oral argument.
court did not find, and no evidence existed in the record
that showed, that the president was acting against the C. Conflicts Jurisdiction/Prior Supreme Court
principal’s interests. The complaining party also did not Opinions
produce evidence that the president’s company 1. Tex. Dep’t of Parks & Wildlife v. Miranda, 55
complained of his conduct. S.W.3d 648 (Tex. App.–San Antonio 2001), pet. for
review granted on reh’g, 45 Tex. Sup. Ct. J. 999
XXV. JURISDICTION (July 3, 2002) [01-0619].
A. Adequate Appellate Remedy/Interference with The issue is whether the trial court should have
Jurisdiction considered evidence beyond the pleadings before denying
1. In re Houston Northwest Partners, Ltd. [03-0252], the State’s plea to the jurisdiction based on governmental
98 S.W.3d 777 (Tex. App.–Austin 2003), argument immunity and the Mirandas’ alleged failure to show the
granted on pet. for writ of mandamus, 46 Tex. state’s gross negligence under the Recreational Use
Sup. Ct. J. 1124 (September 11, 2003), and Statute. The Mirandas sued the State after Maria
consolidated for oral argument with Gonzalez v. Miranda suffered severe injuries when a pecan branch
Reliant Energy, Inc. [03-0469 & 03-0470], 102 fell on her head at a Garner State Park campsite. They
S.W.3d 868 (Tex. App.–Houston [1st Dist.] 2003). alleged the tree posed a danger that the department
The principal issue in these cases is whether a recognized but failed to fix and about which it consciously
statutory probate court can transfer to itself a wrongful and deliberately failed to warn them. The State
death or personal injury case from a district court in responded that the Mirandas’ claim was controlled by the
another county where venue has been properly Recreational Use Statute because they raised a premises
established. In the Gonzalez actions, the issue is Texas defect at a campground. The State argues that, under
Probate Code section 5B (estate administration). In the statute, the Mirandas had to prove the department
Houston Northwest Partners the issue concerns was grossly negligent, but they could not do so based on
Probate Code section 608 (guardianship). The Supreme State park employees’ testimony that the tree was in
Court heard argument in these cases on November 19, good health and showed no indication that a branch was
2003. ready to drop. The court of appeals affirmed the trial
court’s denial of the state’s jurisdictional plea. The court
B. Conflicts Jurisdiction/Dicta in Court of reasoned that the trial court could not delve into the
Appeals’ Opinion substance of the Mirandas’ claims because the State did
1. State Farm Mut. Auto. Ins. Co. v. Lopez, S.W.3d not specifically allege the Mirandas’ pleadings were a
, 46 Tex. Sup. Ct. J. 129 (October 31, 2002), pet. sham to wrongfully obtain jurisdiction. The State argues
for review granted on reh’g and prior opinion that the Supreme Court has jurisdiction to hear this case
withdrawn, 46 Tex. Sup. Ct. J. 129 (May 8, 2003) because the court of appeals’ decision conflicts with prior
[01-0540]. Supreme Court decisions. The Supreme Court granted
The threshold issue in this case is whether the court the State’s petition for review and heard argument on
of appeals’ opinion reviewing a class certification order October 30, 2002.
in the underlying lawsuit conflicts with Southwestern
Refining Co. v. Bernal, 22 S.W.3d 425 (Tex. 2000).
State Farm asserts that Bernal requires rigorous analysis
of all the prerequisites to class certification, but that the
court of appeals held that rigorous analysis was limited to
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D. Enforcement of Prior Judgment claims, and spoke separately of the commencement of a
1. In re Crow-Billingsley Air Park Ltd., 98 S.W.3d 178 claim and the commencement of an action on a claim.
(Tex. February 13, 2003) [02-0311]. The Court concluded that, because nothing in the
The issue in this mandamus proceeding is whether statute provided that a claim against a defendant would
the trial court had jurisdiction to enforce its prior relate back to an earlier time when a claim was made or
judgment involving a disputed zoning committee election action filed against another defendant, there was no
when the judgment had not been superseded and an reason for allowing such a relation back, absent a
appeal was pending. The trial court granted a motion to showing of misnomer or misidentification under existing
dismiss an action to enforce the judgment for want of case law. To allow otherwise would undermine the
jurisdiction, but the Supreme Court held that the trial purpose of the statute, which was to reduce asbestos
court had jurisdiction to hear the motion to enforce the claims by nonresidents. The Court also rejected
judgment, despite the appeal, and abused its discretion plaintiffs’ contention that a trial began in these cases
when it refused to do so. before May 29, 1997, based on a severed action that
went to trial before that date because a severed action
E. Personal Jurisdiction/Non-Residents/Civil becomes a different action. Finally, the Court refused to
Practice & Remedies Code section 71.052 preclude plaintiffs from making the elections to abate or
1. In re E.I. DuPont de Nemours & Co., 92 S.W.3d limit damages authorized under section 71.052(C) or
517 (Tex. December 5, 2002) [01-0066]. seeking severance of any claims for which Texas would
This case involves the construction and application be the most appropriate forum, reasoning that plaintiffs
of section 71.052(C) of the Texas Civil Practice & should not be punished for making their unsuccessful
Remedies Code. Some 8,000 plaintiffs in five related arguments that section 71.052 was not applicable to their
cases pending in two trial courts in Orange County and claims.
Jefferson County brought their original suits for damages
from exposure to asbestos at some point before August XXVI. JUVENILE DELIQUENCY
1, 1995, but added relator and others as defendants after A. Modification of Disposition Order
that date. None of these four cases have gone to trial, 1. In re J.P., 2003 Tex. App. LEXIS 618 (Tex.
though a few of the plaintiffs had been severed into a App.–Fort Worth Jan. 23, 2003), pet. for review
new case that was tried in January 1997, and remained granted, Tex. Sup. Ct. J. (December 12, 2003)
pending in the trial court awaiting judgment. In the four [03-0266].
other cases, Relator moved to dismiss the plaintiffs’ The issue in this juvenile deliquency proceeding is
claims against it under TEX. CIV. PRAC. & REM . CODE whether a trial court must comply with the requirements
§ 71.052 on the grounds that the claims against it (1) in section 54.04(i)(1)(A), (B) and (C) of the Texas
were commenced after August 1, 1995 and (2) arose Family Code before modifying a prior disposition order to
outside Texas at a time when plaintiffs were not commit a juvenile to the Texas Youth Commission for an
residents of this State. The trial courts denied the indeterminate period of time. Under the Texas Family
respective motions, and the CA denied mandamus relief. Code, before a trial judge may commit a juvenile to the
The Supreme Court, in an original mandamus proceeding, Texas Youth Commission, the judge must find three
conditionally granted relief. things : (1) it is in the child’s best interests to be placed
The dispute in the Supreme Court focused solely on outside the child’s home; (2) reasonable efforts were
the construction of section 71.052(C) and the effective made to prevent or eliminate the need for the child’s
date of the statute. Plaintiffs had argued that their claims removal from the home and to make it possible for the
against DuPont were commenced in this state before child to return to the child’s home; and (3) the child, in
August 1, 1995, the effective date of section 71.052(C), the child’s home, cannot be provided the quality of care
even though DuPont was not named as a defendant until and level of support and supervision that the child needs
1996, because their claims against DuPont related back to meet the conditions of probation. T EX. F AM . CODE
to when their lawsuits against other defendants were first ANN. § 54.04(i)(1)(A), (B) & (C). However, the
filed, which was before August 1, 1995. Plaintiffs also language of Section 54.05 of the Family Code, which
argued that section 71.052 did not apply because trial permits a trial court to modify its disposition, does not
began in a severed action before the statute’s effective contain the same requirements. The court of appeals
date. DuPont responded that section 71.052 held that section 54.04's requirements are not
distinguished “claims” from “actions,” referring to an prerequisites to a section 54.05 modification to commit a
“action on the claim[s],” and an action “involv[ing]” juvenile to the Texas Youth Commission.
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The Supreme Court granted review in this case and jurisdiction during an attorney’s entire suspension period.
will hear argument on February 4, 2004. Based on Rule 2.20, a board judgment revoking a
probated suspension cannot be superseded or stayed.
XXVII. MANDAMUS Incidental district court rulings, which include pleas to the
A. Adequate Appellate Remedy/Interference with jurisdiction, generally are not reviewable by mandamus
Jurisdiction because an adequate appellate remedy exists. But an
1. In re Houston Northwest Partners, Ltd. [03-0252], exception to the general rule arises when, like in this
98 S.W.3d 777 (Tex. App.–Austin 2003), argument case, one court renders an order that directly interferes
granted on pet. for writ of mandamus, 46 Tex. with another court’s jurisdiction. In such a situation, the
Sup. Ct. J. 1124 (September 11, 2003), and Court has determined that an ordinary appeal is
consolidated for oral argument with Gonzalez v. inadequate and mandamus relief is available.
Reliant Energy, Inc. [03-0469 & 03-0470], 102
S.W.3d 868 (Tex. App.–Houston [1st Dist.] 2003). XXVIII. MEDICAL MALPRACTICE
The principal issue in these cases is whether a A. Borrowed Employee/Joint Enterprise/Joint
statutory probate court can transfer to itself a wrongful Venture/Ratification and Mission
death or personal injury case from a district court in 1. St. Joseph Hosp. v. Wolff, 94 S.W.3d 513 (Tex.
another county where venue has been properly November 5, 2002) [99-1192].
established. In the Gonzalez actions, the issue is Texas The principal issue in this case is whether St. Joseph
Probate Code section 5B (estate administration). In Hospital in Houston could be held liable for medical
Houston Northwest Partners the issue concerns malpractice allegedly committed in part by a resident
Probate Code section 608 (guardianship). The Supreme doctor working in one of its programs in Austin. The
Court heard argument in these cases on November 19, doctor was in training at Austin’s Brackenridge Hospital
2003. in a surgery residency program sponsored by St. Joseph
and conducted by the Central Texas Medical Foundation.
B. Adequate Appellate Remedy/Jurisdictional Wolff’s parents alleged that the doctor’s negligence in
Interference treating their daughter after a car accident led to her
1. In re State Bar of Tex. [02-0293], consolidated permanent brain damage.
with In re State Bar of Tex. [02-0294], In re Bd. of The Supreme Court held that no evidence supported
Disciplinary Appeals [02-0343], and In re Bd. of the jury’s findings of joint enterprise, joint venture,
Disciplinary Appeals [02-0344], 113 S.W.3d 730 “mission” or non-employee respondeat superior, or
(Tex. July 3, 2003). ratification and that undisputed evidence proved as a
In this case, the Supreme Court considered whether matter of law that when the resident treated the patient
a party is entitled to mandamus relief when a trial court he was acting as the borrowed employee of the medical
voids a judgment by the Texas Board of Disciplinary institution supervising him–the Foundation.
Appeals suspending a lawyer from practicing law. The In concurrence, Justice O’Neill, joined by Chief
Supreme Court denied the lawyer’s petition to review the Justice Phillips, said the Court’s judgment was correct
Board of Disciplinary Appeals’ suspension order and but that she did not agree with all of the plurality’s
affirmed the judgment after the lawyer, on rehearing, analysis
brought a disqualification challenge to a board member Justice Enoch, joined by Justices Hankinson and
based on new facts. After the Court denied review, the Rodriguez, dissented, arguing that the Court’s reasoning
lawyer sued in district court to declare the suspension was “nonsense.” On the one hand, Justice Enoch
judgment void based on the disqualification iss ue. The observed, the plurality acknowledged that St. Joseph
trial court voided BODA’s suspension order. The State controlled what medical services its residents could
Bar of Texas and BODA sought mandamus relief perform, but then concluded that St. Joseph didn’t control
directly from the Supreme Court, arguing that the trial those very same medical services. Justice Enoch
court interfered with BODA’s continuing jurisdiction over asserted that the jury could find from the extensive
the lawyer’s suspension and litigated an issue already record that the resident worked for both St. Joseph and
decided by the Court. the Foundation.
The Supreme Court conditionally granted mandamus
relief, holding that the district court interfered with
BODA’s jurisdiction. Texas Rule of Disciplinary
Procedure 2.20 establishes that BODA retains
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B. Expert Preliminary Report/Timely CIV. STATS. ANN. art. 4590i, § 13.01(e)) when he did not
Filing/Extension object to the plaintiff’s expert reports as inadequate for
1. Walker v. Gutierrez, 111 S.W.3d 56 (Tex. June 19, over 600 days after they were filed, engaged in
2003) [01-0841]. discovery, filed a motion for summary judgment on other
In this case, the Supreme Court considered whether grounds and amended his answer to delete references to
the trial court abused its discretion by refusing to grant the plaintiff’s failure to follow statutory prerequisites to
medical-malpractice plaintiffs a 30-day grace period to suit. The trial court granted the defendant physician’s
file an expert report when a first expert report was filed motion to dismiss. A divided court of appeals reversed,
on time but was defective. Although the plaintiffs filed concluding that the physician had waived his statutory
their expert report within the statutory time limit, the right to dismissal.
defendants moved to dismiss the suit because the report The Supreme Court held that the physician did not
failed to address the requisite standard of care. Before waive his right to move for dismissal. Section 13.01
the hearing on the defendants’ motion, the plaintiffs imposed a deadline on the claimant to file an expert
asked for a 30-day grace period under the Medical report, but it did not, at that time, impose a deadline for a
Liability and Insurance Improvement Act, T EX. REV. health care provider to file a motion to dismiss. The
CIV. STATS. ANN. art. 4590i, § 13.01(g), which allows a Court said that the mere fact that the defendant waited
grace period if the failure to meet the deadline “was not to move for a section 13.01(e) dismissal was insufficient
intentional or the result of conscious indifference but was to establish waiver unless the defendant’s silence or
the result of an accident or mistake.” The trial court inaction showed an intent to yield the right to dismissal
denied the grace period request and dismissed the suit. based on the report’s insufficiency. To establish an
The court of appeals reversed. intent to waive the right to dismissal under section
The Supreme Court held that, when an expert report 13.01(e), the defendant’s silence or inaction must have
omits a required element under the Medical Liability and been inconsistent with the intent to rely upon the right to
Insurance Improvement Act, a purportedly mistaken dismissal.
belief that the report complied with the statute does not
negate a finding of intentional or conscious indifference. D. “Good Samaritan” Statute
A denial of a grace period under section 13.01(g) is 1. McIntyre v. Ramirez, 109 S.W.3d 741 (Tex. June
reviewed for abuse of discretion. Some mistakes of law 26, 2003) [01-1203].
can negate intentional conduct or conscious indifference. The principal issue is whether a doctor seeking
But in this case, the Court said the expert reports failed summary judgment on the affirmative defense that he
to address the standard of care or the manner in which acted as a “Good Samaritan” during an emergency
the standard was breached, both required by section childbirth must establish both (1) that he did not intend to
13.01(r)(6). Although the plaintiffs’ attorney testified charge for his services and (2) that he was not legally
that he believed the reports complied with the statute, entitled to payment for his services. In this case,
that testimony does not establish the “sufficient excuse” Ramirez sued Dr. McIntyre over neurological injuries her
necessary to find a mistake of law given the clear son allegedly sustained as a result of the doctor’s
statutory requirements to the contrary. The Court also manipulation of the newborn during a complicated birth.
held that the plaintiffs’ due process rights were not Dr. McIntyre was not Ramirez’s attending physician, but
violated even though they were not given notice that the he answered an emergency call when complications
expert reports did not comply with the law. According to developed during her labor and her attending physician
the Court, the Constitution does not require prior notice had left the labor-and-delivery area. In support of his
that the law is serious about a clearly stated consequence motion for summary judgment, Dr. McIntyre submitted
for failing to comply with its terms. evidence that he did not intend to charge for his services
when he responded to the emergency call and that it was
C. Expert Preliminary Report/Timely not customary to do so. The trial court granted summary
Filing/Waiver of Right to Dismissal judgment in his favor, but the court of appeals reversed,
1. Jernigan v. Langley, 111 S.W.3d 153 (Tex. July 3, holding that McIntyre had not established that he was not
2003) [02-0575]. “legally” entitled to payment for his services.
The issue in this medical malpractice case is The Supreme Court reversed, holding that a person
w hether the defendant physician waived the right to claiming the Good Samaritan defense need not establish
move for a dismissal with prejudice under the Medical that he or she is not “legally” entitled to remuneration.
Liability and Insurance Improvement Act (TEX. REV. Rather, the defendant must prove only that he or she
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would not ordinarily receive or ordinarily be entitled to The Supreme Court granted Dr. Binur’s petition for
receive payment under the circumstances. Because the review and heard oral argument on April 23, 2003.
summary judgment evidence conclusively established that
Dr. McIntyre satisfied these statutory requirements, the F. Medical Liability and Insurance Improvement
Court reversed the court of appeals’ judgment, but Act/“Health Care Liability Claims”
remanded the case to that court to consider Ramirez’s 1. Garland Cmty. Hosp. v. Rose, 87 S.W.3d 188 (Tex.
argument that Dr. McIntyre’s rendition of services came App.–Dallas 2002), pet. for review granted, 46
within a specific statutory exception to the Good Tex. Sup. Ct. J. 1058 (August 28, 2003) [02-0902].
Samaritan defense. T he issue in this case is whether negligent
credentialing claims against a hospital are “health care
E. Informed Consent or Misdiagnosis and liability claims” under article 4590i of the Medical
Negligent Treatment Liability and Insurance Improvement Act. The plaintiff
1. Binur v. Jacobo, 70 S.W.3d 330 (Tex. App.–Waco underwent various cosmetic surgery procedures
2002), pet. for review granted, 46 Tex. Sup. Ct. J. performed at Garland Community Hospital. She sued the
488 (March 6, 2003) [02-0405]. doctor, alleging that his negligence in performing the
The first issue in this case is whether Donna procedures caused her damages. She also sued the
Jacobo’s claim should be reviewed as an “informed hospital, claiming it was vicariously liable for the doctor’s
consent” claim or as an allegation of misdiagnosis and negligence as well as directly liable for its own
negligent treatment. The second issue is whether the negligence in granting, renewing, and continuing the
court of appeals properly reviewed Dr. Binur’s doctor’s staff privileges. The plaintiff timely filed an
no-evidence motion for summary judgment under the expert report and supplemental expert report pursuant to
traditional summary judgment standard. The final issue the Medical Liability and Insurance Improvement Act,
is whether Dr. Binur acted as Dr. Schmidt’s co-surgeon T EX. REV. CIV. STAT. art. 4590i, § 13.01, but the hospital
or assistant surgeon for Jacobo’s mastectomy procedure. moved to dismiss the negligent credentialing claims on the
Donna Jacobo sought medical attention because of ground that the expert reports were insufficient. The trial
her growing concerns that she could develop breast court granted the motion to dis miss and severed the
cancer based on a family history of breast cancer. Dr. claims against the doctor and the vicarious liability claims
Schmidt examined Jacobo’s mammogram and against the hospital into a separate action. The court of
determined it showed no presence of cancer, but he appeals reversed and remanded, holding that the
recommended that Jacobo undergo a “prophylactic negligent credentialing claims were not “health care
mastectomy,” a process designed to remove breasts as liability claims” governed by article 4590i and that Rose
a preventative measure. Dr. Schmidt referred Jacobo to therefore was not required to file an expert report. The
Dr. Binur, a plastic surgeon, to discuss the possibility of Supreme Court granted the hospital’s petition for review
plastic surgery to reconstruct the breast if she had the and heard argument on November 5, 2003.
mastectomy. After signing a consent form, Jacobo had
the prophylactic mastectomy and later underwent seven G. Negligence/Legal Cause
more surgeries to correct the unsuccessful reconstructive 1. IHS Cedars Treatment Ctr. of Desoto v. Mason,
procedures Dr. Binur performed. 2001 WL 915215 (Tex. App.–Dallas 2001), pet. for
Jacobo sued both Dr. Schmidt and Dr. Binur, review granted, 46 Tex. Sup. Ct. J. 69 (October 31,
alleging they failed to obtain her informed consent for the 2002) [01-0926].
mastectomy. With respect to Dr. Binur, Jacobo alleged The principal issues are whether a mental health
that he informed her that she would without question care facility and its nurse and doctors were negligent in
develop cancer in her breasts and that her decision to discharging Mason and another patient together, at their
have the procedure was based on Dr. Binur’s alleged request, and whether such negligence was a legal cause
comments. The trial court granted Dr. Schmidt’s motion of Mason’s injuries in a car accident involving both
for summary judgment, but Jacobo’s claim against Dr. patients two days after they left the hospital. The trial
Binur went to trial, resulting in a hung jury and a mistrial. court granted summary judgment in favor of the health
After the mistrial, Dr. Binur asserted both traditional and care providers. The court of appeals reversed in part,
no-evidence summary judgment motions. The trial court affirmed in part, and remanded the case for trial. The
granted Dr. Binur’s motion for summary judgment, but court of appeals held that the summary judgment
the court of appeals reversed. evidence raised fact issues about whether the health care
providers had breached duties of care to Mason. The
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court of appeals further held that Mason had alleged petitioned Boerne to include certain county roads within
sufficient facts to show probable cause and that Mason’s Boerne’s extraterritorial jurisdiction. By granting the
testimony regarding the mental state of the other patient petitions, Boerne extended its extraterritorial jurisdiction
at the time of the accident was admissible. The Supreme to include a patchwork of private property that land
Court granted Cedar Treatment Center’s petition for owners had requested be inside the city’s extraterritorial
review and heard oral argument on September 3, 2003. jurisdiction. Without inclusion of the county roads,
Boerne would not have met the state law requirement
H. Professional Association Liability that property included in an extraterritorial jurisdiction be
1. Battaglia v. Alexander, 93 S.W.3d 132 (Tex. contiguous. Boerne’s annexation of the subject roads
App.–Houston [14th Dist.] 2002), pet. for review blocked San Antonio from extending its extraterritorial
granted, 46 Tex. Sup. Ct. J. 781 (June 12, 2003) jurisdiction to include land that Boerne claimed. In
[02-0701]. Boerne’s suit against San Antonio, the trial court
The issues are (1) whether legally sufficient declared the contested land within Boerne’s
evidence supported a negligence finding against two extraterritorial jurisdiction. The court of appeals
anesthesiologists’ professional associations despite a affirmed.
failure to find either doctor negligent; (2) how to allocate The Supreme Court held that the Legislature, by
settlement credits between past and future damages giving counties “general control” over county roads,
absent an allocation in the settlement agreement and intended to limit the counties’ authority to providing safe
whether the trial court properly calculated prejudgment roads for public travel and did not expressly or impliedly
interest before applying the settlement credits; and confer power to petition a city to include county roads
(3) whether the professional associations are jointly and within its extraterritorial jurisdiction. Nor does a county,
severally liable for the judgment or vicariously liable for under a claim that it is the State’s agent as owner of the
each others’ negligence under a joint-venture theory. roads, have expressed or implied power to petition the
In this case, Mark Alexander was injured and city for annexation.
ultimately died after receiving anesthesia during a routine
out-patient surgery. His family sued TOPS Surgical XXX. NEGLIGENCE
Specialty Hospital, Drs. Carl Battaglia and Tommy Polk A. Duty of Care
and their respective professional associations, a nurse, 1. Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30
and Dr. Laverna Jane Crowder. Before trial, the hospital (Tex. October 31, 2002) [00-0889].
and the nurse settled with the Alexanders. The trial The Supreme Court considered in this case whether
court granted a directed verdict in favor of Dr. Polk. the operator of a home for the mentally retarded owed a
The jury found Dr. Battaglia was not negligent and duty of care to a murder victim killed by one of its
allocated liability between the nurse, Dr. Crowder, and residents. Dixon, living at a care home under a court
the two professional associations. The court of appeals order, killed the Peavys’ daughter when he tried to steal
affirmed, holding that (1) the evidence was sufficient to her car on a weekend pass to his mother’s home in
support the jury’s finding that the professional Houston. The Peavys claimed that Texas Home
associations were negligent; (2) the professional Management, the home operator, was negligent and
associations were jointly and severally liable under grossly negligent when it allowed Dixon’s unsupervised
proportionate liability statute; and (3) prejudgment interest Houston visit because of his criminal history. The trial
should be calculated on the amount of past damages. court granted summary judgment for Texas Home
The Supreme Court granted Battaglia’s petition for Management. The court of appeals reversed.
review and heard argument on October 15, 2003. The Supreme Court held that Texas Home
Management did not establish as a matter of law that it
XXIX. MUNICIPAL CORPORATIONS had no duty. The home operator argued that the State
A. Extraterritorial Jurisdiction/Annexation retained legal custody of Dixon and both federal and
1. City of San Antonio v. City of Boerne, 111 S.W.3d state regulations encouraged frequent visits to his
22 (Tex. June 26, 2003) [01-1054]. mother’s home in Houston. But those regulations did not
In this cases, the Supreme Court determined mandate such visits, which required authorization b y a
whether county commissioners can act for the State in mental retardation professional and a physician. The
petitioning a city to include county roads within the city’s Court said this case differs from Van Horn v.
extraterritorial jurisdiction. The dispute in this case arose Chambers, 970 S.W.2d 542 (Tex. 1998), in which the
when commissioners in Kendall and Comal counties Court found no special relationship to establish a right to
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control a patient to protect others. In this case, a right to B. Gross Negligence/Legal Sufficiency of
control arose from Texas Home Management’s contrac t Evidence
with the State. Dixon’s danger could be foreseen, based 1. Coastal Transp., Inc. v. Crown Cent. Petroleum
on his history of assaults, which were greater in previous Corp., 38 S.W.3d 180 (Tex. App.–Houston [14th
visits to Houston than at the home. The State could have Dist.] 2001), pet. for review granted, 45 Tex. Sup.
retained sufficient control over the details of the home’s Ct. J. 1145 (August 29, 2002) [01-0301].
operation to excuse the home’s duty, but the operator’s The issues in this case include: (1) whether an
summary-judgment evidence did not establish such objection to the introduction of expert testimony is
authority by either the State’s mental health agency or by necessary to challenge the legal sufficiency of that
the court that ordered his placement. testimony in a directed verdict; (2) what evidence is
Justice Owen concurred in the judgment but argued necessary to support a jury finding of gross negligence;
that the Court should have held that the duty Texas (3) what constitutes permanent injury to land; and (4)
Home Management owed to third parties such as the what the proper measure of damages for permanent
murder victim in this case was to report promptly to the injury to land is. A gasoline truck owned by Coastal
State’s mental health agency and appropriate law Transport overflowed while being filled at a bulk loading
enforcement authorities all pertinent facts about Dixon’s facility owned by Crown Central. A fire resulted,
violations of the law and any serious aggressive acts. If destroying Crown Central’s facility. Crown Central sued
the Peavys could demonstrate that State actors would Coastal Transport and another company for negligence
have taken actions that would have prevented their and gross negligence. The trial court rendered judgment
daughter’s murder, then the Peavys would have against Coastal Transport based on the jury’s findings,
established a cause of action. But to the extent that their but rendered a directed verdict against Crown Central as
claims rested on the failure of Texas Home Management to exemplary damages. Based on the jury’s finding that
or its agents to diagnose and treat Anthony Dixon’s the loading facility’s damage was “temporary,” the trial
violent proclivities properly, Justice Owen said, those court determined that Crown Central’s prior settlement
claims could not survive based on the Court’s decisions with another party was for a greater amount than its
in Thapar v. Zezulka, 994 S.W.2d 635 (Tex. 1999), Van damages. And because Coastal Transport made a prior
Horn v. Chambers, and Bird v. W.C.W., 868 S.W.2d written settlement credit election, the trial court rendered
767 (Tex. 1994). a take-nothing judgment against Crown Central. The
Justice Hecht dissented, arguing that the Court had court of appeals affirmed the finding of “temporary”
never before called something like Texas Home damages, but held that the directed verdict concerning
Management’s authority over Dixon “control.” Close to Coastal Transport’s alleged gross negligence was
the facts of this case, Justice Hecht observed, the Court improper. The court of appeals accordingly affirmed in
has held that a physician does not exercise such control part, reversed in part, and remanded the matter for
over a patient’s treatment as to render him liable to further proceedings. The Supreme Court granted Crown
hospital employees for the patient’s violence, nor does a Central’s and Coastal Transport’s petitions for review
psychiatrist exercise such control over a patient as to and heard argument on December 4, 2002.
render him liable for the patient’s murder of his
stepfather. C. Legal Cause
1. IHS Cedars Treatment Ctr. of Desoto v. Mason,
2. Speed Boat Leasing Inc. v. Elmer, S.W.3d , 2001 WL 915215 (Tex. App.–Houston [14th Dist.]
Tex. Sup. Ct. J. (December 19, 2003) [03-0037]. 2002), pet. for review granted, 46 Tex. Sup. Ct. J.
In this personal injury case, the issue is whether a 69 (October 31, 2002) [01-0926].
speedboat operator giving rides along South Padre Island The principal issues are whether a mental health
is a common carrier owing a higher standard of care to care facility and its nurse and doctors were negligent in
a 70-year-old woman injured during a thrill ride. The trial discharging Mason and another patient together, at their
court refused the plaintiff’s jury instruction that the request, and whether such negligence was a legal cause
operator owed her the standard of care common carriers of Mason’s injuries in a car accident involving both
owe passengers. patients two days after they left the hospital. The trial
The Supreme Court held that the speedboat ride was court granted summary judgment in favor of the health
entertainment, not transportation, and as a result, the care providers. The court of appeals reversed in part,
operator only owed the plaintiff the ordinary negligence affirmed in part, and remanded the case for trial. The
standard of care. court of appeals held that the summary judgment
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evidence raised fact issues about whether the health care E. Nursing Home Assault/Limitations/Health-
providers had breached duties of care to Mason. The Care Liability Claim
court of appeals further held that Mason had alleged 1. Diversicare Gen. Partner, Inc. v. Rubio, 82 S.W.3d
sufficient facts to show probable cause and that Mason’s 778 (Tex. App.–Corpus Christi 2002), pet. for
testimony regarding the mental state of the other patient review granted, 46 Tex. Sup. Ct. J. 528 (March 27,
at the time of the accident was admissible. The Supreme 2003) [02-0849].
Court granted Cedar Treatment Center’s petition for The issue is whether a nursing-home resident’s
review and heard argument on September 3, 2003. claim against the nursing home based on a sexual assault
by another resident is a claim against a health-care
D. Liability/Resuscitating Premature provider under T EX. REV. CIV. STAT. art. 4590i §
Infant/Parental Consent 1.03(a)(4). Maria Rubio, an 82-year-old Alzheimer’s
1. Miller v. HCA, Inc., 118 S.W.3d 758 (Tex. patient, allegedly suffered sexual abuse from a co-
September 30, 2003) [01-0079]. resident of her nursing home in 1995. Rubio and her
The narrow question presented in this case of first daughter (as next friend) brought suit against the nursing
impression is whether Texas law recognizes a claim by home in 1999. Diversicare asserted that the sexual-
parents for either battery or negligence against a hospital abuse claim was a health-care liability claim. Because
because the hospital allowed physicians to provide the statute of limitations for a health-care liability claim is
resuscitative medical treatment to their premature infant not tolled by the plaintiff’s legal disability, Diversicare
without their consent. In this case, approximately eleven asserted that the claim was time-barred and moved for
hours before the parents’ child was born four months summary judgment on that claim. The trial court granted
prematurely, the parents had given oral instructions that Diversicare’s motion for summary judgment on the
“heroic” measures should not be performed on their sexual-abuse claim, holding that it was a health-care
daughter. When the child was born alive but in distress, liability claim under T EX. REV. CIV. STAT. art. 4590i,
the treating physician provided life-sustaining medical § 1.03(a)(4) and was time-barred. The court of appeals
treatment. The child survived, but suffered from serious reversed, holding that the claim was for ordinary
disabilities, and the parents sued the hospital for battery negligence, not a health care-liability claim, so the statute
and negligence. The parents’ negligence claim was of limitations was tolled for the plaintiff’s legal disability.
premised on the hospital’s policies regarding treatment of The Supreme Court granted Diversicare’s petition
an infant without parental consent, not on any physician’s for review to determine whether Rubio’s sexual-abuse
negligence in treating the child. A jury found for the claim is a health-care liability claim. The Court heard
parents, but the court of appeals reversed, concluding argument on September 24, 2003.
that parents cannot refuse life-sustaining treatment for an
infant whose condition is not certifiably terminal. F. Premises Liability/Independent Contractor’s
The Supreme Court affirmed the court of appeals’ Negligence
judgment, but for different reasons. The Court noted that 1. Dow Chem. Co. v. Bright, 89 S.W.3d 602 (Tex.
there was no dispute that the infant could not be fully October 17, 2002) [99-0929].
evaluated for medical treatment until her birth. Thus, the The issue is whether Dow retained sufficient control
Court said, any decisions concerning the infant’s over a subcontractor’s work to impose a duty on the
treatment could not be fully informed decisions until that company (the premises owner) to protect an independent
time, and the evidence established that when the infant contractor’s employee from the contractor’s negligence.
was born, the physician attending the birth was faced Bright sued Dow after a pipe secured by a co-worker for
with emergent circumstances–i.e., the child might the independent contractor fell on him. Dow required its
survive with treatment but would likely die if treatment contractors to comply with its safety regulations and
was not provided before either parental consent or a hired a supervisor to oversee compliance. The
court order overriding the withholding of such consent supervisor had Dow’s authority to stop the contractor’s
could be obtained. The Court therefore held that the work for safety reasons and had responsibility for issuing
emergent circumstances in this case provided an safe work permits each morning before work began.
exception to the general rule imposing liability on a The trial court granted summary judgment for Dow, but
physician for treating a child without parental consent. the court of appeals reversed, concluding that a fact issue
The Court made it clear, however, that a doctor cannot existed about the extent of Dow’s “supervisory control.”
create emergent circumstances from his or her own The Supreme Court held that Dow did not owe a
delay or inaction. duty to Bright either because of a contractual right to
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control or actual control over the contractor’s work. By that he lacked actual knowledge of the dangerous
contract, the right of control must be (1) over the means, condition. Wal-Mart owed no duty to a licensee so long
methods or details of the independent contractor’s work, as the evidence conclusively established the licensee
(2) must relate to the injury the negligence causes and perceived the alleged dangerous condition. The court of
(3) must grant the contractor at least the power to direct appeals relied on the plumber’s testimony that he did not
the order in which the work is to be done. Dow’s notice the stairway was slippery until he was halfway up
contract with the independent contractor required it to the stairs and did not notice the boxes blocked the
comply with Dow’s safety rules and regulations in a handrail until he was on his way down. But the
safety manual, but the agreement did not delegate to plumber’s undisputed testimony was that he noticed,
Dow the right to control means, methods or details of the before he went up, that there were boxes along the sides
contractor’s work nor did it grant Dow the power to of the stairs and that some stairs were slippery, and he
direct the order in which work should be done. Dow’s also noticed, as he headed down the stairs, that boxes
actual control of the contractor’s work may subject Dow obstructed his handrail access. The plumber’s co-
to negligence liability, the Court said, but the control must worker’s corroborating testimony supported that
be more than a general right to recommend a safe conclusion. Because the evidence conclusively
manner of work and must be control relating to the injury established that the plumber had knowledge of the stairs’
the negligence causes. By requiring the contractor to dangerous condition, the trial court correctly rendered
comply with safety regulations, Dow owed the judgment notwithstanding the verdict.
contractor’s employees a narrow duty that its safety
requirements and procedures not unreasonably increas e H. Providing Alcohol
the probability and severity of injury. The summary- 1. F.F.P. Operating Partners L.P. v. Dueñez, 69
judgment evidence showed the contractor assigned S.W.3d 800 (Tex. App.–Corpus Christi 2002) , pet.
Bright his duties and Dow did not instruct him how to for review granted, 46 Tex. Sup. Ct. J. 245
perform his job and was not involved in how or when to (December 12, 2002) [02-0381].
secure the pipe that fell on him. Dow’s safe-work permit The principal issues are: (1) whether Texas Civil
system did not unreasonably increase the probability and Practice & Remedies Code chapter 33’s apportionment
severity of Bright’s injury and was not evidence that the of responsibility in tort cases applies to third-party claims
contractor and Bright were not free to do work in their brought under the Dram Shop Act (Texas Alcoholic
own way or that Dow controlled the work. Dow’s Beverage Code section 2.02) without an allegation that
safety representative did not approve how the pipe was the plaintiff was negligent; and (2) whether the trial court
secured or instruct Bright to perform his work knowing abused its discretion by severing the convenience store’s
of the dangerous condition. Dow was, therefore, entitled contribution claim against the drunken driver.
to summary judgment. Several members of a family suffered injuries after
being hit by a drunken driver. The family brought suit
G. Premises Liability/Knowledge of Danger under the Dram Shop Act against the convenience store
1. Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706 that sold alcohol to the intoxicated driver. The
(Tex. March 27, 2003) [01-1148]. convenience store brought a contribution claim against
The issue in this premises liability case is whether the driver. The trial court severed the contribution claim
there was some evidence to support the jury’s finding and granted a partial summary judgment to the plaintiffs,
that an injured plumber lacked actual knowledge of the holding that the proportionate responsibility act should not
dangerous condition that caused his injuries. In this case, apply in dram-shop cases. The court of appeals
a plumber sued after he fell on wet stairs stacked with affirmed, holding that the Dram Shop Act imposed
boxes. The plumber alleged that Wal-Mart failed to vicarious liability on the alcohol seller and that the
warn him about the stairs’ dangerous condition. The trial proportionate responsibility act is inapplicable to third-
court granted Wal-Mart’s motion for a judgment party dram shop actions in the absence of any allegation
notwithstanding the verdict. The court of appeals, in a that the plaintiffs themselves were negligent. The
divided decision en banc, reversed the trial court, holding Supreme Court granted F.F.P.’s petition for review and
that there was some evidence that the plumber lacked heard argument on March 5, 2003.
knowledge of the dangerous condition.
The Supreme Court held that Wal-Mart did not have
a duty to warn the plumber of the danger or to make
conditions safe because no evidence supported a finding
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I. Proximate Cause/Cause in Fact/Legal subsequent championship game. The City moved for
Sufficiency summary judgment, contending that it was not liable for
1. Marathon Corp. v. Pitzner, 106 S.W.3d 724 (Tex. negligence under the Recreational Use Statute. The
May 22, 2003) [01-0870]. statute at that time defined recreation as “an activity such
The issue in this personal injury case is whether as hunting, fishing, swimming, boating, camping,
there was legally suffic ient evidence that alleged picnicking, hiking, pleasure driving, nature study, cave
premises defects proximately caused the plaintiff’s exploration, and waterskiing and other water sports.”
injuries. Pitzner, an air-conditioning repairman, alleged he The Legislature in 1997 added “any other activity
s ustained severe injuries after falling off the ro o f o f a associated with enjoying nature or the outdoors” to the
building Marathon occupied as a tenant when he came list. The trial court granted summary judgment for the
into contact with electrical lines while servicing City. The court of appeals reversed.
Marathon’s air conditioning units, which Marathon The Supreme Court held that sitting on a swing is an
conceded did not comply with building code activity the Legislature intended to include as
requirements. There were no witnesses to the incident, “recreation” when it enacted the Recreational Use
and Pitzner had no recollection of how he sustained his Statute. The City, however, owed Torres the duty not to
injuries. The evidence showed that Pitzner was found injure her through willful, wanton, or grossly negligent
lying unconscious on the ground beside Marathon’s conduct, and because Torres did not plead any willful,
building with a burnt-tipped screwdriver beside him and wanton, or grossly negligent conduct, she could not
his ladder missing. He had not yet completed the repair recover from the City as a matter of law.
job on the air conditioning units. Marathon argued, Justice Hankinson dissented, arguing that the
among other things, that there was no evidence that the Court’s interpretation of “recreation” essentially wrote
alleged code violations caused Pitzner to sustain an out of the statute the definition of recreation and the
electrical shock and fall from the building. Marathon policy choices represented by that definition. Under the
argued that the evidence was equally consistent with Court’s interpretation of the Recreational Use Statute,
Pitzner having become dizzy or fainting from working on Justice Hankinson said, the fact that someone is outside
an asphalt roof in 90-plus-degree heat without water or when he or she is injured is the sole fact triggering that
having been the victim of a criminal assault. Jurors found statute’s limitation of liability on the part of the
for Pitzner, and the court of appeals affirmed. landowner. The Legislature did not, however, draft such
The Supreme Court reversed and rendered a broad exception to the traditional duties of care owed
judgment, holding that the evidence was legally entrants on land and instead circumscribed the limitation
insufficient to show proximate cause. The experts’ on liability by, among other things, defining “recreation”
opinions that Pitzner sustained an electrical shock and fell with a detailed list of activities. Justice Hankinson
off the roof because of premises defects piled argued that although that list is not exhaustive, it must
speculation on speculation and inference on inference have some meaning.
and, thus, did not constitute any evidence of causation.
Based on the evidence presented at trial, the jury could XXXI. NUISANCE
only speculate as to (1) whether Pitzner actually fell from A. Right to Farm Act
the roof; (2) whether he actually came into contact with 1. Holubec v. Brandenberger, 111 S.W.3d 32 (Tex.
a high-voltage wire on Marathon’s roof; and (3) whether May 22, 2003) [01-1214].
and how the alleged code violations were a substantial The principal issue in this nuisance lawsuit against
factor in causing Pitzner’s injuries. feedlot operators is whether the Holubecs established a
defense based on when the feedlot began operation or
J. Recreational Use Statute when the effects of it began to be known.
1. City of Bellmead v. Torres, 89 S.W.3d 611 (Tex. Brandenberger, who lived on property adjacent to the
November 5, 2002) [01-0299]. Holubecs’ farm, sued over flies, odors, noise and night
The issue is whether using playground equipment is lighting after the Holubecs built an enclosed feedlot near
“recreation” within the meaning of the Recreational Use the Brandenberger house. The Holubecs had pastured
Statute, which limits a landowner’s liability in certain sheep on their property for years before constructing an
circumstances. In this case, Torres, who had played in enclosed feedlot in March 1997. Brandenberger sued in
a softball tournament at a City-owned complex in 1996, July 1998. The Holubecs argued that Texas Agriculture
sued the City after she was injured when a swing in Code section 251.004(a) (the Right to Farm Act) bars
which she was sitting broke as she watched the nuisance suits filed more than a year after an agricultural
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operation begins, not when the effects are known. The reasonably obtainable.” As certified, the class included
trial court ruled against the Holubecs and ordered them some royalty owners whose leases calculated royalty
to abandon the feedlot and remove fencing, pens and payments on an amount-realized (or proceeds) basis and
lights. The court of appeals affirmed. other royalty owners whose leases calculated royalty
The Supreme Court reversed and remanded, holding payments based on current market value. Because a
that the one-year ban on nuisance actions is a statute of covenant to obtain the best price reasonably attainable is
repose, not a statute of limitations. According to the implied under Texas law only to proceeds leases, and not
Court, section 251.004(a) was intended to bar a nuisance to market-value leases, the Court concluded that the
suit one year after commencement of the conditions or royalty owners did not establish that there were
circumstances providing the basis for the suit. “questions of law or fact common to the class” sufficient
to support certification.
B. Temporary v. Permanent
1. Schneider Nat’l Carriers, Inc. v. Bates, 95 S.W.3d B. Lease Termination/Adverse Possession
309 (Tex. App.–Houston [1st] 2002), pet. for 1. Natural Gas Pipeline Co. of Am. v. Pool, 120
review granted, 47 Tex. Sup. Ct. J. 105 (November S.W.3d 317 (Tex. August 28, 2003) [01-0057 &
21, 2003) [03-0236]. 01-0058].
The principal issues in this case are: (1) whether air The principal issue in these consolidated cases is
and noise pollution allegedly produced by Houston Ship whether gas producers avoided automatic termination of
Channel industrial facilities is a permanent or temporary their leases by adverse possession after intermittent
nuisance; (2) whether the continuing tort doctrine applies production halts. The producers also argued that the
to the alleged nuisance; and (3) whether the trial court “temporary-cessation-of-production doctrine” saved the
abused its discretion in denying a motion for continuance leases from termination. In both cases, involving mineral
of the underlying summary judgment hearing. Andrea leases executed in the 1920s and 1930s, the trial court
Bates and seventy-eight other individuals residing near granted summary judgments terminating the leases.
the Houston Ship Channel sued Schneider National Texas Railroad Commission records showed production
Carriers, Inc. and several other operators of industrial ceased for one to six months at various times between
facilities near the plaintiffs’ homes. The plaintiffs allege 1941 and 1997. Each lease contained clauses stating that
that they and their personal and real property have been the lease would continue “so long as natural gas is
adversely affected by air contaminants, light pollution, produced.” Because production had stopped on several
and noise from the defendants’ facilities. The plaintiffs occasions, the lessees sued to terminate the leases. The
filed various affidavits in support of their claims, but the gas producers argued, as a defense, that the property
defendants argued in a partial motion for summary owners should be barred from suing to declare the leases
judgment that the nuisance claim is time barred because terminated because they waited too long to terminate
the affidavits conclusively establish that the alleged based on cessation of production. The court of appeals
nuisance is permanent. The trial court granted the affirmed the trial court’s summary judgment that the
defendants’ partial summary judgment on limitations, but leases terminated.
the court of appeals reversed and remanded, holding that The Supreme Court held that the producers
fact issues exist as to whether the alleged nuisance is established adverse possession. In these cases the
temporary or permanent. lessors asserted claims no earlier than 14 years in one
The Supreme Court heard argument in this case on case and no earlier than 29 in the other, a strong
January 28, 2004. circumstance tending to imply notice of adverse
possession, the Court said. The Court found
XXXII. OIL AND GAS uncontroverted evidence that the lessees had long
A. Implied Covenants continued possession that was “open, notorious,
1. Union Pac. Res. Group, Inc. v. Hankins, 111 exclusive, and inconsistent with the existence” of title to
S.W.3d 69 (Tex. July 3, 2003) [01-0836]. all minerals in the lessors after the leases allegedly
In this case, the Supreme Court determined whether terminated. The Court noted that holding over after an
a proposed class met the requirements for class oil and gas lease has expired differs from a surface
certification under Texas Rule of Civil Procedure 42. tenant who holds over with regard to what is open,
The trial court certified a class consisting of gas royalty notorious, exclusive and inconsistent because an oil and
owners in Crockett County who claimed that the lessees gas lessee that holds over continues to physically remove
breached an implied duty to “obtain the best current price and dispose of the very valuable, non-renewable minerals
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for its own account. The lessees’ continued production Supreme Court granted Ridge’s petition for review and
and sale of all oil and gas and their royalty payments on heard oral argument on April 2, 2003.
a relatively small percentage of the proceeds was open,
notorious and hostile for more than 10 years after the 2. Anadarko Petroleum Corp. v. Thompson, 94
lessors contended the leases terminated. Therefore, the S.W.3d 550 (Tex. July 3, 2002) [01-0261].
lessees acquired the same interest they adversely and T he principal issue is whether a gas lease
peaceably possessed–the interest defined by the original terminated when production ceased for more than 60
leases, on the same terms and conditions. days. The lease contained a habendum clause that stated
In dissent, Justice Jefferson argued that the Court’s the lease would last “as long as gas is or can be
resolution–that the lessees acquired by adverse produced” and another that allowed the lease to
possession the same interest they held under the terminate if production ceased and was not resumed
leases–was premature and introduced a new twist on within 60 days. Production ceased for 61 days in 1981
adverse possession law that, at least on its face, divests and for 91 days in 1985 while a pipeline was repaired.
a prior owner of property without the explicit notice The gas producers argued that the plain language of the
previously mandated. Justice Jefferson observed that habendum clause sustains the lease as long as production
both lessors and lessees proceeded as though the leases capability exists. The property owners argued instead
were still in effect, which is arguably a permissive and that the lease and Texas law required actual production
non-hostile possession. Moreover, the record in these to sustain the lease. The trial court declared the lease
cases suggests that production ceased temporarily so terminated. The court of appeals affirmed.
lessees and lessors could benefit from higher winter gas The Supreme Court held that a well that is capable
prices–an issue raising a jury question of whether a of production sustains the particular lease at issue even
temporary cessation that furthers the economic interests if actual production ceases longer than 60 days. The
of both sides was reasonable under the circumstances. habendum clause’s plain language showed that the
parties intended that a well actually produce gas, or that
C. Lease Termination/Cessation-of-Production it be capable of producing gas, to sustain the lease.
Doctrine The Court said this construction did not conflict with the
1. Ridge Oil Co. v. Guinn Invs., Inc., 73 S.W.3d 523 rule that Texas leases generally require actual
(Tex. App.–Fort Worth 2002), pet. for review production. Cases that recognized the general rule
granted, 46 Tex. Sup. Ct. J. 402 (January 16, 2003) involved leases with typical habendum clauses that
[02-0599]. sustained the lease as long as oil or gas “is produced.”
In this case, the issue is whether one of two lessees Reading the lease as a whole, the Court concluded that
under a two-tract mineral lease can terminate the entire the cessation-of-production clause combined a 60-day
lease by voluntarily ceasing production on its tract for a time limit with a resumption-of-operations provision. The
limited time period. In 1937, two separate but adjoining cessation-of-production clause only applied if a well
tracts of land were included in an oil and gas lease. The holding the lease ceased to be capable of producing
lessee of one tract is Guinn Investments, Inc.; the lessee gas.
of the other tract is Ridge Oil Company. When Guinn The Court denied Thompson’s motion for rehearing
refused to sell its leasehold interest to Ridge, Ridge but issued a per curiam opinion, clarifying that the original
turned off the electrical switches to two wells on Ridge’s opinion did not overrule or modify the longstanding
tract, causing oil production to cease. Ninety days later requirement that, for a well to produce in paying
Ridge turned the switches back on. Ridge asserted that quantities or to be capable of producing in paying
because there had been no production on the Guinn tract quantities, facilities must be near enough to the well that
for 47 years, and production on Ridge’s tract had stopped it would be economically feasible to establish a
for 90 days, the lack of production from both tracts connection so that produc tion could be marketed at a
terminated the 1937 lease as to both tracts. Guinn filed profit. The Court also said it did not intend to imply in the
suit against Ridge, seeking a declaration that the 1937 original opinion that the remedy for breach of an implied
lease had not been terminated. covenant to market production would be forfeiture or
The trial court denied Guinn’s motion for summary termination of a lease because the Court has consistently
judgment, but granted a partial summary judgment for held that breach of an implied covenant in an oil and gas
Ridge. The court of appeals reversed and rendered lease “does not automatically terminate the estate, but
judgment for Guinn that its leasehold interest did not instead subjects the breaching party to liability for
terminate upon Ridge’s cessation of production. The
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monetary damages or, in extraordinary circumstances, By royalty conveyance deed, Mary Greer conveyed
the remedy of a conditional decree of cancellation.” a royalty interest to Steger Energy Corporation in “[a]ll
of that tract of land out of the AB 801 SEC 14/W M
D. Railroad Commission Rule-Making/Judicial BARNARD # 14 SURVEY, Wharton County, Texas,
Review known as the MEDALLION OIL-SIXS FRELS UNIT.”
1. Tex. R.R. Comm’n v. WBD Oil & Gas Co., 104 The pre-printed form deed contained an additional clause
S.W.3d 69 (Tex. February 13, 2003) [01-0177]. that stated: “In addition to the above described lands, it
The issue is whether the district court has is the intent of this instrument to convey, and this
jurisdiction under the state’s Administrative Procedures conveyance does so include, all of grantor’s royalty and
Act to review Texas Railroad Commission special field overriding royalty interest in all oil, gas, and other
rules adopted after a contested-case proceeding. In this minerals in the above named county or counties . . . .”
case, WBD had notice of the hearing involving Steger later assigned this royalty deed to Moore.
Panhandle oil and gas fields, but did not participate in it. The SixS Frels Gas Unit contained lands from both
When oil and gas operators sued to force WBD’s the W M Barnard #14 Survey and the I & G.N.R.R.
compliance with the rules, WBD sued the Railroad Survey #6. Greer, however, only owned an interest in
Commission and the operators to declare the rules the portion of the SixS Frels Gas Unit located in the I &
invalid. The trial court dismissed WBD’s lawsuit, but the G.N.R.R. Survey #6. After the deed was assigned to
court of appeals reversed, concluding that the field rules Moore, a well was drilled on land within Wharton County
are rules of “general applicability” that can be subject to in which Greer had an interest, but not on land located in
a declaratory judgment suit under the administrative the SixS Frels Unit or the Barnard #14 Survey. Moore
procedures law. filed suit for declaratory relief and moved for summary
The Supreme Court reversed and remanded, holding judgment, contending that the second clause of the
that Railroad Commission field rules adopted in a royalty deed conveyed all of Greer’s royalties from any
contested-case proceeding cannot be challenged in a land in Wharton County, and specifically her royalty
declaratory-judgment action. The Court compared rule- interest in the producing well. The trial court granted
making and contested-case proceedings, concluding that Moore’s motion for summary judgment. The court of
contested-case procedures limit participation to those appeals reversed and remanded, holding that a “cover-
directly affected by the dispute, in contrast to the all” clause can only convey small interests that are
maximum public participation necessary for rule-making. clearly contemplated within the more particularly
Partic ipants in a contested case should expect any described conveyance, and that such a clause is not
further challenge would follow immediately after the effective to convey a substantial property interest not
proceeding and that after that time the decision will adequately described in the deed and not intended by the
stand. The court of appeals suggested that determining grantor.
field rules is a hybrid process, but the Supreme Court said The Supreme Court granted Moore’s petition for
contested-case and rule-making procedures are mutually review and heard argument on October 29, 2003.
exclusive because a rule cannot be adopted without
public input and a contested case cannot be decided with F. Single Business Enterprise/Shareholder
it. Liability
1. S. Union Co. v. City of Edinburg S.W.3d ,
E. Royalty Conveyance/Cover-All Clause Tex. Sup. Ct. J. (October 31, 2003) [01-0785].
1. J. Hiram Moore, Ltd. v. Greer, 72 S.W.3d 436 (Tex. In this appeal from the City of Edinburg’s claim for
App.–Corpus Christi 2002), pet. for review underpayment of natural-gas franchise fees, the city
granted, 46 Tex. Sup. Ct. J. 801 (June 19, 2003) variously alleged breach of contract, fraud, and tortious
[02-0455]. interference with the franchise agreement. Among the
This case involves the construction of a royalty issues raised on appeal was whether the court of appeals
conveyance. The question presented is whether a erred by finding joint liability based on the gas supplier
“cover-all” geographic grant clause, combined with a and its related subsidiaries operating a “single business
clause conveying a smaller, specifically-described enterprise.” Edinburg’s claims arose from its contract
interest, effects the conveyance of a significant property with Rio Grande Valley Gas Co. (RGVG) to supply gas
interest that the grantor contends she had no intention of to Edinburg customers. Under the franchise agreement,
conveying by the deed. RGVG agreed to pay the city 4 percent of gross income
from gas it sold in the city. The dispute started after
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subsidiaries of the company that owned RGVG–and XXXIII. PROBATE: WILLS, TRUSTS, ESTATES,
eventually other companies–began supplying Edinburg AND GUARDIANSHIPS
industrial customers at spot-market rates lower than the A. District Court’s Continuing Jurisdiction Over
regulated rates RGVG charged, but using RGVG’s Trust
pipelines to deliver the gas. Eventually, RGVG 1. Tex. State Bank v. Amaro, 87 S.W.3d 538 (Tex.
transferred its entire gas-transportation system to a September 26, 2002) [00-1220].
related subsidiary. The City claimed breach of contract In this case, the Supreme Court considered whether
and fraudulent inducement, among other things, and a district court had continuing jurisdiction to terminate a
sought a finding that certain companies were jointly and trust it created under Chapter 142 of the Texas Trust
severally liable to the City under a theory of “single Code and whether its judgment concerning that trust
business enterprise,” under which separate corporations exceeded the relief requested. The trust at issue was
may be jointly and severally liable for the debts of created by the 206th district court for Rutilo Vargas
another, based on a common business purpose. Based Amaro (Vargas) after he was deemed incapacitated as
on the jury’s findings, the trial court rendered judgment a result of injuries suffered in a sugarcane field burn-off.
against the defendants, jointly and severally, for over $6.5 The trust was administered by Texas State Bank (TSB)
million in actual damages and prejudgment interest, plus for nine years. In May 1997, Vargas filed a “Motion for
over $3.5 million in attorney’s fees, including conditional Termination of Trust” in the 206 t h district court. In
appellate attorney’s fees. The court of appeals reduced September 1997, the 370th district court ruled in Vargas’s
the actual damages award to $774,445, including uncontested divorce proceeding that Vargas suffered no
prejudgment interest, affirmed the award of attorney’s incapacity. Vargas then filed a notice of non-suit in the
fees, and reversed the awards based on fraud. 206th district court and demanded that TSB release the
The Supreme Court held that provisions of the trust funds based on the divorce court’s determination.
franchise agreement reflected the parties’ intent that TSB asked the 206th district court to determine if the
“gross income derived from all gas sales within the City” trust should be terminated and to approve TSB’s final
(on which the franchise fee was to be calculated) meant accounting. The district court terminated the trust,
gross income from RGVG’s sales within the city, not approved all accountings submitted by TSB, approved
sales by other parties. Thus, RGVG was not required to TSB’s investment philosophy, and released TSB from
pay the fee for gas that was transported through its any liability to the trust or Vargas.
pipeline system and sold within the city by unregulated The court of appeals reversed those portions of the
affiliated suppliers. The Court did not decide whether district court’s order approving TSB’s investment
Texas should recognize the single business enterprise philosophy and the distributions, fees, costs, and expenses
theory as an addition to the alter-ego theory for TSB paid from the trust (except for those relating to the
disregarding corporate structure and the joint-venture, trust’s termination). The court of appeals also reversed
joint-enterprise or partnership theories for imposing joint the portion of the order that absolved TSB of liability to
and several liability. The Court further said that article Vargas or the trust.
2.21 of the Texas Business Corporation Act provided the The Supreme Court held that the 206th district court
exclusive remedy regarding shareholder and affiliate had continuing jurisdiction over the trust. A trust created
liability and that the questions submitted to the jury were under Chapter 142 may be amended, modified, or
intended to embody article 2.21's requirements. Finally, revoked at any time prior to termination. TEX. PROP.
the Court held that the gas suppliers did not tortiously C ODE § 142.005(d),(f). Also, the trust document
interfere with the city's right to franchise tax revenue provided that the court “shall retain the right . . . to
from RGVG; and that RGVG did not fraudulently induce amend, alter, modify, or revoke this trust.” The Supreme
the city to enact an ordinance embodying the franchise Court further concluded that the district court’s judgment
agreement and RGVG’s obligation to pay franchise exceeded the relief requested. TSB moved the district
taxes. court to terminate the trust and approve its final
accounting. The court’s approving the final accounting
was within the scope of requested relief, but the court’s
approving TSB’s investment philosophy and absolving
TSB of any tort liability were not. Because determining
TSB’s tort liability and approving TSB’s investment
philosophy were not necessary to the accounting, and
because the district court’s approval of the accounting
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was not an adjudication of TSB’s tort liabilities, the Court law extends the deadline for perfecting an accelerated
determined that Vargas was not entitled to a jury or to appeal. Under such circumstances, the Court said, Hone
forty-five days notice of the hearing. Finally, the Court could have plausibly assumed his request would extend
concluded that the trial court properly approved all the appeal deadline.
distributions, fees, costs, and expenses paid from the trust
by TSB. B. Broad-Form Jury Questions/Prejudice
1. Harris County v. Smith, 96 S.W.3d 230 (Tex.
B. Transferring Lawsuit/Abuse of Discretion December 19, 2002) [01-0531].
1. In re Houston Northwest Partners, Ltd. [03-0252], The issue is whether the presumptive harm rule of
98 S.W.3d 777 (Tex. App.–Austin 2003), argument Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378
granted on pet. for writ of mandamus, 46 Tex. (Tex. 2000), applies to errors in broad-form damages
Sup. Ct. J. 1124 (September 11, 2003), and submissions. Deputy Sheriff Spurgeon and the Smiths
consolidated for oral argument with Gonzalez v. were in a car crash in 1994, causing injuries to the
Reliant Energy, Inc. [03-0469 & 03-0470], 102 Smiths. The Smiths sued the County, and a jury found
S.W.3d 868 (Tex. App.–Houston [1st Dist.] 2003). that Spurgeon’s negligence caused the Smiths’ injuries.
The principal issue in these cases is whether a The County did not challenge the negligence finding but
statutory probate court can transfer to itself a wrongful did object to the inclusion of certain damage elements in
death or personal injury case from a district court in the broad-form submissions to the jury. The jury was
another county where venue has been properly asked to consider physical pain and mental anguish, loss
established. In the Gonzalez actions, the issue is Texas of earning capacity, physical impairment, and medical
Probate Code section 5B (estate administration). In care in deciding the amount of Mr. Smith’s damages.
Houston Northwest Partners the issue concerns The County objected to including lost earning capacity, as
Probate Code section 608 (guardianship). The Supreme there was no evidence of Mr. Smith’s income before or
Court heard argument in these cases on November 19, after the accident. The jury awarded Mr. Smith $90,000
2003. in damages. The jury was similarly asked to consider
physical pain and mental anguish, physical impairment,
XXXIV. PROCEDURE—APPELLATE and medical care in deciding the amount of Ms. Smith’s
A. Appeal Notice/Extension/TRAP 26.3 damages. The County objected to including physical
1. Hone v. Hanafin, 104 S.W.3d 884 (Tex. May 1, impairment, as there was no evidence that her injury
2003) [02-0548]. constituted a separate and substantial or extremely
The issue is whether an extension to file an appeal disabling loss beyond pain and suffering. The jury
under Texas Rule of Appellate Procedure 26.3’s awarded Ms. Smith $3,100. The court of appeals agreed
“reasonable-explanation” provision requires the party with the County that the trial court erred by including in
seeking the extension to concede the appeal notice was its broad-form damages submission the elements of loss
not filed on time. In this case the trial court signed an of earning capacity for Mr. Smith and physical
order May 9 sustaining a special appearance and issued impairment for Ms. Smith. But the court of appeals held
fact findings and legal conclusions May 17. Hone filed that these errors were harmless because the jury could
a notice of appeal June 1, challenging the trial court’s have awarded damages for the Smiths’ medical costs
special-appearance order. Hone contended his request and physical pain and mental anguish. It thus affirmed
for findings of fact and conclusions of law extended the the trial court’s judgment.
appeal deadline. Hanafin challenged the court of The Supreme Court held that the reasoning in
appeal’s jurisdiction because the accelerated appeal was Crown Life Insurance Co. v. Casteel, 22 S.W.3d 378
not perfected within 20 days. The appeals court (Tex. 2000), applies equally to broad-form damage
dismissed, reasoning that Hone did not comply with Rule questions. Casteel held that commingling valid and
26.3 because he only explained why his notice was filed invalid theories on liability could be harmful error when
within time limits, not why he failed to file on time. the basis for the jury’s finding could not be determined
The Supreme Court reversed and remanded, holding for appellate review.
that, based on the liberal standard for considering Justice O’Neill dissented, arguing Harris County did
untimely appeals, the court of appeals erred by imposing not contend the evidence was legally insufficient to
a requirement that Hone concede his appeal was late. support the jury’s award. Nevertheless, because one
The Court noted that scholars and courts disagree about unsupported damage element was included in each
whether a request for findings of fact and conclusions of plaintiff’s broad-form jury charge, the Court presumed
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reversible harm. To do so, Justice O’Neill said, the Court based on ineffective assistance of a parent’s court-
assumed, contrary to longstanding precedent, that the jury appointed counsel, assistance of counsel in this case was
failed to follow the trial court’s instructions. According not ineffective.
to Justice O’Neill, the Court’s decision will encourage Justice Hankinson dissented, arguing Rule 279 does
granulated and confusing jury charges, the very problem not answer the actual question presented of whether, in
broad-form submission was designed to prevent. Justice light of the constitutional interests at stake, the law
O’Neill argued that a distinction between a broad-form requires an appellate court to consider the parents’
submission unsupported by the substantive law, as complaints as if they did object to the charge. According
presented in Casteel, and one that presents an element to Justice Hankinson, the Court did not explain how it
or theory lacking evidentiary support, as in this case, has could review the parents’ second unpreserved claim of
been recognized by the U.S. Supreme Court, legal charge error (concerning broad-form submis sions),
commentators, and Texas civil procedure rules. instead simply concluding that the error, if any, was
harmless. By refusing to answer the question presented,
2. In re J.F.C., 96 S.W.3d 256 (Tex. December 31, Justice Hankinson said, the Court did a disservice to
2002) [01-0571]. (1) the courts of appeals by failing to resolve the conflict
The issues the Supreme Court addressed in this case among them as to whether they may review unpreserved
are: (1) whether federal due process requires appellate error in termination cases, (2) our established
review of unpreserved jury charge error in an involuntary jurisprudence, which permits us to review only preserved
parental-rights termination proceeding; (2) if so, whether complaints unless a recognized exception exists, and
the error was harmless; and (3) whether broad-form (3) the parents and children entitled to consistent and
questions submitted to the jury provided procedural efficient appellate review that fairly adjudicates their
safeguards for the parents. The State moved to complaints in these time-sensitive and compelling cases.
terminate the parents’ rights to three of their children Justice Hankinson would have held that Texas’s
based on child endangerment. The parents argued that procedures for reviewing unpreserved charge error in
the jury never found termination to be in the children’s parental-rights-termination cases do not violate due
best interest as required by statute because the best process and that the omission in the jury charge was not
interest element was omitted from material parts of the harmful. She would have remanded the case to the court
charge. They also argued that the disjunctive listing of of appeals to consider the remaining issues, which that
the statutory grounds for termination in the jury charge court had not addressed.
made it impossible to determine whether enough jurors Justice Schneider, also dissenting, argued that the
agreed on the particular grounds for termination and that issues to be decided were: (1) whether federal due
they were denied effective assistance of counsel. The process requires appellate review of a jury-charge error
trial court entered an order terminating the parental rights in an involuntary parental-rights termination case when
of each parent based on the jury’s answers to the charge, error was not preserved in the trial court; (2) if so,
but the court of appeals reversed, reasoning that the whether the error was harmless; and (3) whether the
parents’ federal due-process rights were violated by the broad-form questions submitted to the jury in this case
“obvious and fundamental” jury charge error and that provided procedural safeguards for the parents. Justice
such error was harmful. Schneider said the parents waived their right to review of
The Supreme Court reversed and rendered, holding: the alleged errors by failing to object at trial and that
(1) Texas Rule of Civil Procedure 279 requires supplying neither the Texas nor the federal Constitutions mandate
the omitted “best interest” finding in support of the appellate review of unpreserved jury-charge error.
judgment because the trial court made either an express
or deemed finding that termination was in the children’s C. Expert Testimony
best interest; (2) fundamental error cannot be used to 1. FFE Transp. Servs., Inc. v. Fulgham, 2002 WL
circumvent Rule 279s application; (3) applying Rule 279 1801596 (Tex. App.–Dallas), pet. for review
does not violate either state or federal due process; (4) granted, 46 Tex. Sup. Ct. J. 838 (June 26, 2003)
the parental conduct that was the basis for termination [02-1097].
was conclusively established, so the Court did not reach The issues in this case are: (1) whether an entity
the issue of whether disjunctive, broad-form submission that leases or relinquishes possession of a product to a
of the grounds for termination violated the parents’ due third party to further its own purposes has released a
process rights; and (5) assuming, without deciding, that a product into the stream of commerce such that it can be
judgment terminating parental rights could be set aside subject to a products liability claim; (2) whether the court
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of appeals applied the correct standard of review in their parental rights. A divided court of appeals reversed,
determining the necessity of expert testimony; and holding the parents had a due process right to effective
(3) whether expert testimony is necessary to establish the assistance of counsel, relying by analogy on the Sixth
applicable standard of care and breach of the standard of Amendment right to counsel in criminal law. The court
care. further held that the broad-form jury change was
Larry Fulgham and FFE Transportation Servic es reversible error that could be raised for the first time on
(FFE) had a long-haul trucking agreement. On March 7, appeal.
1998, as Fulgham was hauling a load for FFE, the upper- The Supreme Court held that, in deciding whether a
coupler assembly broke from his trailer, causing the conflict of interest exists between parents opposing
trailer to detach from the tractor. Fulgham was injured termination in a single lawsuit, the trial court must
when he lost control of the tractor and it overturned. determine whether a substantial risk exists that the
Fulgham alleged that the bolts holding the upper-coupler appointed counsel’s obligations to one parent would
assembly to the base of the rail of the trailer were rusted materially and adversely affect his or her obligations to
and weakened. The Fulghams sued for negligence and the other parent. In this case the Court determined that
products liability against FFE. The trial court granted the trial court did not err in finding no conflict of interest
FFE’s motion for directed verdict, holding there was no between the parents. The Court said that because no
evidence of breach of duty or causation and that no conflict of interest existed, the Court did not have to
evidence showed that FFE put the trailer into the stream consider whether there is a constitutional right to
of commerce. The court of appeals reversed and effective assistance of counsel in parental termination
remanded, holding that: (1) expert testimony was not cases. The Court also concluded the complaint about the
necessary to establish the applicable standard of care; broad-form jury charge was not preserved because the
(2) there was at least some evidence that FFE breached parents failed to object the charge on that basis.
its duty to inspect the trailer; and (3) the agreement
between Fulgham and FFE constituted a lease in which 3. In re K.N.R., 113 S.W.3d 365 (Tex. July 3, 2003)
FFE introduced its trailer into the stream of commerce [02-0442].
such that FFE could be held strictly liable for the defect. A mother’s complaint that broad-form submission of
The Supreme Court granted FFE’s petition for the statutory grounds for terminating her parental rights
review and heard argument on October 29, 2003. violated due process was not preserved for appellate
review because she did not object in the trial court to the
2. In re B.L.D., 113 S.W.3d 340 (Tex. July 3, 2003) alleged charge error.
[01-0882].
The principal issues in this parental-rights D. Filing Fees
termination case are (1) whether the trial court should 1. Office of the Att’y Gen. of Tex. v. Lee, 92 S.W.3d
have granted separate trials for parents based on their 526 (Tex. December 5, 2002) [01-0471].
court-appointed counsel’s alleged conflict of interest and The issues are (1) whether child-support judgments
(2) whether the parents preserved their complaint that are subject to post-judgment interest when the judgment
jury questions that submitted multiple grounds for does not expressly award it, and (2) whether the attorney
terminating their parental rights disjunctively and in general, acting as a Title IV-D agency, is required to pay
“broad form” violated their due process rights. The appellate filing fees in a Title IV-D support appeal.
parents’ appointed counsel first requested separate trials The Supreme Court held that child-support
before trial began, claiming a potential conflict of interest judgments, like all other monetary judgments, accrue
existed. He later renewed the request during trial, post-judgment interest, and the attorney general, acting as
claiming that an actual conflict had arisen based on the a Title IV-D agency, is not obligated to pay appellate
evidence adduced at trial. The trial court denied both filing fees.
requests, and ultimately terminated both parents’ rights to
their children based on the jury’s verdict. On appeal the E. Finality of Judgments
parents complained that they were denied effective 1. Briscoe v. Goodmark Corp., 102 S.W.3d 714 (Tex.
assistance of counsel because one lawyer represented March 27, 2003) [02-0498].
both of them. They also raised for the first time their The Supreme Court determined in this case whether
complaint that the broad-form jury charge made it the court of appeals should have dismissed a second
impossible to determine whether at least ten jurors appeal as untimely when it dismissed an earlier appeal in
agreed on at least one statutory ground for terminating the same case for want of jurisdiction because no final
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judgment had been entered. The trial court had rendered testimony of the plaintiff’s accident-reconstruction
judgment in favor of Goodmark and others based on jury expert. On November 26, 1996, Haley Sperling was
findings after a trial on the merits. Briscoe filed a notice driving a 1996 Volkswagen Passat when she collided
of appeal, but questioned whether the judgment was final with a Camaro and crossed the median into opposing
and appealable. The court of appeals determined that the traffic. Ms. Sperling’s Passat collided head-on with a
judgment was not final and dismissed the appeal. 1995 Ford Mustang driven by Diana Ramirez Guerra and
Goodmark then moved for and obtained an order from occupied by her daughter, Jacquelyn Guerra. Ms.
the trial court declaring that its original judgment disposed Sperling and Diana Guerra died in the accident, and
of all parties and claims and that the judgment was final Jacquelyn Guerra was seriously injured. The families
and enforceable. On Briscoe’s appeal from that order, sued Volkswagen of America, Inc., the driver of the
the court of appeals held that the original judgment had Camaro, and others for money damages, alleging product
indeed been a final judgment and dismissed the second defects and negligence. The Sperling family’s claims
appeal for want of jurisdiction because that appeal had were severed from the Ramirez family’s claims. This
not been filed on time. appeal involves only the Ramirez family’s claims.
The Supreme Court concluded that the law-of-the- Two trials were held in this case. In the first trial,
case doctrine gave the court of appeals authority to the jury returned a unanimous verdict in favor of
reconsider its first dismissal of the appeal and to change Volkswagen, but the trial court granted the Ramirez
that first decision if it was clearly erroneous. The court family’s motion for a new trial “in the interest of justice”
of appeals should not have dismissed the second appeal without providing further explanation. After the second
for want of jurisdiction, but having found a final judgment trial, ten of the twelve jurors returned a verdict in favor
that could be appealed, the court should have considered of the family, awarding them $15.9 million in actual
the merits of Briscoe’s first appeal. damages. The court of appeals affirmed the trial court’s
In a concurring opinion, Justice Jefferson said that judgment.
the Court’s opinion might encourage other litigants to file The Supreme Court granted Volkswagen’s petition
“conditional” notices of appeal questioning the finality of for review and heard oral argument on April 23, 2003.
patently final judgments and that such equivocal appeals
would have a pernicious effect on our already troubled G. No-Evidence Summary Judgment/ Standard of
finality jurisprudence. Justice Jefferson explained that Review
Briscoe’s conditional appeal, for example, delayed 1. Binur v. Jacobo, 70 S.W.3d 330 (Tex. App.–Waco
disposition of the merits of the dispute and threatened to 2002), pet. for review granted, 46 Tex. Sup. Ct. J.
disturb what had always been a final judgment. But 488 (March 6, 2003) [02-0405].
because Goodmark did not address the judgment’s The first issue in this case is whether Donna
finality before the court of appeals even though the court Jacobo’s claim should be reviewed as an “informed
of appeals solicited a response, it could not complain that consent” claim or as an allegation of misdiagnosis and
the court accepted Briscoe’s faulty analysis. negligent treatment. The second issue is whether the
court of appeals properly reviewed Dr. Binur’s no-
F. Motion for New Trial Granted/Standard of evidence motion for summary judgment under the
Review traditional summary judgment standard. The final issue
1. Volkswagen of Am., Inc. v. Ramirez, 79 S.W.3d is whether Dr. Binur acted as Dr. Schmidt’s co-surgeon
113 (Tex. App.–Corpus Christi 2002), pet. for or assistant surgeon for Jacobo’s mastectomy procedure.
review granted, 46 Tex. Sup. Ct. J. 489 (March 6, Donna Jacobo sought medical attention because of
2003) [02-0557]. her growing concerns that she could develop breast
The issues in this personal injury case arising from cancer based on a family history of breast cancer. Dr.
an automobile accident are (1) whether an order granting Schmidt examined Jacobo’s mammogram and
a new trial is reviewable on appeal after the second trial; determined it showed no presence of cancer, but he
(2) whether the trial court abused its discretion by recommended that Jacobo undergo a “prophylactic
admitting a TV news crew’s videotaped witness mastectomy,” a process designed to remove breasts as
statement when the witness refused to identify himself on a preventative measure. Dr. Schmidt referred Jacobo to
the video and was not available for cross-examination; Dr. Binur, a plastic surgeon, to discuss the possibility of
(3) whether the Texas probation statute restores a plastic surgery to reconstruct the breast if she had the
convicted felon’s jury service eligibility; and (4) whether mastectomy. After signing a consent form, Jacobo had
the trial court abused its discretion by admitting the the prophylactic mastectomy and later underwent seven
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more surgeries to correct the unsuccessful reconstructive I. Preserving Error/Broad-Form Jury Questions
procedures Dr. Binur performed. 1. In re A.F., 113 S.W.3d 363 (Tex. July 3, 2003)
Jacobo sued both Dr. Schmidt and Dr. Binur, [02-1167].
alleging they failed to obtain her informed consent for the Parents’ complaint that broad-form submission of
mastectomy. With respect to Dr. Binur, Jacobo alleged the statutory grounds for terminating their parental rights
that he informed her that she would without question violated due process was not preserved for appellate
develop cancer in her breasts and that her decision to review because the parents did not object in the trial
have the procedure was based on Dr. Binur’s alleged court to the alleged charge error.
comments. The trial court granted Dr. Schmidt’s motion
for summary judgment, but Jacobo’s claim against Dr. J. Time for Perfecting Appeal
Binur went to trial, resulting in a hung jury and a mistrial. 1. Naaman v. Grider S.W.3d , 47 Tex. Sup. Ct. J.
After the mistrial, Dr. Binur asserted both traditional and 60 (October 31, 2003) [02-0784].
no-evidence summary judgment motions. The trial court The issue in this case was whether the trial court’s
granted Dr. Binur’s motion for summary judgment, but granting of a motion for judgment after it had already
the court of appeals reversed. entered a final judgment set the time for perfecting an
The Supreme Court granted Dr. Binur’s petition for appeal. The Supreme Court held that an order that
review and heard oral argument on April 23, 2003. merely grants a motion for judgment is not itself a
judgment and adjudicates nothing. The only judgment in
H. Preserving Error this case, the Court said, was the final judgment, which
1. Bennett v. Cochran, 96 S.W.3d 227 (Tex. was signed four weeks before the trial court granted the
December 12, 2002) [02-0050]. motion for judgment.
The issue the Supreme Court considered in this case
is whether a party who requested a partial reporter’s XXXV. PROCEDURE—PRETRIAL
record waived his right to challenge the legal and factual A. Correcting Pleading/Supplemental or Amended
sufficiency of the evidence on appeal. Former law Petition
partners sued each other after the partnership 1. Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46
terminated. The jury awarded damages to each side, but (Tex. May 22, 2003) [02-0179].
the trial court granted Cochran’s motion for judgment This case involving a limited partnership that sued
notwithstanding the verdict and ordered that Bennett take under a wrong name raises three issues: (1) whether
nothing. On Bennett’s appeal, the court of appeals legally sufficient evidence exists that Sixth RMA
affirmed, holding that Bennett had waived any complaint Partners used “RMA Partners, L.P.” as an assumed
challenging sufficiency of the evidence because he name so that the original petition filed under the name
requested only a partial reporter’s record. RMA Partners was effective to sue on behalf of Sixth
The Supreme Court concluded that Texas Rule of RMA Partners; (2) whether Sixth RMA Partners’
Appellate Procedure 34.6 expressly states that an second supplemental pleadings were effective to
appellant need not file a complete reporter’s record to substitute its correct legal name; and (3) whether Sixth
preserve factual or legal sufficiency points. Bennett’s RMA Partners is prohibited from prosecuting its claims
delay in filing his issues statement did not prevent in Texas courts because it has never filed an assumed
Cochran from identifying relevant issues or from name certificate. In this case, Sibley defaulted on two
supplementing the record, and he did not assert that he notes owned by Sixth RMA Partners, a separate legal
did not have time to adequately prepare his argument. entity among 16 limited partnerships operating under the
Many courts of appeals require strict compliance with general name RMA Partners. After Sibley sued “RMA
Rule 34.6 in order to preserve appellate review, but the Partners” to declare he did not owe anything on the
Court said it has adopted a more flexible approach in notes, “RMA Partners” sued to collect on the notes.
certain cases such as this one, when a rigid application of Four years after the suit began, “RMA Partners a/k/a
Rule 34.6 would deny review on the merits even though Sixth RMA Partners” filed the supplemental petition
no prejudice has been established. designating Sixth RMA Partners as the proper party
name. In response to Sibley’s summary-judgment
motion, Sixth RMA Partners answered for the first time
using its name as the party name. Sibley argued that use
of a supplemental petition was improper to change the
party name and Sixth RMA Partners was an improper
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plaintiff, so the statute of limitations expired on the suit to (1) whether to present a legally cognizable challenge to
collect on the notes. The trial court ruled against Sibley. the system West Orange-Cove and three other school
The court of appeals reversed, holding the statute of districts were required to plead that they, and half or
limitations barred the collection claim because Sixth close to half of all other school districts, were forced to
RMA Partners never entered the lawsuit properly by an tax at the highest allowable tax rate to provide an
amended petition. accredited education, and (2) whether the school districts
The Supreme Court reversed and remanded, holding should have been given an opportunity to amend their
(1) that some evidence supported the trial court’s implied pleadings or conduct discovery after the trial court or the
finding that Sixth RMA Partners used the name RMA court of appeals decisions. The overriding issue in this
Partners as an assumed name; (2) that Sixth RMA case and two previous challenges to Texas’s school
Partners’ second supplemental pleadings were effective finance system is whether the state has imposed an
to substitute its correct legal name; and (3) that Sibley unconstitutional statewide property tax. In the last
waived any claim that Sixth RMA Partners’ failure to file decision upholding the state’s school-financing scheme,
the required assumed name certificate precluded its suit Edgewood Independent School District v. Meno, 917
because the claim was not properly raised in the trial E
S.W.2d 717 (Tex. 1995) ( dgewood IV), the Court
court. noted that “some” school districts eventually “may be
forced to tax at the maximum allowable rate just to
B. Enforcement of a Forum-Selection Clause provide a general diffusion of knowledge” and that
1. In re AIU Ins. Co., argument granted on pet. for “general diffusion of knowledge” establishes the
writ of mandamus, 46 Tex. Sup. Ct. J. 478 (March constitutional requirement for the Sate’s support of its
6, 2003) [02-0648]. public schools. In this case West Orange-Cove and the
This mandamus proceeding involves a trial court other districts alleged that they were taxing at or near the
order denying enforcement of a forum-selection clause. maximum tax rate to “educate their students,” citing
AIU Insurance Co. contracted with Louis Dreyfus Edgewood IV. Because of that, they argued, the
Natural Gas Corp. to provide insurance coverage. The districts had no meaningful discretion in setting their tax
insurance contract provided that all litigation, arbitration, rates, making the school-finance system an
or other form of dispute resolution would take place in unconstitutional state property tax.
New York. Louis Dreyfus Natural Gas sought a defense The State filed special exceptions to the school
under the insurance contract. AIU denied coverage. districts’ pleadings, and the trial court dismissed the
Louis Dreyfus sued AIU in Texas state court. AIU lawsuit, ruling that the school districts failed to state a
requested a jury trial, answered discovery and waited cognizable constitutional claim because they failed to
five months before moving to dismiss. Louis Dreyfus allege in their pleadings that they were taxing at or near
responded to the motion to dismiss by asserting AIU the maximum rates allowed by state law in order to meet
waived its right to rely on the forum-selection clause and state-mandated accreditation requirements. The trial
that the public interest of Texas precluded enforcement court equated school accreditation with the constitutional
of the clause. The trial court denied the motion to standard for providing a minimum public
dismiss without stating its reasons. The court of appeals education–“general diffusion of knowledge.” The court
denied mandamus relief. also set a threshold that at least close to half the State’s
In its petition for review to the Supreme Court, the school districts must be taxing at the maximum rate to
parties have raised the following issues: (1) whether establish that the state-financing system had become an
AIU’s actions waived its right to rely on the forum- unconstitutional, statewide property tax. Because the
selection clause; (2) whether the public interest of Texas court concluded that the school districts could not show
precludes enforcement of the forum-selection clause; and that a sufficient number of the state’s school districts
(3) whether there is an adequate remedy by appeal. The were taxing at the maximum rate, the court determined
Supreme Court heard oral argument on September 3, that the districts could not show an unconstitutional tax
2003. and denied their request to replead their case. The court
of appeals affirmed the trial court’s decision to dismiss
C. Special Exceptions the suit, but rejected the trial judge’s analysis that close
1. W. Orange-Cove Consol. I.S.D. v. Alanis, 107 to half the school districts taxing at the maximum rate
S.W.3d 558 (Tex. May 29, 2003) [02-0427]. would establish an unconstitutional statewide property
This case involves a constitutional challenge to tax. The court of appeals focused on the question of
Texas’s school-finance system. The principal issues are
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whether any of the districts were forced to tax at the In dissent, Justice Smith argued that the Court
maximum rate just to provide an accredited education. lacked subject matter jurisdiction to decide the case and
The Supreme Court reversed and remanded, that the Court’s holding that school districts have a legal
reaffirming the “meaningful discretion” test from obligation to comply with the general diffusion of
Carrollton-Farmers Branch Independent School knowledge standard contained in article VII, section 1 of
District v. Edgewood Independent School District, 826 the Texas Constitution transforms a putative taxpayer
S.W.2d 489 (Tex. 1992) (Edgewood III), to decide suit brought under article VIII, section 1-e into an article
whether a state-imposed taxing scheme is an VII, section 1 “adequacy” challenge.
unconstitutional ad valorem tax, noting that the
determining factor is the extent of the state’s control over D. Summary Judgment/Craddock Standard
the taxation process, and holding that the school districts 1. Carpenter v. Cimarron Hydrocarbons Corp., 98
should be allowed to replead their case and offer proof S.W.3d 682 (Tex. December 31, 2002) [01-0002].
that they are taxing at the maximum allowable rate either In this case, the Supreme Court determined whether
to satisfy accreditation standards or a general diffusion of the equitable rule in Craddock v. Sunshine Bus Lines
knowledge. The Court disagreed with the trial court on Inc., 133 S.W.2d 124 (Tex. 1939), regarding granting a
the number of districts that have to be taxing at or near new trial after a “default” judgment should extend to
the maximum rate to state a constitutional claim, holding overturning a summary judgment when the summary-
that a single district can state a claim of an judgment response was rejected for late filing. Cimarron
unconstitutional property tax if it alleges it is constrained sued Carpenter and his companies after a well-casing
by the state to tax at a particular rate. leak developed. An initial summary judgment hearing
In reviewing the trial court’s dismissal on the was continued because Carpenter hired a new attorney.
pleadings, the Court said that to obtain dismissal the State Carpenter’s new attorney then missed the deadline for
must establish as a matter of law that the school districts filing a response to the summary judgment motion. In an
are not forced to tax at maximum rates either to meet affidavit, his attorney explained that by mistake, a notice
accreditation standards or to provide a general diffusion of the hearing had never been given to an associate
of knowledge, but the State failed to meet its burden. In working on the case. When Cimarron refused to take
addition, the Court said that the State was also not the late response and rejected a continuance request,
entitled to dismissal on its argument that the mere Carpenter asked the court to accept the late response
existence of local-option homestead exemptions shows and attached it to the motion. The trial court rejected the
that the school districts are not forced to tax at maximum motion, granted Cimarron’s traditional and no-evidence
rates unless the State establishes that fact as a matter of summary judgment motions and denied Carpenter’s
law, which it failed to do. The school districts were thus motion for a new trial. The court of appeals reversed,
entitled to attempt to show that homestead exemptions do holding that a “default” summary judgment occurs when
not afford them meaningful discretion in setting tax rates. the trial court refuses to accept a late response and that
The Court also said that the school distric ts need not Craddock applies to default summary judgments.
actually be taxing at maximum rates if they can show The Supreme Court held that the Craddock rule
that they couldn’t meet accreditation standards or provide does not apply to a motion for new trial filed after
a general diffusion of knowledge even if they were. summary judgment is granted when the other side failed
In a concurring opinion, Justice Enoch said the to respond in time despite its notice of the hearing and its
Legislature, through the Texas Education Code, requires opportunity to use court rules to alter the deadlines that
only that school districts provide an accredited education. Texas Rule of Civil Procedure 166a imposes. The rules
Thus, on the narrow question in this case, Justice Enoch provided Cimarron an opportunity to get the trial court’s
said the Court was correct that the school districts should permission to file a late response to the summary
be afforded the opportunity to plead that they must tax at judgment motion. The equitable Craddock standard
the tax rate set by the State to provide an accredited should not apply. The Court further held that leave to file
education. But Justice Enoch argued that the school a late summary judgment response should be granted
districts should not be allowed to raise a claim that the when the responding party establishes good cause by
school finance system constitutes an unconstitutional showing that the failure to respond on time (1) was not
state ad valorem property tax by asserting the need to tax intentional or the result of conscious indifference, but the
at maximum rates to provide a general diffusion of result of an accident or mistake, and (2) that allowing the
knowledge. late response will not result in undue delay or otherwise
injure the party seeking summary judgment. Because
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Cimarron did not establish good cause, the trial court did XXXVI. PROCEDURE—TRIAL AND POST-
not abuse its discretion in denying its motion to file the TRIAL
response late. Nor did the trial court err in denying A. Procedure–Trial and Post-Trial/Batson
Cimarron’s motion for new trial on this basis. The Court Challenge
remanded the case to the court of appeals for 1. Gen. Motors Corp. v. Iracheta, 90 S.W.3d 725
consideration of issues Cimarron raised that the court did (Tex. App.–San Antonio 2002), pet. for review
not address. granted, 46 Tex. Sup. Ct. J. 1204 (September 25,
Justice Hecht, concurring, stated that the Craddock 2003) [02-0932].
standards should not apply because the failure to timely The main issue in this products liability case is
answer a petition and the failure to timely respond to a whether there was legally sufficient evidence that an
motion for summary judgment are very different alleged design defect caused the death of two children in
situations. an automobile accident. The children’s grandmother
sued General Motors Corporation (GM), alleging the car
E. Venue/Motion to Transfer they were riding in had a defectively designed fuel
1. Garza v. Garcia, 70 S.W.3d 362 (Tex. App.–Corpus system that caused the post-collision fire that killed the
Christi 2002), pet. for review granted, 46 Tex. Sup. children. A jury found the design defect caused one
Ct. J. 16 (October 10, 2002) [02-0300]. child’s death, awarded the estate $10,004,500 for pain
The principal issue is whether the court of appeals and suffering, found that GM acted with malice, and
properly reversed the trial court’s venue-transfer order awarded $750,000 in exemplary damages. The court of
brought under sections 15.002(a) and (b) of the Texas appeals affirmed the trial court’s judgment. GM’s
Civil Practice and Remedies Code when the order did not petition for review also raises an issue about whether the
specify the grounds for transferring venue. Garcia was trial court erred in overruling GM’s Batson challenge
injured in an automobile accident occurring in Hidalgo after Iracheta used two peremptory strikes to eliminate
County. She brought suit against Garza and his two white venire members, resulting in an all-Hispanic
employer, J&R Valley Oilfield Services, in Starr County. jury. The Supreme Court granted GM’s petition for
Garza at various times stated that he resided in Starr review and heard argument on December 3, 2003.
County and in Hidalgo County. Before trial, Garza and
J&R filed a motion to transfer venue to Hidalgo County. B. Jury Instruction/Liability/Waiver
The Starr County trial court granted the motion over 1. Southwestern Bell Tel. Co. v. Garza, 58 S.W.3d 214
Garcia’s objections. A trial was held in Hidalgo County, (Tex. App.–Corpus Christi 2001), pet. for review
and Garcia was awarded $120,000. Garcia appealed, granted, 46 Tex. Sup. Ct. J. 779 (June 12, 2003)
asserting venue error or venue fraud. The court of [01-1142]
appeals reversed and remanded the case, ordering the The issues in this workers’ compensation retaliation
case to be transferred to Starr County. The court of case are (1) whether legally sufficient evidence
appeals held that a person may have more than one supported the award of punitive damages; (2) whether
residence for venue purposes. The court concluded that sufficient evidence existed to prove causation; (3)
because Garcia had filed suit in a county of proper venue, whether Southwestern Bell waived its complaint that the
it was reversible error to transfer venue, even if the liability question was defective; and (4) whether the
county of transfer would also have been proper if liability question was in fact defective. David Garza sued
originally chosen by Garcia. Southwestern Bell Telephone Company for workers’
The Supreme Court granted Garza’s petition for compensation retaliation. The trial court rendered
review and heard argument on January 22, 2003. judgment for Garza, awarding $1,034,108 in actual
damages, $1,000,000 in punitive damages, prejudgment
interest, and costs. The court of appeals held that
Southwestern Bell failed to timely and specifically object
to the liability question and that, regardless of the waiver,
the liability question was not improper. Furthermore, the
court of appeals held that the trial court did not err in
admitting evidence over Southwestern Bell’s objections
and that legally and factually sufficient evidence
supported the finding that Southwestern Bell violated the
anti-retaliation statute and the awards for mental anguish
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and punitive damages. The court of appeals also refused D. Motion for New Trial/Timeliness
to order remittitur of the awards for mental anguish and 1. Williams v. Flores, 88 S.W.3d 631 (Tex. October
punitive damages. 10, 2002) [02-0035].
The Supreme Court granted Southwestern Bell’s The issue is whether the court of appeals properly
petition for review and heard argument on October 15, dismissed the appeal by holding that Williams’ motion for
2003. a new trial was late.
The Supreme Court concluded that Williams’ new-
C. Jury Instruction/Spoliation trial motion, filed May 29, 2001, from a judgment dated
1. Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718 April 27, 2001, was timely because the 30th day after the
(Tex. May 22, 2003) [01-0441]. judgment fell on a Sunday and the following Monday was
The principal issue is whether the trial court abused a legal holiday. The Court also determined that Williams
its discretion by submitting an instruction against Wal- filed within time limits a motion for extension of time on
Mart on missing evidence. Johnson, a customer, sued the his notice of appeal, which he filed 12 days after the 90-
retailer after he was cut when a decorative reindeer fell day deadline.
from an upper shelf as an employee repositioned
merchandise. Just after Johnson was hit, he told store 2. Moritz v. Preiss, S.W.3d , 46 Tex. Sup. Ct. J.
employees that he was not hurt, then later developed 784 (June 12, 2003) [01-1270].
neck pain that led to surgery. Johnson and Wal-Mart The principal issue is whether a judgment that
disputed the composition, weight and size of the reindeer. disposed of all issues in an action, but did not name all
Wal-Mart failed to produce the reindeer and its witnesses defendants, was final. In this case the court of appeals
testified that the reindeer were either sold or thrown reversed the trial court’s denial of an amended motion for
away. A store manager took notes from the employee new trial raising a juror-disqualification issue and
and photographs, including one of the scene that did not remanded. The amended motion was filed more than 30
show much about the reindeer. At trial Wal-Mart days after the trial court issued the original judgment.
offered employee testimony on the size, composition and The motion was denied, then was denied again on a
weight of the reindeer. Over Wal-Mart’s objection, the motion to reconsider when the trial court revised its
trial court instructed the jury that it could presume the judgment to include the omitted defendant.
missing evidence would have been unfavorable to Wal- The Supreme Court reversed and rendered
Mart if the retailer knew or should have known it would judgment, holding that the original judgment was final for
be trial evidence. The jury decided for Johnson. The purposes of establishing a deadline for a new-trial motion
court of appeals affirmed. and that the untimely amended new-trial motion did not
The Supreme Court reversed and remanded, holding preserve issues for appellate review. Finality, the Court
that the trial court abused its discretion by giving the jury said, will be presumed for judgments following a full trial
the spoliation instruction. The beginning and end of the on the merits of the case when there is no indication that
Court’s analysis concerned the duty to preserve the trial court did not intend to dispose of the entire case.
evidence. The Court said such a duty arises only when As for the amended new-trial motion filed after the
a party knows or reasonably should know that a deadline, the Court said that the trial court’s granting
substantial chance exists that a claim will be filed and leave to file the untimely motion and hearing argument
that evidence in its possession or control will be material did not permit appellate review of the trial court’s denial
and relevant to that claim. Under an objective test, of the untimely motion (citing Texas Rules of Civil
nothing about the investigation or circumstances Procedure 5 and 329(b) and overruling Jackson v.
surrounding the accident would have put Wal-Mart on Winkle, 660 S.W.2d 807 (Tex. 1983) to the extent that it
notice of a substantial chance that Johnson would pursue allows appellate review of a trial court’s denial of an
a claim. And because an unnecessary spoliation untimely new-trial motion).
instruction by its nature “nudges” or “tilts” the jury, the
Court found that such an instruction when erroneously XXXVII. PRODUCTS LIABILITY
given is particularly likely to cause harm. A. Evidence
1. Ford Motor Co. v. Ridgway, 82 S.W.3d 26 (Tex.
App.–San Antonio 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 527 (March 27, 2003) [02-0552].
This is a personal injury, products liability case. The
issues are whether the plaintiffs can prove the existence
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of an actual product defect with only circumstantial “innocent product retailer” or “mere conduit” within the
evidence, and if so, whether they showed that the alleged marketing chain for purposes of obtaining statutory or
product defect actually caused the plaintiffs’ damages. common law indemnity from a component-part
Jack Ridgway purchased a used Ford truck with manufacturer. Dagoberto Gonzales sued Patrick Athey
approximately 54,700 miles in 1997. Shortly after and Crane Carrier Co. for injuries he sustained in a
purchasing the truck, Ridgway suffered severe burns and rollover accident that occurred when Gonzales swerved
disfigurement when the vehicle caught fire. No to miss another vehicle driven by Athey. Gonzales was
modifications or repairs had been performed on the truck driving a garbage truck manufactured and sold by Crane.
between the time Ridgway bought the vehicle and the Crane brought third-party actions for statutory and
day of the fire. common-law indemnification against component-part
The Ridgways sued Ford, asserting products liability manufacturers Bostrom Seating, Inc. and Beams
and negligence claims. The trial court granted Ford’s Industries, Inc., the manufacturers of the driver’s seat
motion for summary judgment. The court of appeals and driver’s side seat belt, respectively. The trial court
affirmed the trial court’s summary judgment on the granted directed verdicts in favor of Bostrom and Beams
negligence claim but reversed and remanded the products on the issue of indemnity. The court of appeals reversed
liability claim. The Supreme Court granted Ford’s the trial court’s judgment on Crane’s indemnification
petition for review and heard oral argument on claims, holding that Crane would be entitled to
September 10, 2003. indemnification from Bostrom because Crane qualifies as
a “seller” under section 82.001(3) of the Texas Civil
B. Evidence of Causation Practice and Remedies Code and as an “innocent
1. Gen. Motors Corp. v. Iracheta, 90 S.W.3d 725 product retailer” or “mere conduit” under the common
(Tex. App.–San Antonio 2002), pet. for review law. On appeal to the Supreme Court, Bostrom argues
granted, 46 Tex. Sup. Ct. J. 1204 (September 25, that Crane does not qualify as a “seller” or “innocent
2003) [02-0932]. retailer” because Crane is a manufacturer and neither
The main issue in this products liability case is the Legislature nor the courts intended the products
whether there was legally sufficient evidence that an liability indemnity law to protect manufacturers.
alleged design defect caused the death of two children in The Supreme Court granted Bostrom’s petition for
an automobile accident. The children’s grandmother review and heard argument on January 14, 2004.
sued General Motors Corporation (GM), alleging the car
they were riding in had a defectively designed fuel D. Learned Intermediary Doctrine/Sophisticated
system that caused the post-collision fire that killed the User Doctrine
children. A jury found the design defect caused one 1. Humble Sand & Gravel, Inc. v. Gomez, 48 S.W.3d
child’s death, awarded the estate $10,004,500 for pain 487 (Tex. App.–Texarkana 2001), pet. for review
and suffering, found that GM acted with malice, and granted, 45 Tex. Sup. Ct. J. 712 (May 30, 2002)
awarded $750,000 in exemplary damages. The court of [01-0652].
appeals affirmed the trial court’s judgment. GM’s The principal issues are: (1) whether the learned
petition for review also raises an issue about whether the intermediary and sophisticated user doctrines rendered
trial court erred in overruling GM’s Batson challenge Humble’s warning about the hazards of high-silica
after Iracheta used two peremptory strikes to eliminate abrasive blasting adequate as a matter of law; and (2)
two white venire members, resulting in an all-Hispanic whether the trial court prevented Humble from
jury. The Supreme Court granted GM’s petition for adequately presenting its causation defenses by excluding
review and heard argument on December 3, 2003. from evidence a portion of Gomez’s fifth amended
petition and answers to requests for admissions. Humble
C. Indemnification supplied silica sand to Spincote who used it for abrasive
1. Bostrom Seating, Inc. v. Crane Carrier Co., 89 blasting. The sand was supplied in bags that had a
S.W.3d 153 (Tex. App.–Corpus Christi 2002), pet. warning printed on them. Gomez worked for Spincote
for review granted, 47 Tex. Sup. Ct. J. 54 from 1984 to 1987. Part of his job involved sand blasting
(October 31, 2003) [02-1047]. with silica sand. Although Gomez read the warnings on
The issue presented in this products liability the bag and inquired into proper safety measures, the
indemnification case is whether a product manufacturer safety measures Spincote supplied were allegedly in
can qualify as a “seller” under section 82.001(3) of the violation of Occupational Safety & Heath Administration
Texas Civil Practice and Remedies Code or as an standards. Gomez was diagnosed with silicosis, and he
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sued Humble. At trial, Humble attempted to assert the shock the conscience, or clearly demonstrate bias.
“sophisticated user” defense. But the trial court denied When, as in this case, the jury’s failure to find greater
Humble’s request for a “sophisticated user” jury damages in more than one overlapping category is
instruction. The jury found that Humble’s warning on the challenged, the court of appeals should first determine if
bags was insufficient, and that Humble’s negligence was the evidence unique to each category is factually
the cause of Gomez’s silicosis. The trial court rendered sufficient. If it is not, the court of appeals should then
judgment accordingly. The court of appeals affirmed. consider all the overlapping evidence along with the
The Supreme Court granted Humble’s petition for review evidence unique to each category to determine if the total
and heard argument on October 30, 2002. amount awarded in the overlapping categories is factually
sufficient.
E. Physical Impairment In a concurring opinion Justice O’Neill said that the
1. Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d court of appeals clearly applied the so-called “zero
757 (Tex. September 11, 2003) [01-0007]. damages rule,” that doing so was inconsistent with Pool,
The issue in this case involving facial and eye and that the Court should have expressly disavowed the
injuries is whether the court of appeals used a proper zero-damages rule.
factual sufficiency standard of review to reverse a jury’s
zero damages award for physical impairment other than F. Stream of Commerce/Release of Product to
for vision loss. Jackson suffered an eye injury, facial Third-Party Contractor
fractures and a broken nose when his hand slipped while 1. FFE Transp. Servs., Inc. v. Fulgham, 2002 WL
he demonstrated a new sport-hunting bow. Jackson 1801596 (Tex. App.–Dallas), pet. for review
spent 12 days in the hospital and suffered vision problems granted, 46 Tex. Sup. Ct. J. 838 (June 26, 2003)
and headaches after the accident. In a lawsuit alleging [02-1097].
products liability and negligence, his medical expert The issues in this case are: (1) whether an entity
testified that surgery repaired the broken bones and that leases or relinquishes possession of a product to a
corrected a double-vision problem, but permanent third party to further its own purposes has released a
problems left Jackson with trouble doing close-up or product into the stream of commerce such that it can be
detailed work. The jury found Golden Eagle and Jackson subject to a products liability claim; (2) whether the court
both negligent and awarded Jackson damages for of appeals applied the correct standard of review in
medical expenses, pain and suffering, and vision loss, but determining the necessity of expert testimony; and
not for other physical impairment. Jackson argued that (3) whether expert testimony is necessary to establish the
his fracture injuries required the jury to find he suffered applicable standard of care and breach of the standard of
physical impairment and to award some damages for that care.
impairment. The court of appeals reversed the jury’s Larry Fulgham and FFE Transportation Services
zero damages award, reasoning that Jackson’s many (FFE) had a long-haul trucking agreement. On March 7,
facial injuries were “demonstrative of impairment beyond 1998, as Fulgham was hauling a load for FFE, the upper-
pain and suffering, loss of earning capacity and loss of coupler assembly broke from his trailer, causing the
vision.” trailer to detach from the tractor. Fulgham was injured
The Supreme Court held that the court of appeals when he lost control of the tractor and it overturned.
did not properly apply the factual sufficiency standard of Fulgham alleged that the bolts holding the upper-coupler
review set forth in Pool v. Ford Motor Co., 715 S.W.2d assembly to the base of the rail of the trailer were rusted
629 (Tex. 1986). The Court also established a factual and weakened. The Fulghams sued for negligence and
sufficiency standard of review when evidence pertains to products liability against FFE. The trial court granted
more than one element of damages. This review FFE’s motion for directed verdict, holding there was no
standard differs from the standard applied when the jury evidence of breach of duty or causation and that no
is asked to award a single amount of damages, but is told evidence showed that FFE put the trailer into the stream
that it may consider various elements in arriving at that of commerce. The court of appeals reversed and
amount. The Court said that, when only one category of remanded, holding that: (1) expert testimony was not
damages is challenged on the basis that the award in that necessary to establish the applicable standard of care;
category was zero or was too low, an appellate court (2) there was at least some evidence that FFE breached
should consider only whether the evidence unique to that its duty to inspect the trailer; and (3) the agreement
category is so against the great weight and between Fulgham and FFE constituted a lease in which
preponderance of the evidence as to be manifestly unjust,
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FFE introduced its trailer into the stream of commerce B. Condemnation/Easements
such that FFE could be held strictly liable for the defect. 1. Marcus Cable Assocs. L.P. v. Krohn, 90 S.W.3d
The Supreme Court granted FFE’s petition for 697 (Tex. November 11, 2002) [01-0291].
review and heard argument on October 29, 2003. The principal issue is whether a power-line
easement granted to an electricity cooperative can be
XXXVIII. REAL PROPERTY shared with a cable-television company for cable lines.
A. B o u n d a r y Dispute/Declaratory The Krohns, who own close to 12 acres with a power-
Action/Attorney’s Fees line easement through it, sued Marcus after Marcus
1. Martin v. Amerman, 83 S.W.3d 858 (Tex. strung cable on the co-op’s utility poles without the
App.–Texarkana 2002), pet. for review granted, Krohns’ permission. The easement permitted an
46 Tex. Sup. Ct. J. 616 (May 1, 2003) [02-0731]. “electric transmission or distribution line or system” and
This case concerns the proper action to resolve a its maintenance and provided that “whenever necessary,
boundary line dispute between adjacent private words used in this instrument in the singular shall be
properties. The Supreme Court will also consider construed to read in the plural.” Marcus argued that the
whether attorney’s fees are recoverable in such an trend in the law from other states is to allow easements
action. The Martins and Amermans own adjacent to be apportioned for cable-television providers and that
residential lots in Beaumont, Texas. The Amermans it could use the easement for its cable under TEXAS
removed the Martins’ fence, claiming it encroached onto UTILITY CODE § 181.102, which allows a cable provider
their property thirty-feet beyond the correct property line. in an unincorporated area to install and maintain a cable
Originally, the Martins filed a trespass to try title action, line “through, under, along, across, or over” utility
a request for declaratory judgment to declare the correct easements, public roads, alleys or public water. The
boundary line, a request for injunctive relief, and a Krohns countered that the trend in the law of other states
declaratory judgment action to quiet title, but they did not apply in this case because of the specific
nonsuited their trespass to try title action during trial. The language of the easement and the fact that the Utility
Amermans filed a cross action for trespass to try title and Code section applies only to public, not private, property.
injunctive relief. The jury found that the Martins’ survey The trial court granted summary judgment for Marcus.
represented the correct boundary line and that the The court of appeals reversed.
Amermans’ survey cast a cloud on the Martins’ title, and The Supreme Court held that the easement in this
awarded the Martins attorney’s fees. The trial court case, by its terms, permitted transmission facilities for
entered judgment for the Martins, granted a permanent electricity. The issue was not whether the proposed use
injunction enjoining the Amermans from entering the resulted in a material burden. While cable television may
Martins’ property as described by the Martins’ survey utilize electrical impulses to transmit communications, as
and awarded $25,000 in attorney’s fees. Marcus claimed, television transmission is not a more
The court of appeals affirmed the trial court’s technologically advanced method of delivering electricity.
judgment but modified the judgment to delete the To construe Utility Code § 181.102 to cover private
attorney’s fees award. The court of appeals determined property, as Marcus proposed, was not supported by
that attorney’s fees are not available in a suit to quiet legislative intent and could have significant implications as
title. Further, the court of appeals refused to follow the a constitutional taking.
Supreme Court’s comments in Brainard v. State, 12 Justice Hecht dissented and would have held that
S.W.3d 6, 29 (Tex. 1999), in which the Court said that a the easement in this case could be shared with a cable
declaratory judgment action is available to resolve a television provider if the servient estate was not
boundary dispute and may result in an attorney’s fee, additionally burdened. Since the easement in the present
asserting that the Court’s statements were dicta. case did not expressly allow for telephone lines, the Court
The Supreme Court granted Martin’s petition to concluded that it did not permit any use for purposes of
decide whether a declaratory judgment action is a proper communication. But electric power is used for
means to resolve a dispute over the correct boundary line communication in the sense that neither a television nor
between adjacent properties, and whether attorney’s fees a telephone will operate without it. According to Justice
are available in such a suit. The Court heard argument Hecht, it is not true that an easement for telephone wires
on October 1, 2003. contemplates the use of communication devices and an
easement for electric current does not.
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2. Hubenak v. San Jacinto Gas Transmission Co., 65 approximately 194 acres of undeveloped land in Glenn
S.W.3d 791 (Tex. App.–Houston [1st Dist.] 2001) Heights. This property is part of a 240-acre tract known
[02-0213] , pet. for review granted and as Planned Development District 10 (“PD 10”). The
consolidated for oral argument with Hubenak v. property was zoned in 1986 for high density, single-family
San Jacinto Gas Transmission Co., 65 S.W.3d 791 residential uses of primarily 6,500 square feet.
(Tex. App.–Houston [1st Dist.] 2001) [02-0214], In 1995, the City adopted a “unified development
Wenzel v. San Jacinto Gas Transmission Co., 65 code” (“the code”) and rezoned all properties in the city,
S.W.3d 791 (Tex. App.–Houston [1st Dist.] 2001) except the fourteen PDs, to lot sizes of primarily 20,000
[02-0215], Kutach Family Trust v. San Jacinto Gas square feet. PD 10 was one of the fourteen districts not
Transmission Co., 65 S.W.3d 791 (Tex. rezoned. The code stated that the PDs’ zoning would be
App.–Houston [1st Dist.] 2001) [02-0216], Cusack carried forth in full force and effect. In 1996, the City
Ranch Corp. v. MidTexas Pipeline Co., 71 S.W.3d began the process of rezoning the PDs to lower
395 (Tex. App.–Corpus Christi 2001) [02-0217], development density and achieve a greater consistency
MidTexas Pipeline Co. v. Dernehl, 71 S.W.3d 852 between the PDs and the code. During that summer,
(Tex. App.–Texarkana 2002) [02-0320], MidTexas Sheffield entered into a contract to purchase the property
Pipeline Co. v. Wright, 2002 WL 264833 (Tex. at issue. Prior to closing, Sheffield conducted a due
App.–Texarkana 2002) [02-0321], MidTexas diligence investigation and explored with city officials the
Pipeline Co. v. Wright, 2001 WL 1636640 (Tex. possibility that the property would be rezoned. In
App.–Texarkana 2001) [02-0326], and Cusack v. November 1996, Sheffield closed on the property. On
MidTexas Pipeline Co., 2002 WL 368639 (Tex. January 6, 1997, the City Council enacted a thirty-day
App.–Corpus Christi 2002) [02-0359], pets. for development moratorium which prohibited the filing and
review granted, 46 Tex. Sup. Ct. J. 237 (December acceptance of plats while the City completed the PD
12, 2002). rezonings. The moratorium was extended a number of
These consolidated pipeline-condemnation cases times, finally terminating on April 27, 1998, when the City
involve the construction of Texas Property Code downzoned Sheffield’s property from 6,500 to 12,000
§ 21.012(b), which requires a party seeking square foot lots.
condemnation to file a petition that includes, among other Sheffield sued Glenn Heights, asserting that the
things, a statement that the condemning entity and the moratorium and subsequent downzoning of the property
landowner are “unable to agree” on damages. The were takings requiring adequate compensation from the
issues raised are: (1) whether the“unable to agree” city. In a bifurcated trial, the trial court held that the
requirement is a jurisdictional prerequisite to suit or a city’s downzoning, but not the moratorium, was a taking
statutory prerequisite; (2) whether pre-suit negotiations of Sheffield’s property without compensation, for which
must have been conducted “in good faith” and be the jury later awarded damages of $485,000. The court
accompanied by a “bona fide” offer to comply with the of appeals held that the downzoning substantially
“unable to agree” requirement; and (3) whether the advanced a legitimate governmental interest, but it held
condemning entity can satisfy the “unable to agree” that the downzoning nevertheless constituted a taking
requirement by negotiating to purchase only those rights under the “unreasonable interference” test articulated in
the entity is legally entitled to condemn and ultimately Mayhew v. Town of Sunnyvale, 964 S.W.2d 922 (Tex.
seeks to condemn. The Supreme Court granted the 1998). The court reasoned that the downzoning
parties’ petitions for review and heard argument on interfered with Sheffield’s distinct investment-backed
February 19, 2003. expectations, and that a 38% diminution in the property’s
value satisfied the economic impact prong of Mayhew’s
C. Condemnation/Taking test. The court of appeals held that the moratorium was
1. Sheffield Dev. Co., Inc. v. City of Glenn Heights, 61 a taking as well. The court rendered judgment that the
S.W.3d 634 (Tex. App.–Waco 2001), pet. for City compensate Sheffield for this temporary taking and
review granted, 45 Tex. Sup. Ct. J. 996 (July 3, remanded the issue of damages to the trial court.
2002) [02-0033]. Glenn Heights filed a petition for review in the
The issue is whether the City of Glenn Heights’ Supreme Court, arguing that the downzoning and
moratorium on development and subsequent downzoning moratorium were not takings under Mayhew, and
of Sheffield Development Company’s property Sheffield filed a petition arguing that the court of appeals
constituted a taking requiring compensation under the was wrong to hold that the City’s downzoning
Texas Constitution. In 1996, Sheffield purchased substantially advanced a legitimate governmental interest.
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The Supreme Court granted both parties’ petitions for plaintiffs’ ranch; (2) whether the trial court erred by not
review and heard argument on October 30, 2002. bifurcating the trial of this case; and (3) whether plaintiffs
failed to prove an intentional taking for public use. In
2. Town of Flower Mound v. Stafford Estates Ltd. 1991, plaintiffs brought this action against the District
P’ship, 71 S.W.3d 18 (Tex. App.–Fort Worth 2002), claiming that the District, by its intentional actions, caused
pet. for review granted, 46 Tex. Sup. Ct. J. 244 their properties to be subjected to increased flooding.
(December 12, 2002) [02-0369]. The District objected to scientific evidence plaintiffs
The principal issues are: (1) whether the rough offered and asserted that any claims alleged were
proportionality standard in Dolan v. City of Tigard, 512 actually negligence claims rather than inverse
U.S. 374 (1994), applies to all development conditions or condemnation claims. The trial court overruled the
only to conditions requiring the property’s dedication to District’s objections and, based on the jury’s findings,
public use; (2) whether Dolan’s standard applies to all awarded a “permanent and perpetual flowage
development determinations or only to adjudicative easement,” plus $10,214,422 in damages. The court of
decisions; (3) whether Flower Mound’s requirement that appeals affirmed. The Supreme Court granted Tarrant
the developer reconstruct and improve an abutting street Regional Water District’s petition for review and heard
constituted a taking under the Dolan standard; and (4) argument on October 16, 2002.
whether the developer was the prevailing party to
recover attorney’s fees and expert-witness fees under 42 2. Tex. Dept. of Transp. v. City of Sunset Valley, 92
U.S.C. §§ 1983 and 1988. S.W.3d 540 (Tex. App.–Austin 2002), pets. for
Flower Mound approved Stafford’s plat application review granted, 47 Tex. Sup. Ct. J. 127 (Dec. 12,
for a residential subdivision on the condition that Stafford 2003) [03-0041].
upgrade an existing abutting road, owned by the town, T he principal issues presented are whether a
from asphalt to concrete. The upgrade was completed municipality can assert an inverse condemnation claim
at Stafford’s expense. Flower Mound’s Land against the State under either the Transportation Code or
Development Code requires all developers to upgrade the Texas Constitution and whether residents of that
abutting streets when those streets do not meet Flower municipality can raise equal protection challenges against
Mound’s minimum standards. Flower Mound denied the State based on the Texas Department of
Stafford’s request for a variance. Stafford filed suit, Transportation’s construction of a highway. As part of
claiming that the plat approval condition was an an expansion of Highway 290, TxDOT occupied and
unconstitutional taking under both the Texas and United destroyed a portion of Jones Road in Sunset Valley, a
States Constitutions. The trial court agreed with Stafford small general-law municipality. Sunset Valley brought
and awarded 87.8% of the total cost of improvements, as various claims against TxDOT including nuisance and
well as attorney’s fees. The court of appeals held that inverse condemnation under the Transportation Code,
the plat condition was unconstitutional under the Texas common law, and Texas Constitution, seeking the cost of
Constitution, but it reversed the award of attorney’s fees a substitute road. TxDOT filed a plea to the jurisdiction
because Stafford recovered under the Texas Constitution based on sovereign immunity. The trial court denied the
rather than the United States Constitution, thereby plea and the court of appeals affirmed. On remand, the
rendering 42 U.S.C. § 1988(b) inapplicable. The city’s mayor and one council member intervened against
Supreme Court granted both Flower Mound’s and TxDOT, alleging equal protection violations.
Stafford’s petitions for review and heard oral argument The trial court rendered judgment against TxDOT,
on March 5, 2003. awarding damages to the city for inverse condemnation
and violations of the Transportation Code and granting
D. Inverse Condemnation declaratory relief based on violations of various
1. Tarrant Reg’l Water Dist. v. Gragg, 43 S.W.3d 609 environmental regulations. The trial court also granted
(Tex. App.–Waco 2001), pet. for review granted, injunctive relief to the city and the intervenors on their
45 Tex. Sup. Ct. J. 813 (June 13, 2002) [01-0362]. nuisance claims and awarded attorney’s fees,
The principal issues in this inverse condemnation prejudgment interest, and costs. Without addressing the
case are: (1) whether plaintiffs’ evidence was legally common law or constitutional grounds, the court of
sufficient to support the trial court’s conclusion that the appeals affirmed the trial court’s judgment that Sunset
Tarrant Regional Water District’s releases from a Valley was entitled to compensation for the taking of
reservoir during heavy rainfall and flooding caused flood J ones Road under the Transportation Code. The Court
damage that occurred 8 to 25 miles downstream at of Appeals reversed the trial court’s grant of declaratory
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relief regarding TxDOT’s violations of the administrative G. Subsequent Purchasers/Prior Contractual
code, reversed the damage award, and remanded the Obligation
case for a determination of compensation by the Texas 1. N.P., Inc. v. Turboff, 111 S.W.3d 40 (Tex. May 22,
General Land Office as provided in the Transportation 2003) [01-1167].
Code. The principal issue is whether a developer who lost
The Supreme Court will hear argument in this case property after defaulting on his loan or the company that
on February 4, 2004 later bought the property is entitled to a municipal utility
district’s payment for utility improvements on the
E. Landlord-Tenant/Duties Owed By Landlord property. In this case, Turboff sued to declare his right
1. Shell Oil Co. v. Khan, 71 S.W.3d 890 (Tex. to be reimbursed for the improvements, claiming it came
App.–Texarkana 2002), pet. for review granted, from the settlement of a dispute with the lender over the
46 Tex. Sup. Ct. J. 246 (December 12, 2002) loan default just before the lender went into receivership.
[02-0401]. In that settlement, the lender retained title to the
The issue in this personal injury case is what legal development property and utility facilities but gave up any
duties a lessor owes when the lessor retains some right claim to reimbursement costs by the utility district. N.P.,
to control the security on leased property. Shell Oil which later acquired title to the property, claimed it had
Company owned a service station that it leased to L.A. rights to the utility district’s payment under a later
Sani, Inc. Saleem Syed owned L.A. Sani, Inc. and agreement with the utility district. The trial court
managed the station. Mohamed Khan was employed by determined that Turboff was entitled to the
L.A. Sani, Inc. to operate the station. Khan alleged that reimbursement. The court of appeals affirmed.
he was shot at the station by an armed robber who T he Supreme Court reversed and rendered
emerged from an unlighted area of the station while judgment, holding that N.P., the subsequent purchaser,
Khan was outside. Khan and Jamila Williams sued Shell, held a property right in the utility facilities and, by virtue
seeking damages for Khan’s injuries and claiming of its contract with the municipal utility district, had a
improper security precautions. The trial court granted contractual right to reimbursement for the facilities. The
summary judgment for Shell. The court of appeals interest Turboff attempted to enforce against N.P. was
reversed and remanded, concluding that there was some simply an interest in a contract that Turboff could not
evidence of facts that may have imposed a duty on Shell now honor. Because Turboff had no right to
based on the contract between Shell and L.A. Sani, Inc. reimbursement, he had no claim to force N.P. to transfer
The Supreme Court granted Shell’s petition for review title for the facilities to the district.
and heard oral argument on March 5, 2003.
H. Wrongful Condemnation/Damages
F. Maintenance Fees 1. Pinnacle Gas Treating, Inc. v. Read, 104 S.W.3d
1. Brooks v. NorthGlen Ass’n, 76 S.W.3d 162 (Tex. 544 (Tex. April 17, 2003) [02-0169].
App.–Texarkana 2002), pet. for review granted, This case involved two suits for wrongful
46 Tex. Sup. Ct. J. 426 (February 13, 2003) condemnation and possession of utility and construction
[02-0492]. easements. The condemnor had obtain a writ of
The issue of first impression in this case is the possession for the easements, but the writ was
statutory interpretation and constitutionality of Chapter subsequently dissolved and a trial was had on the
204 of the Property Code as it applies to certain deed condemnee’s claims for wrongful condemnation and
restrictions for a subdivision in Harris County. possession under the dissolved writ. Shortly before the
Homeowners sued their homeowners association for a trial, the condemnor instituted a second condemnation
declaratory judgment to determine the application proceeding and obtained a second writ of possession for
Chapter 204 of the Property Code to maintenance fees the easements. After a final judgment was entered on
designated in the homeowners agreement. the condemnee’s damages in the first condemnation
T he Supreme Court granted the homeowners’ proceeding, the condemnor appealed, arguing among
petition for review and heard argument on September 3, other things that the original writ of possession was
2003. wrongfully vacated. The court of appeals declined to
consider the merits of the condemnor’s claim on
mootness and equity grounds.
The Supreme Court held that the court of appeals
should have addressed the issue because the court’s
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disposition of the matter would affect the parties’ interest Structural Wood, a subcontractor working for Page’s
in the judgment on the condemnee’s claims for wrongful original contractor, filed a mechanic’s and materialman’s
condemnation and possession. lien affidavit 31 days after Page terminated the original
contractor. Under the Texas Property Code, a lien
XXXIX. REMEDIES affidavit must be filed “not later than the 30th day after
A. F o r e c l o s u r e / E x p e r t Testimony On the work is completed.” The trial court found Structural
Replacement Value/Fraudulent Transfers Wood’s liens valid and ordered foreclosure. The court of
1. First Nat’l Bank of Seminole v. Hooper, 104 S.W.3d appeals affirmed the liens’ validity.
83 (Tex. February 13, 2003) [01-0688]. The Supreme Court reversed, holding that the
The issue is whether a “fraudulent transfer” occurs affidavit was not filed on time under the statute. The
when an insolvent debtor’s deed of trust to secure an Court reasoned that the statute’s reference to work
existing debt is for a value ostensibly more than completed must be defined in relation to a particular
reasonably equivalent to what the debtor owed. In this contract. In this case, work was completed under the
case, Hooper won a $1 million judgment against the original contractor’s contract when it was terminated.
debtor, Thornton, for fraud. Before Hooper moved to According to the Court, the history of the mechanic’s lien
collect the judgment, the bank, which loaned money for statute demonstrated the Legislature’s intent to make the
Thornton’s gas-pipeline project, got Thornton to execute 10 percent “retainage” requirements dependent on
a backdated deed of trust on pipeline assets–easements individual contracts. Rather than be left to guess at the
and rights-of-way contracts–the bank had not secured contract’s completion, the Court said that prudent
when it loaned Thornton money to buy the pipeline and claimants would file their liens no later than 30 days after
took other pipeline assets as collateral. The bank then they finish their own work.
recorded its deed of trust before Hooper recorded notice In dissent, Justice Enoch, joined by Justice
of his judgment. The bank later foreclosed. Hooper Jefferson, asserted that the mechanic’s lien statute
sued the bank for fraudulent transfer, seeking to void the should be liberally construed to protect the artisan,
deed of trust. The jury found that Thornton, insolvent at laborer, and materialman. Under such a construction,
the time he executed the deed of trust, intended the J ustice Enoch argued that the statutory language clearly
transfer to hinder, delay or defraud Hooper and that it and unambiguously supported Structural Wood’s claim
was not for reasonably equivalent value. The trial court that it timely filed its lien affidavit because it filed the
rendered a $700,000 judgment against the bank. The affidavit well before work was completed on the project.
court of appeals affirmed.
The Supreme Court reversed and rendered 2. Page v. Marton Roofing, Inc ., 102 S.W.3d 733
judgment in favor of the bank, holding that the transfer (Tex. April 3, 2003) [02-0845].
was not an asset subject to a dispute over its value, but a This case involves the same issue and similar facts
lien that had a defined value when it was created. The as Page v. Structural Wood Components (supra).
deed of trust did not convey the pipeline to the bank, but Specifically, whether a subcontractor timely filed its
merely perfected a security interest in the pipeline to the mechanic’s and materialman’s liens under the Property
amount of Thornton’s debt. The transferred asset’s Code’s retainage and “fund-trapping” provisions. In this
value was no more than what it secured–Thornton’s pre- case, Marton, hired by Page’s original contractor, filed a
existing debt. In so holding, the Court relied on the lien affidavit two months after the original contractor’s
Uniform Fraudulent Transfer Act, upon which Texas law job was terminated. Marton argued that it was entitled to
is based. a lien on Page’s property because Page paid money to
the replacement contractors after receiving notice that
B. Foreclosure/Materialman’s Lien/Time for the original contractor had failed to pay Marton. The trial
Filing court granted summary judgment in Marton Roofing’s
1. Page v. Structural Wood Components, Inc., 102 favor, awarding $26,892.75 in damages, additional
S.W.3d 720 (Tex. April 3, 2003) [01-1122]. prejudgment interest and attorney’s fees, and foreclosure
In this case, the Supreme Court considered whether of Marton Roofing’s liens against Page’s property. The
the 30-day deadline for filing a “mechanic’s lien” was court of appeals affirmed the judgment on two grounds,
triggered by the original contract’s termination date or the holding that (1) Marton Roofing timely perfected a lien on
date the entire project was completed. The dispute arose Page’s statutory retainage, as it filed its lien affidavit
when Page terminated a renovation contractor, then hired within thirty days of the time that the replacement
substitute contractors to complete the renovation. contractors finished the project, and (2) Marton Roofing
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held a valid fund-trapping lien pursuant to section 53.081 B. Settlement Credits
of the Property Code. 1. Battaglia v. Alexander, 93 S.W.3d 132 (Tex.
The Supreme Court reversed, holding that Marton’s App.–Houston [14th Dist.] 2002), pet. for review
mechanic’s lien failed under Structural Wood granted, 46 Tex. Sup. Ct. J. 781 (June 12, 2003)
Components and that its attempt to perfect a fund- [02-0701].
trapping lien failed for similar reasons. The Court also The issues are (1) whether legally sufficient
noted that Page could not be liable under the fund- evidence supported a negligence finding against two
trapping statute for any funds paid to the replacement anesthesiologists’ professional associations despite a
contractors. According to the Court, the statutory failure to find either doctor negligent; (2) how to allocate
fund-trapping provision allows subcontractors to “trap, in settlement credits between past and future damages
the owner’s hands, funds payable to the general absent an allocation in the settlement agreement and
contractor if the owner receives notice from the whether the trial court properly calculated prejudgment
subcontractors that they are not being paid.” But it was interest before applying the settlement credits; and
undisputed that Page neither made nor owed any further (3) whether the professional associations are jointly and
payments to Marton’s general contractor at any time severally liable for the judgment or vicariously liable for
after Page received notice of Marton’s lien. Because each others’ negligence under a joint-venture theory.
fund-trapping liens, like retainage liens, must be judged in In this case, Mark Alexander was injured and
relation to individual original contracts, Page was not ultimately died after receiving anesthesia during a routine
authorized to withhold funds from the replacement out-patient surgery. His family sued TOPS Surgical
contractors who had no relationship to Marton. Specialty Hospital, Drs. Carl Battaglia and Tommy Polk
Justice Enoch concurred on the fund-trapping issue, and their respective professional associations, a nurse,
but dissented on the retainage lien issue for the reasons and Dr. Laverna Jane Crowder. Before trial, the hospital
discussed in his Structural Wood Components dissent. and the nurse settled with the Alexanders. The trial
court granted a directed verdict in favor of Dr. Polk.
XL. SETTLEMENTS The jury found Dr. Battaglia was not negligent and
A. Authority of Guardian Ad Litem allocated liability between the nurse, Dr. Crowder, and
1. In re Kan. City S. Indus., Inc., argument granted the two professional associations. The court of appeals
on pet. for writ of mandamus, 46 Tex. Sup. Ct. J. affirmed, holding that (1) the evidence was sufficient to
1058 (August 28, 2003) [03-0179]. support the jury’s finding that the professional
This case involves several issues regarding the associations were negligent; (2) the professional
authority of a guardian ad litem to approve and accept associations were jointly and severally liable under
settlement agreements and releases for minors whose proportionate liability statute; and (3) prejudgment interest
existence or whereabouts are unknown. In a multi- should be calculated on the amount of past damages.
plaintiff lawsuit concerning injuries sustained from a The Supreme Court granted Battaglia’s petition for
chemical leak, the trial court approved a settlement review and heard argument on October 15, 2003.
agreement between approximately 1,108 minor plaintiffs
and Relator, Kansas City Southern Industries (“KCSI”). 2. Roberts v. Williamson [01-0766], consolidated with
At the settlement conference, however, it became Williamson v. Roberts [01-0765], 111 S.W.3d 113
apparent that 381 of those minors could not be located. (Tex. July 3, 2003).
The trial court ordered the settlement funds for those The principal issues in this medical malpractice case
children to be paid into the registry of the court in an are whether parents can recover damages for their own
“Interlocutory Final Judgment”. KCSI then sought loss of consortium with a child who has suffered a
mandamus relief on the ground that the trial court abused nonfatal injury and whether settlement credits must be
its discretion by approving the settlement on behalf of deducted from the jury’s damages award before a
minors who could not be located. The Supreme Court nonsettling defendant’s proportionate liability is
heard argument in this original proceeding on November calculated. When the Williamsons’ daughter was born,
12, 2003. she went into distress. During her treatment, the parents
claimed, the proper medicine was not used and the
ventilator to help the child breathe did not work for
several minutes. The child suffered brain damage,
resulting in, among other things, seizures, a weak left
side, walking problems that require her to use braces, and
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developmental problems. The Williamsons sued the XLI. STATUTE OF LIMITATIONS
hospital and several doctors, including Dr. Roberts. The A. Service of Citation/Intervenors
hospital and two doctors settled their cases before trial. 1. Baker v. Monsanto Co., 111 S.W.3d 158 (Tex. July
At trial, a jury decided one doctor was not responsible 3, 2003) [02-0603].
and found Dr. Roberts’s liability amounted to 15 percent. The issue in this case is whether intervenors in a
The trial court ordered Dr. Roberts to pay $451,500 out lawsuit must serve citation on a defendant to stop the
of the jury’s total award of just over $3 million. The statute of limitations from running on their claims when
court of appeals affirmed. the intervention is filed before the defendant has
The Supreme Court held that parents cannot appeared to answer the plaintiffs’ original petition. After
recover for loss of consortium for a child who suffered the plaintiffs filed their original petition, but before the
a non-fatal injury. In so holding, the Court distinguished defendant was served, the intervenors petitioned the
Reagan v. Vaughn, 804 S.W.2d 463, 468 (Tex. 1990), in court to intervene. Although intervenors promptly
which the Court had previously held that a child is entitled notified defendant’s counsel of their intentions, they did
to seek damages for loss of consortium when a parent not serve citation on the defendant. Two years later, the
suffers a serious, permanent and disabling injury, because defendant moved for summary judgment against the
the child’s role in the parent-child relationship, unlike the intervenors, asserting limitations. The trial court granted
parent’s role, is vulnerable and dependent and profound the motion, and the court of appeals affirmed.
harm might befall a child who has been deprived of a The Supreme Court held that the intervenors’ claims
parent’s love, care, companionship and guidance. The were not barred by limitations. The Court noted that an
Court also noted that several other states–including the intervention typically involves a claim against parties who
first two that recognized a child’s consortium rights–have have already appeared. Under such circumstances, the
held that the parent-child relationship is not reciprocal like plea in intervention is properly served by any of the
husband and wife and that the child needs special methods provided in Rule 21a. But when an intervenor
protection. Because the parent has a less dependent role seeks affirmative relief against a defendant who has not
than that of the child in the relationship, extending appeared at the time the intervention was filed, service of
consortium rights here could logically lead to the citation is necessary against the defendant, absent a
recognition of such rights in other nondependent relatives subsequent appearance by the defendant. In this case,
or even in close friends, given appropriate facts. Texas because the defendant made a general appearance in the
and no other state have gone so far. The Court also held case after the intervention was filed but before limitations
that the trial court did not err in applying the settlement had run on the intervenors’ claims, the intervenors’ action
credits or calculating Dr. Roberts’s proportionate liability. was not time barred.
In dissent, Justice Jefferson, joined by Justices
O’Neill and Schneider, said that the Court’s holding that XLII. TEXAS SOLID WASTE DISPOSAL ACT
parents may not recover for loss of filial consortium is A. “Arranger” Liability
contrary to the Court’s longstanding precedent, counter 1. R.R. Street & Co. v. Pilgrim Enter., Inc., 81 S.W.3d
to the majority of jurisdictions that have considered the 276 (Tex. App.–Houston [1st Dist.] 2001), pet. for
issue, and unduly tolerant of the anomaly the Court’s review granted, 47 Sup. Ct. J. 105 (Nov. 21, 2003)
decision creates in the law. Moreover, Justice Jefferson [02-0758].
said, the theme underlying the Court’s decision–that a The issue of first impression in this case is the
parent’s loss of consortium claim must be rejected proper interpretation of the Texas Solid Waste Disposal
because adults require less protection than Act as applied to a party liable for having “arranged for”
children–makes little sense in light of the Court’s the disposal of solid waste. Pilgrim Enterprises, Inc., an
repeated declarations that parents may recover operator of numerous dry-cleaning plants, brought a cost
consortium damages for the death of their children, and recovery action against R.R. Street seeking its
its holding in Reagan that even adult children are entitled environmental cleanup costs under section 361.344 of the
to consortium damages for the death of, or serious injury Solid Waste Disposal Act. T EX. HEALTH & SAFETY
to, their parents. CODE § 361.344. In a long standing business relationship,
R.R. Street supplied Pilgrim with the dry-cleaning solvent
perchloroethylene (PCE). The trial court held that
Pilgrim was entitled to contribution under the Act as a
matter of law and awarded Pilgrim $1.5 million. The
court of appeals agreed that, as a matter of law, R.R.
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Street was liable because it “arranged for” the disposal claim within six months of the accident as required by the
of solid waste at Pilgrim’s facilities. Specifically, the Texas Tort Claims Act. Simons, a Department inmate,
court of appeals concluded that R.R. Street obtained was injured while on work detail with a crew to mount a
“arranger” status by providing technical advice and guard rail. The Department conducted an investigation
services and by having an employee demonstrate disposal after the accident, interviewing Simons and all eye
by pouring the mixture down Pilgrim’s sinks and w itnesses. It is undisputed that Simons waited nearly
commodes. The court of appeals held, however, that the two years to file suit against the Department and did not
amount of the award must be determined by a jury and, give the Department formal notice of his claim within six
thus, reversed the award for contribution. months of the accident as required by the Texas Tort
The Supreme Court heard argument on R.R. Claims Act. An exception to the formal notice
Street’s petition for review on January 14, 2004. requirement applies if the Department had “actual
notice,” the parameters of which were explored in
XLIII. TEXAS TORT CLAIMS ACT Cathey v. Booth, 900 S.W.2d 339, 341 (Tex. 1995). The
A. Governmental “Employee” trial court denied the Department’s plea to the
1. Murk v. Scheele S.W.3d , 47 Tex. Sup. Ct. J. jurisdiction. The court of appeals affirmed, holding that
88 (November 7, 2003) [01-0205]. Simons had satisfied the contested second prong of the
The principal issue is whether a physician who Cathey requirements by showing that the Department
exercises independent judgment in treating patients can had knowledge of its alleged fault after the investigation.
be a governmental-entity employee within the meaning of The Supreme Court granted the Department’s
the Texas Tort Claims Act. In this case, the Scheeles petition for review to determine whether Cathey applies
sued over treatment at University Hospital in San and, if so, whether the Cathey requirements for actual
Antonio by a staff neurosurgeon and chief neurosurgery notice were satisfied in this case. The Court heard
resident with the University of Texas Health Science argument on September 24, 2003.
Center. Murk, the neurosurgeon, and Flangas, the chief
resident, moved for summary judgment after the trial 2. Univ. of Tex. Southwestern Med. Ctr. at Dallas v.
court granted the university’s summary-judgment motion Loutzenhiser, 2002 WL 1565742 (Tex. App.–Dallas
on immunity. They argued that they were immune, based 2002), pet. for review granted, 47 Tex. Sup. Ct. J.
on section 101.006 of the Tort Claims Act, which bars an 2 (October 3, 2003) [02-0894].
action against an “employee” of an immune In this case, the Supreme Court will consider
governmental unit involving the same subject matter. whether compliance with the mandatory written notice
The trial court granted their motion, but the court of provision of the Texas Tort Claims Act is a jurisdictional
appeals reversed in a divided decision. prerequisite to suit under the Act, and whether notice
The Supreme Court held that Murk, whose sole must be given within six months of the alleged injury.
compensation came from the university, was an The doctors at the defendant medical center performed
“employee” as defined by the Tort Claims Act, but that two in utero diagnostic tests on Loutzenhiser’s son
Flangas, whom the university did not compensate, was almost seven months before his birth. The child was
not. The Court said the Act’s definition of an employee later born with a severely deformed left hand. Sixteen
does not require that a governmental unit control every days after the birth, Loutzenhiser’s husband informed the
detail of a person’s work, and the record demonstrated medical center of the deformity. He contends a medical
that Murk’s medical decisions were subject to regimens center repres entative told him the deformity could not
prescribed by the university, to faculty supervision, and to have resulted from the in utero testing. More than two
review (and in some instances veto) by the university’s years later, the Loutzenhisers sued the Center alleging
senior faculty. medical malpractice based on the pre-natal testing. In
ruling on the medical center’s plea to the jurisdiction, the
B. Notice of Claim trial court concluded that the Loutzenhisers’ failure to
1. Tex. Dep’t of Criminal Justice v. Simons, 74 S.W.3d comply with the Tort Claims Act’s notice provision did
138 (Tex. App.–Beaumont 2002), pet. for review not deprive it of jurisdiction, and the court of appeals
granted, 46 Tex. Sup. Ct. J. 584 (April 17, 2003) affirmed.
[02-0479]. The Supreme Court heard argument in this case on
The issue is whether the Department had actual January 7, 2004.
notice of an injured inmate’s claim against it despite the
fact that the inmate did not provide formal notice of his
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C. Notice of Claim/Minors The Supreme Court reversed and rendered
1. Martinez v. Val Verde Reg’l Med. Ctr., 110 S.W.3d judgment in favor of the banks, holding that section
480 (Tex. App.–San Antonio 2003), pet. for review 113.059 of the Trust Code applies to trusts created under
granted, 47 Tex. Sup. Ct. J. 2 (October 3, 2003) Chapter 142 of the Property Code and the Trust Code
[03-0611]. allows an exculpatory clause to relieve a corporate
In this case, the Supreme Court will determine trustee from liability for self-dealing (defined as
whether a minor plaintiff must comply with the six-month misapplying or mishandling trust funds), unless those
notice provision in the Texas Tort Claims Act. The activities violate the prohibitions in sections 113.052 and
plaintiff parents sued Val Verde County Hospital District 113.053 of the Code. Realizing an investment tax loss
d/b/a Val Verde Regional Medical Center on behalf of and assessing fees in connection with the bank swap was
their minor daughter, but did not give notice to Val Verde not evidence of gross negligence, fraud, or bad faith
within 6 months of the date of their daughter’s alleged under the Grizzle Trust, which gave its trustee broad
injury, as required by the Tort Claims Act. Val Verde authority to manage the trust, including the authority to
filed a plea to the jurisdiction based on noncompliance sell assets and reinvest them. The Grizzle Trust also
with the notice provision. The trial court granted the recognized that such transactions may produce tax
motion and dismissed the case for want of jurisdiction. consequences and result in fees being charged to the
On appeal, the Court of Appeals held that a motion for trust.
summary judgment, rather than a plea to the jurisdiction,
was the proper vehicle for Val Verde’s challenge. The XLV. UNIFORM COMMERCIAL CODE
Court of Appeals then held, however, that the child’s A. Open Price Term
minority status did not toll the notice provision and that 1. Shell Oil Co. v. HRN, Inc., 102 S.W.3d 205 (Tex.
failure to follow the notice provision was grounds for App.–Houston [14th] 2003), pet. for review
dismissal. granted, Tex. Sup. Ct. J. (December 19, 2003)
The Supreme Court heard argument in this case on [03-0555].
January 7, 2004. The issue in this case is whether section 2.305(b) of
the Texas Business and Commerce Code, which requires
XLIV. TRUSTS open price terms to be set in good faith, is automatically
A. Fiduciary Duty/Breach s atisfied when a gasoline wholesaler sets its dealer pric e
1. Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d within a range of prices charged by competitors. HRN,
240 (Tex. December 31, 2002) [01-0211]. Inc. and the other plaintiffs are “lessee dealers” in 17
The principal issues are: (1) whether, as the result different states that lease service stations from Shell and
of a bank exchange, the banks can be held liable when a operate them as independent businesses, primarily in
trust in one bank allegedly lost money because of metropolitan areas. As part of their agreements with
asserted self-dealing when investments were sold Shell, the lessee dealers agreed to buy Shell-branded
pursuant to federal law to establish an investment gasoline from Shell at the “dealer prices . . . in effect” at
account in one of the newly acquired banks; and (2) the time of purchase (the “dealer tank wagon price” or
whether a settlement offer established an absolute the “DTW price”). Because the DTW price is an open
defense to a deceptive trade practices claim. Grizzle price term, it is governed by Section 2.305(b) of the
brought a class action in part for breach of contract and Texas Business and Commerce Code. In this lawsuit,
breach of fiduciary duty, as well as deceptive trade the plaintiffs allege that Shell violated section 2.305 by
practices, against Texas Commerce Bank and Frost failing to set the DTW price in good faith. Shell moved
Bank. These claims arose when Texas Commerce for summary judgment, arguing that its prices are set in
traded a Corpus Christi bank to Frost in exchange for a good faith as a matter of law because the prices fall
bank in Dallas. Grizzle asserted that her son’s trust lost within the range of its competitors. The trial court
value in the Dallas bank in part because proceeds from granted Shell’s motion for summary judgment, but the
the former account were not reinvested for forty-two court of appeals reversed, relying heavily on Mathis v.
days and because the son’s trust was charged improper Exxon Corp., 302 F.3d 448 (5th Cir. 2002), in which the
fees and expenses attributed to liquidating the Fifth Circuit held that the issue of good faith under
investments in the former account. The trial court section 2.305(b) is a jury question.
granted summary judgment to the banks, and the court of The Supreme Court granted the Shell’s petition for
appeals reversed. review and will hear argument February 4, 2004.
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XLVI. UTILITIES B. Refunds to Customers for Unauthorized
A. Electric/Cooperative Owning For-Profit Charges
Subsidiary 1. Lakeshore Util. Co. v. Tex. Natural Resource
1. HILCO Elec. Coop., Inc. v. Midlothian Butane Gas Conservation Comm’n, 92 S.W.3d 556 (Tex.
Co., 111 S.W.3d 75 (Tex. July 3, 2003) [01-0336]. App.–Austin 2002), pet. for review granted, 46
The issue is whether state law permits a non-profit Tex. Sup. Ct. J. 1058 (August 28, 2003) [02-0988].
electric cooperative to own a for-profit subsidiary butane This case concerns the legal sufficiency of evidence
business. Midlothian Butane and five other HILCO supporting a finding that a utility company “knowingly”
cooperative members sued the cooperative to declare violated the Texas Water Code and presents the issue of
HILCO’s for-profit butane business invalid, claiming the whether a trial court pursuant to T EXAS WATER CODE §
state’s Electric Cooperative Corporation Act (ECCA), 13.411(a) may require a utility company to issue refunds
providing for rural electricity service, limits rural for unauthorized charges without the issuance of a
cooperatives to non-profit ventures. A 1997 amendment regulating agency’s order to that effect.
giving cooperatives authority for “other or additional Lakeshore Utility Company, Inc., a regulated public
purposes” described in the state’s law governing non- water and sewer utility, services residents of two
profit corporations, they argued, did not authorize subdivisions near Athens, Texas. Lakeshore requested
cooperatives to set up for-profit businesses–a power approval from the Public Utility Commission, predecessor
other non-profit companies have. The trial court granted agency to Texas Natural Resources Conservation
summary judgment for HILCO and the court of appeals Commission, to increase its monthly service rate and tap
reversed. fees. The Commission denied Lakeshore’s request
The Supreme Court affirmed, holding that because Lakeshore had increased its rates above the
(1) HILCO failed to conclusively establish that the approved amount during the pendency of their
creation and ownership of a for-profit propane business application. The Commission also ordered Lakeshore to
furthered a proper purpose for a cooperative created refund customers for the monies charged in excess of the
under the ECCA and (2) the Act entitles an electric approved rate during the pendency period.
cooperative to create and own a for-profit company if Lakeshore sought judicial review of the
necessary, convenient or appropriate to effectuate the Commission’s order, and the Commission sought judicial
Act’s permitted purposes–rural electrification or enforcement of the order, the enjoinment of Lakeshore
purposes such as those listed in the Texas Non-Profit from committing future violations, and the imposition of
Corporation Act (article 1396-2.01(A)), which includes civil penalties. In a bifurcated trial, the trial court
the general classification of “any lawful purpose” plus a affirmed the Commission’s order, enjoined Lakeshore
list of twenty-one specific, permitted purposes. The from applying an unapproved rate, required Lakeshore to
Court stated that the ECCA grants electric cooperatives issue refunds for all past overcharges, and imposed civil
all powers necessary, convenient or appropriate to penalties for knowing violations of sections 13.135 and
accomplish the cooperative’s purposes, whether 13.90 of the Water Code. The court of appeals affirmed
benefitting members or nonmembers, or whether the trial court’s finding that Lakeshore knowingly violated
accomplished directly or through affiliates, but nothing in the Water Code, but reversed the trial court’s order that
the Act per se precludes ownership of an interest in a Lakeshore issue refunds to its customers for all past
for-profit enterprise, provided that such activity is overcharges, holding that the trial court could not impose
necessary, convenient or appropriate to the cooperative’s a refund for all past overcharges under section 13.411 (a)
authorized purposes. of the Water Code without the Commission’s first issuing
Justice Hecht concurred to clarify that the Court’s an order to that effect.
opinion should not be read to limit the purposes of non- The Supreme Court heard argument in this case on
profit corporations under section 2.01 of the Non-Profit November 19, 2003.
Corporation Act because the case did not require the
Court to construe that section. Although the Court said XLVII. WARRANTIES
“we hold that the phrase ‘any lawful purpose’ . . . is A. Habitability and Workmanship/Waiver
limited to purposes similar in kind or class to the twenty- 1. Centex Homes v. Buecher, 95 S.W.3d 266 (Tex.
one identified categories” in section 2.01,” Justice Hecht December 31, 2002) [00-0479].
said the Court intended to construe only subsection 18 of The issue is whether homeowners can waive, by
the Electric Cooperative Corporation Act, not section contract in buying a new home, the implied warranties of
2.01 of the Non-Profit Act. habitability and “good and workmanlike” construction for
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the house when the language in the contract is “clear and B. Evidence of Actual Damages
free from doubt.” The homeowners sought in a class 1. Diamond Shamrock Ref. Co. v. Hall, 82 S.W.3d 5
action to prevent Centex from enforcing the waiver (Tex. App.–San Antonio 2001), pet. for review
included in their sales documents. The trial court granted, 46 Tex. Sup. Ct. J. 584 (April 17, 2003)
dismissed the class action, but the court of appeals [02-0566].
reversed, reasoning that policy considerations giving rise This case concerns the legal sufficiency of evidence
to implied warranties prevented their disclaimer in this supporting a jury finding of gross negligence, the
case by a preprinted standard form waiver. applicability of the punitive damage cap provisions of
The Supreme Court held that the implied warranty Chapter 41 of the Texas Civil Practices and Remedies
of good workmanship may be waived by an agreement Code, and the propriety of the exclusion of evidence of
that provides “for the manner, performance or quality of actual damages in an employee-death case under the
the desired construction,” but that the warranty of Texas Workers’ Compensation Act.
habitability may not be disclaimed generally. The implied Charles Hall, a Diamond Shamrock Refining Co.
warranty of habitability only extends to latent defects that employee, died from workplace injuries caused by an
render the property so defective that it is unsuitable for explosion at the oil refinery’s compressor building.
its intended use as a home. It does not include defects, Diamond Shamrock used a refinery design that presented
even substantial ones, known by or expressly disclosed to a risk that liquids might enter the compressor, despite its
the buyer. In reaching this conclusion, the Court knowledge that the entrance of even a small amount of
addressed confusion over the seeming conflict between liquid would likely produce an explosion. Donna Hall,
G-W-L Inc. v. Robichaux, 643 S.W.2d 392 (Tex. 1982), Charles’s surviving spouse, sued Diamond Shamrock
and Melody Home Manufacturing Co. v. Barnes, 741 under the Texas Worker’s Compensation Act and Texas
S.W.2d 349 (Tex. 1987). Constitution Article 16, Section 26 to recover punitive
Justice Hecht dissented, saying that the majority damages based on a gross negligence claim. The trial
appeared to share no fundamental agreement on what court granted Diamond Shamrock’s motion to prohibit
the law is. any evidence of Hall’s actual damages.
Justice Owen dissented on the ground that the case The jury found in favor of Hall and awarded her
came to the Court with absolutely no factual record. The $42.5 million in punitive damages based on her gross
trial court dismissed the plaintiffs’ class-action claims negligence claim. The trial court granted Diamond
based on the pleadings. No evidence was offered by any Shamrock’s motion to limit the punitive damage award to
party, and the Court did not have the express warranty $200,000 pursuant to the statutory cap provided in section
that was at issue. Yet the Court was asked to decide 41.008 of the Texas Civil Practices and Remedies Code.
and did decide whether the implied warranties of good The court of appeals found the evidence legally and
workmanship and habitability could ever be waived in the factually sufficient to support the punitive damage award
sale of a new home and, if so, what such a waiver must based on the gross negligence claim and recognized the
contain to be effective. Justice Owen argued that the applicability of section 41.008 to limit Hall’s punitive
Court had no idea what the practical impact of its holding damage award. But the court reversed and remanded
would be on consumers. for a new trial, holding that the trial court erred in
Justice Enoch noted his dissent. excluding evidence of Hall’s actual damages, evidenc e
essential to determine whether Hall was eligible f o r a
XLVIII. WORKERS’ COMPENSATION larger damage award under section 41.008’s statutory
A. Election of Remedies Doctrine cap formula.
1. Valley Forge Ins. Co. v. Austin, 105 S.W.3d 609 The Supreme Court granted Diamond Shamrock’s
(Tex. June 5, 2003) [02-0100]. petition for review and heard argument on October 1,
The Court issued a per curiam opinion denying the 2003.
petition for review, but noting that the court of appeals
did not have to reach its holding that Texas Labor Code C. Exclusive Remedy Provision/Common Law
section 409. 009 abrogated the election-of-remedies Claims
doctrine in workers’ compensation law in order to decide 1. Wingfoot Enters. v. Alvarado, 111 S.W.3d 134
the case. As a result, the Supreme Court left the (Tex. July 3, 2003) [01-0825].
abrogation question open. The issue in this case is whether an employee can
have more than one employer for purposes of the
Workers’ Compensation Act and its exclusive remedy
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provision. The underlying dispute arose when a Justice Enoch concurred, observing that the Court’s
temporary staffing company assigned Alvarado to Web holding raises two concerns: (1) the Court applied the
Assembly, where she operated an industrial machine that right-to-control test–a test that leads to unfair results–to
partially severed three of her fingers. Alvarado determine the “employer” for workers’ compensation
recovered workers’ compensation benefits under the purposes; and (2) under these circumstances, the Court
staffing company’s policy, then sued the company for concluded that Alvarado had joint employers–a holding
negligence and gross negligence. The trial court granted that Judge Enoch said was neither supported nor
summary judgment for the company. The court of predicted by relevant legislative enactments.
appeals affirmed summary judgment on Alvarado’s gross
negligence claim, but reversed the judgment on her D. Nonsubscriber Benefit Plan/Release/Fair
negligence claim, concluding the exclusive-remedy Notice/Express Negligence Doctrine
provision of the Workers’ Compensation Act did not bar 1. Storage & Processors, Inc. v. Reyes, 86 S.W.3d
the negligence suit because there was evidence that both 344 (Tex. App.–Texarkana 2002), pet. for review
the staffing company and Web had the right to control granted, 46 Tex. Sup. Ct. J. 802 (June 19, 2003)
Alvarado’s work at the time she was injured. [02-1008].
The Supreme Court held that an employee can have The issue is whether an employer’s release from
more than one employer for workers’ compensation common-law liability in the benefits plan it offers in lieu
purposes. Although Alvarado conceded that she was the of state workers’ compensation benefits constitutes
staffing company’s employee, she alleged that she was extraordinary risk-shifting that must meet the fair-notice
not its employee f or workers’ compensation purposes requirement of conspicuousness and the express-
because Web controlled the details of her work when she negligence doctrine. Ramon Reyes was hired by Storage
was injured. The Court assumed, without deciding, that & Processors, Inc. (S&P) as a forklift operator. S&P
Alvarado was Web’s borrowed employee because a jury does not subscribe to workers’ compensation insurance,
found that she was and there was undisputed evidence but offered an occupational accident employee benefit
that Web controlled the details of Alvarado’s work when plan. The plan provided benefits for work-related
she was injured. But the question for workers’ injuries, but employees had to agree to release S&P from
compensation purposes, the Court said, is whether a common-law liability. Participation in the plan was not
general employer like the staffing company remains an compulsory, nor was Reyes’s employment conditioned on
“employer” within the meaning of the Worker’s acceptance of the plan and release of S&P’s liability.
Compensation Act and thus whether the exclusive- Reyes signed the plan agreement. Reyes also signed a
remedy provision can apply both to the general employer document, written in Spanish, that stated that he read and
and one who has become an employer by controlling the understood the plan rules. About a year and a half later,
details of an employee’s work at the time of injury. The a forklift driven by Leonel Guerrero ran over Reyes’s
Court observed that neither the statutory definitions of foot, severely injuring him. S&P paid Reyes benefits
“employer” and “employee” nor the exclusive-remedy under the plan, but Reyes sued S&P and Guerrero for
provision expressly forecloses the possibility that there negligenc e before the benefits terminated. In the trial
may be more than one employer. And, in examining the court, S&P moved for summary judgment, arguing that
Labor Code’s overall scheme for workers’ compensation Reyes had waived his common-law rights, had ratified
and for protecting workers, the Court concluded that the that waiver, and was estopped from contending
Act favors employers electing to provide coverage for otherwise because he had accepted benefits under the
their employees, supporting the conclusion that the Act plan. The trial court granted S&P summary judgment.
permits an employee to have more than one employer for Reyes appealed, Reyes v. Storage & Processors,
workers’ compensation purposes. Such employers would Inc., 995 S.W.2d 722 (Tex. App.–San Antonio 1999, pet.
have the benefit of the exclusive remedy provision if they denied), and the court of appeals affirmed the summary
secured workers’ compensation insurance coverage, but judgment on the waiver, ratification and estoppel grounds,
would be subject to common law suit, with the loss of but held that the release violated public policy and was
certain defenses, if they failed to do so. Because the unenforceable because the benefits provided by the plan
staffing company and Alvarado met the statutory were more limited than those provided by workers’
definition of “employer” and “employee,” the staffing compensation. S&P sought review of that decision, but
company was entitled to summary judgment on its the Supreme Court denied the petition. After denying the
exclusive remedy defense. petition, the Court held in Lawrence v. CDB Services,
Inc., 44 S.W.3d 544 (Tex. 2001), that voluntary
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participation in employer-disability plans and releases of provisions of the Texas and U.S. constitutions guarantee
common-law rights do not violate public policy. In doing a parent’s wrongful death and survival action on behalf
so, the Court expressly abrogated the court of appeals’ of a viable full-term fetus and that Tara Reese produced
holding in this case. Then, based on Lawrence, the trial enough evidence to support her medical malpractice
court again granted S&P summary judgment. Reyes claims.
again appealed on the question of whether the release The Supreme Court granted the medical center’s
was subject to the fair notice requirement of petition for review and heard oral argument on October
conspicuousness and the express negligence doctrine. 8, 2003.
The court of appeals held that any contractual release or
indemnity agreement that relieves a party of any degree
of liability for its own negligence in advance of an injury
caused by the negligence constitutes an extraordinary
shifting of risk and that such releases must meet both the
fair-notice requirement of conspicuousness and the
express-negligence doctrine.
The Supreme Court granted S&P’s petition for
review and heard oral argument on October 29, 2003.
XLIX. WRONGFUL DEATH
A. Parents’ Claims/Death of Fetus In Utero
1. Fort Worth Osteopathic Hosp., Inc. v. Reese, 87
S.W.3d 203 (Tex. App.–Fort Worth 2002), pet. for
review granted, 46 Tex. Sup. Ct. J. 683 (May 22,
2003) [02-1061].
The first issue in this case is whether the parents of
a viable fetus, either individually or as the legal
representatives of the estate of the fetus, can assert a
valid claim under the Texas wrongful death and survival
statutes when a medical provider negligently causes the
fetus’s death in utero. The second issue is whether the
mother, Tara Reese, produced more than a scintilla of
evidence to support the claims she asserted in her
individual capacity.
Tara Rees e received prenatal care from Dr. Smith
and Dr. Beals several times at the Osteopathic Medical
Center of Texas. In May 1998, Tara Reese was taken
to the medical center by her husband, Donnie Reese,
after experiencing a racing pulse and dizziness. While
under the care of Dr. Culton and the medical center’s
nurses, Reese’s fetus died in utero. Tara and Donnie
Reese sued Osteopathic Medical Center of Texas and
Drs. Beals, Culton and Smith, asserting claims for
negligence, wrongful death under the Texas Wrongful
Death Act, and survival damages under the Texas
Survival Statute. The medical center and Drs. Beals,
Culton and Smith moved for summary judgment, arguing
that (1) Texas law prohibits recovery for injury to or
death of a fetus under the Texas Survival Statute and the
Texas Wrongful Death Act and (2) no evidence
supported Tara Reese’s individual damages claims. The
trial court granted summary judgment. The court of
appeals reversed, holding that the equal-protection
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INDEX
1464-Eight Ltd. v. Joppich, 96 S.W.3d 614 (Tex. App.–Houston [1st Dist.] 2002), pet. for review granted,
47 Tex. Sup. Ct. J. 127 (December 12, 2003) [03-0109]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Alexander v. Turtur & Assocs., Inc., 86 S.W.3d 646 (Tex. App.–Houston [1st Dist.] 2001), pet. for review granted,
46 Tex. Sup. Ct. J. 1204 (September 25, 2003) [02-1009]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Am. Mfr. Mut. Ins. Co. v. Schaefer, __ S.W.3d __, 47 Tex. Sup. Ct. J. 40 (October 17, 2003) [02-0295]. . . . . . . . 40
Anadarko Petroleum Corp. v. Thompson, 94 S.W.3d 550 (Tex. July 3, 2002) [01-0261]. . . . . . . . . . . . . . . . . . . . . 56
Baker v. Monsanto Co., 111 S.W.3d 158 (Tex. July 3, 2003) [02-0603]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Battaglia v. Alexander, 93 S.W.3d 132 (Tex. App.–Houston [14th Dist.] 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 781 (June 12, 2003) [02-0701]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50, 75
Beaumont State Ctr. v. Kozlowski, 108 S.W.3d 899 (Tex. June 5, 2003) [02-0243]. . . . . . . . . . . . . . . . . . . . . . . . 37
Bell v. The Low Income Women of Tex., 95 S.W.3d 253 (Tex. December 31, 2002) [01-0061]. . . . . . . . . . . . . . . . . 9
Bennett v. Cochran, 96 S.W.3d 227 (Tex. December 12, 2002) [02-0050]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Binur v. Jacobo, 70 S.W.3d 330 (Tex. App.– Waco 2002), pet. for review granted, 46 Tex. Sup. Ct. J. 488 (March
6, 2003) [02-0405]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 62
Bostrom Seating, Inc. v. Crane Carrier Co., 89 S.W.3d 153 (Tex. App.–Corpus Christi 2002), pet. for review
granted,
47 Tex. Sup. Ct. J. 54 (October 31, 2003) [02-1047]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Briscoe v. Goodmark Corp., 102 S.W.3d 714 (Tex. March 27, 2003) [02-0498]. . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Brooks v. NorthGlen Ass’n, 76 S.W.3d 162 (Tex. App.–Texarkana 2002), pet. for review granted, 46 Tex. Sup. Ct.
J. 426 (February 13, 2003) [02-0492]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Callahan & Assocs. v. Orangefield Indep. Sch. Dist., 92 S.W.3d 841 (Tex. December 19, 2002) [01-0993]. . . . . . . . 3
Carpenter v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682 (Tex. December 31, 2002) [01-0002]. . . . . . . . . . . . . . 65
Catalina Dev., Inc. v. El Paso County, __ S.W.3d __, 46 Tex. Sup. Ct. J. 636 (May 8, 2003) [02-0299]. . . . . . . . . . 34
Centex Homes v. Buecher, 95 S.W.3d 266 (Tex. December 31, 2002) [00-0479]. . . . . . . . . . . . . . . . . . . . . . . . . . 79
Cire v. Cummings, 74 S.W.3d 920 (Tex. App.–Amarillo 2002), pet. for review granted, 46 Tex. Sup. Ct. J. 584
(April 17, 2003) [02-0670]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
City of Bellmead v. Torres, 89 S.W.3d 611 (Tex. November 5, 2002) [01-0299]. . . . . . . . . . . . . . . . . . . . . . . . 35, 54
City of Dallas v. Jennings, 2001 WL 800108 (Tex. App.–Dallas 2001), pet. for review granted, 45 Tex. Sup. Ct. J.
590 (April 25, 2002) [01-1012]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
City of San Antonio v. City of Boerne, 111 S.W.3d 22 (Tex. June 26, 2003) [01-1054]. . . . . . . . . . . . . . . . . . . . . . 50
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City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750 (Tex. June 26, 2003) [02-0038]. . . . . . . . . . . . . . . 9
City of Terrell Hills v. Champion Builders, 70 S.W.3d 221 (Tex. App.–San Antonio 2001), pet. for review granted,
46 Tex. Sup. Ct. J. 15 (October 10, 2002) [02-0260]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33, 35
Cmty. Bank & Trust, S.S.B. v. Fleck, 107 S.W.3d 541 (Tex. December 5, 2002) [00-1122]. . . . . . . . . . . . . . . . . . . 6
Coastal Transp., Inc. v. Crown Cent. Petroleum Corp., 38 S.W.3d 180 (Tex. App.–Houston [14th Dist.] 2001), pet.
for review granted, 45 Tex. Sup. Ct. J. 1145 (August 29, 2002) [01-0301]. . . . . . . . . . . . . . . . . . . . . . . . 18, 51
Compaq Computer Corp. v. LaPray, 79 S.W.3d 779 (Tex. App.–Beaumont 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 762 (June 5, 2003) [02-0705]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Ctr. for Health Care Servs. v. Quintanilla, __ S.W.3d __, 46 Tex. Sup. Ct. J. 1103 (August 28, 2003) [02-0942]. . . . 37
Cusack Ranch Corp. v. MidTexas Pipeline Co., 71 S.W.3d 395 (Tex. App.–Corpus Christi 2001), pet for review
granted, 46 Tex. Sup. Ct. J. 237 (December 12, 2002) [02-0217]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Cusack v. MidTexas Pipeline Co., 2002 WL 368639 (Tex. App.–Corpus Christi 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 237 (December 12, 2002) [02-0359]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
CVN Group, Inc. v. Delgado, 95 S.W.3d 234 (Tex. December 31, 2002) [01-0682]. . . . . . . . . . . . . . . . . . . . . . . . . 3
Dallas Area Rapid Transit v. Whitley, 104 S.W.3d 540 (Tex. April 17, 2003) [02-0177]. . . . . . . . . . . . . . . . . . . . . . 36
Dallas County v. Halsey, 87 S.W.3d 552 (Tex. October 24, 2002) [01-0784]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Delta Air Lines v. Black, 116 S.W.3d 745 (Tex. September 11, 2003) [02-0255]. . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Diamond Shamrock Ref. Co. v. Hall, 82 S.W.3d 5 (Tex. App.–San Antonio 2001), pet. for review granted,
46 Tex. Sup. Ct. J. 584 (April 17, 2003) [02-0566]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 80
Diversicare Gen. Partner, Inc. v. Rubio, 82 S.W.3d 778 (Tex. App.–Corpus Christi 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 528 (March 27, 2003) [02-0849]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Dow Chem. Co. v. Bright, 89 S.W.3d 602 (Tex. October 17, 2002) [99-0929]. . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Excess Underwriters at Lloyd’s v. Frank’s Casing Crew & Rental Tools, Inc., 93 S.W.3d 178 (Tex. App.–Houston
[14th Dist.] 2002), pet. for review granted, 46 Tex. Sup. Ct. J. 546 (April 3, 2003) [02-0730]. . . . . . . . . . . . . 41
F.F.P. Operating Partners L.P. v. Dueñez, 69 S.W.3d 800 (Tex. App.–Corpus Christi 2002), pet. for review
granted, 46 Tex. Sup. Ct. J. 245 (December 12, 2002) [02-0381]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
FFE Transp. Servs., Inc. v. Fulgham, 2002 WL 1801596 (Tex. App.–Dallas), pet. for review granted,
46 Tex. Sup. Ct. J. 838 (June 26, 2003) [02-1097]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60, 69
First Nat’l Bank of Seminole v. Hooper, 104 S.W.3d 83 (Tex. February 13, 2003) [01-0688]. . . . . . . . . . . . . . . . . . 74
First Valley Bank v. Martin, 55 S.W.3d 172 (Tex. App.–Corpus Christi 2001), pet. for review granted,
47 Tex. Sup. Ct. J. 127 (Dec. 12, 2003) [01-0910]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Forbes Inc. v. Granada Biosciences Inc., __ S.W.3d __, __ Tex. Sup. Ct. J. __ (December 19, 2003) [01-0788]. . . . 41
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Ford Motor Co. v. Ridgway, 82 S.W.3d 26 (Tex. App.–San Antonio 2002), pet. for review granted, 46 Tex. Sup.
Ct. J. 527 (March 27, 2003) [02-0552]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Fort Worth Osteopathic Hosp., Inc. v. Reese, 87 S.W.3d 203 (Tex. App.–Fort Worth 2002), pet. for review
granted, 46 Tex. Sup. Ct. J. 683 (May 22, 2003) [02-1061]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Garland Cmty. Hosp. v. Rose, 87 S.W.3d 188 (Tex. App.–Dallas 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 1058 (August 28, 2003) [02-0902]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Garza v. Garcia, 70 S.W.3d 362 (Tex. App.–Corpus Christi 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 16 (October 10, 2002) [02-0300]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Gen. Motors Corp. v. Iracheta, 90 S.W.3d 725 (Tex. App.–San Antonio 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 1204 (September 25, 2003) [02-0932]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66, 68
Gibson v. Tolbert, 102 S.W.3d 710 (Tex. March 27, 2003) [02-0190]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. September 11, 2003) [01-0007]. . . . . . . . . . . . . . . . 69
Gonzalez v. Reliant Energy, Inc. 102 S.W.3d 868 (Tex. App.–Houston [1st Dist.] 2003) [03-0469 & 03-0470] 45, 47, 59
Hardy v. State, 102 S.W.3d 123 (Tex. April 3, 2003) [01-0779]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Harris County v. Smith, 96 S.W.3d 230 (Tex. December 19, 2002) [01-0531]. . . . . . . . . . . . . . . . . . . . . . . . . 16, 59
Harris County v. Sykes, 89 S.W.3d 661 (Tex. App.–Houston [1st Dist.] 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 1058 (August 28, 2003) [02-1014]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Henry Schein, Inc. v. Stromboe, 102 S.W.3d 675 (Tex. October 31, 2002) [00-1162]. . . . . . . . . . . . . . . . . . . . . . . . 7
HILCO Elec. Coop., Inc. v. Midlothian Butane Gas Co., 111 S.W.3d 75 (Tex. July 3, 2003) [01-0336]. . . . . . . . . . . 78
Hoffman-LaRoche, Inc. v. Zeltwanger, 69 S.W.3d 634 (Tex. App.–Corpus Christi 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 68 (October 31, 2002) [02-0120]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 42
Holubec v. Brandenberger, 111 S.W.3d 32 (Tex. May 22, 2003) [01-1214). . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 54
Hone v. Hanafin, 104 S.W.3d 884 (Tex. May 1, 2003) [02-0548]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Hubenak v. San Jacinto Gas Transmission Co., 65 S.W.3d 791 (Tex. App.–Houston [1st Dist.] 2001) pet. for review
granted, 46 Tex. Sup. Ct. J. 237 (December 12, 2002) [02-0213]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Humble Sand & Gravel, Inc. v. Gomez, 48 S.W.3d 487 (Tex. App.–Texarkana 2001), pet. for review granted,
45 Tex. Sup. Ct. J. 712 (May 30, 2002) [01-0652]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
IHS Cedars Treatment Ctr. of Desoto v. Mason, 2001 WL 915215 (Tex. App.–Dallas 2001), pet. for review
granted, 46 Tex. Sup. Ct. J. 69 (October 31, 2002) [01-0926]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49, 51
In re A.F., 113 S.W.3d 363 (Tex. July 3, 2003) [02-1167]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 63
In re A.V., 113 S.W.3d 355 (Tex. July 3, 2003) [01-0706]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 30
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In re AIU Ins. Co., argument granted on pet. for writ of mandamus, 46 Tex. Sup. Ct. J. 478 (March 6, 2003)
[02-0648]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
In re B.L.D., 113 S.W.3d 340 (Tex. July 3, 2003) [01-0882]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 30, 61
In re Bass, 113 S.W.3d 735 (Tex. July 3, 2003) [02-0071]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
In re Bd. of Disciplinary Appeals, 113 S.W.3d 730 (Tex. July 3, 2003) [02-0344]. . . . . . . . . . . . . . . . . . . . . . . . 5, 47
In re Bd. of Disciplinary Appeals, 113 S.W.3d 730 (Tex. July 3, 2003) [02-0294]. . . . . . . . . . . . . . . . . . . . . . . . 5, 47
In re Bridgestone/Firestone, Inc., 106 S.W.3d 730 (Tex. May 22, 2003) [01-1165]. . . . . . . . . . . . . . . . . . . . . . . . . 21
In re CI Host, Inc., 92 S.W.3d 514 (Tex. November 21, 2002) [00-1150]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
In re Crow-Billingsley Air Park Ltd., 98 S.W.3d 178 (Tex. February 13, 2003) [02-0311]. . . . . . . . . . . . . . . . . . . . 46
In re CSX Corp.,__ S.W.3d __, 47 Tex. Sup. Ct. J. 24 (October 3, 2003) [03-0381]. . . . . . . . . . . . . . . . . . . . . . . . 21
In re E.I. DuPont de Nemours & Co., 92 S.W.3d 517 (Tex. December 5, 2002) [01-0066]. . . . . . . . . . . . . . . . . . . 46
In re Entergy Corp. & Entergy Gulf States, Inc., argument granted on pet. for writ of mandamus, 46 Tex. Sup. Ct.
J. 1058 (August 28, 2003) [03-0024]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
In re First Tex. Homes Inc., __ S.W.3d __ , 47 Tex. Sup. Ct. J. 97 (November 14, 2003) [02-0876]. . . . . . . . . . . . . 4
In re Houston Northwest Partners, Ltd., 98 S.W.3d 777 (Tex. App.–Austin 2003), argument granted on pet. for
writ of mandamus, 46 Tex. Sup. Ct. J. 1124 (September 11, 2003) [03-0252]. . . . . . . . . . . . . . . . . . . . 45, 47, 59
In re J.D. Edwards World Solutions Co., 87 S.W.3d 546 (Tex. October 10, 2002) [01-0630]. . . . . . . . . . . . . . . . . . . 3
In re J.F.C., 96 S.W.3d 256 (Tex. December 31, 2002) [01-0571]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 60
In re J.P., 2003 Tex. App. LEXIS 618 (Tex. App.–Fort Worth Jan. 23, 2003), pet. for review granted,
Tex. Sup. Ct. J. (December 12, 2003) [03-0266]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
In re Jane Doe 11, 92 S.W.3d 511 (Tex. October 10, 2002) [02-0933]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
In re K.N.R., 113 S.W.3d 365 (Tex. July 3, 2003) [02-0442]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 61
In re Kan. City S. Indus., Inc., argument granted on pet. for writ of mandamus, 46 Tex. Sup. Ct. J. 1058 (August
28, 2003) [03-0179]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75
In re Kuntz, __ S.W.3d __, __ Tex. Sup. Ct. J. __ (December 19, 2003) [02-0375]. . . . . . . . . . . . . . . . . . . . . . . . 20
In re L.M.I., 119 S.W.3d 707 (Tex. September 18, 2003) [02-0244]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 29
In re L.S.R., 92 S.W.3d 529 (Tex. December 5, 2002) [02-0039]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
In re M.S., 115 S.W.3d 534 (Tex. July 3, 2003) [02-0509]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
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In re Senior Living Props., LLC, 63 S.W.3d 594 (Tex. App.–Tyler 2002), argument granted on pet. for writ of
mandamus, 45 Tex. Sup. Ct. J. 641 (May 16, 2002), abated, 46 Tex. Sup. Ct. J. 600 (April 24, 2003)
[02-0087]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
In re Sheshtawy, 2003 WL 1922869 (Tex. App.–Houston [1st Dist.] 2003), argument granted on pet. for writ of
habeas corpus, 46 Tex. Sup. Ct. J. 1124 (September 11, 2003) [03-0766]. . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 37
In re State Bar of Tex., 113 S.W.3d 730 (Tex. July 3, 2003) [02-0293]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 47
In re Weekley Homes, L.P., argument granted on pet. for writ of mandamus, 46 Tex. Sup. Ct. J. 1204 (September
25, 2003) [03-0309]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
In re Z.L.B., 102 S.W.3d 120 (Tex. March 13, 2003) [01-1209]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
In re Z.L.T., __ S.W.3d __ , 47 Tex. Sup. Ct. J. 113 (November 21, 2003) [02-0474]. . . . . . . . . . . . . . . . . . . . 6, 28
Interstate Contracting Corp. v. City of Dallas, certified question accepted, 46 Tex. Sup. Ct. J. 486 (March 6, 2003)
[03-0152]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
J. Hiram Moore, Ltd. v. Greer, 72 S.W.3d 436 (Tex. App.–Corpus Christi 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 801 (June 19, 2003) [02-0455]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
J.M. Davidson Inc. v. Webster, __ S.W.3d __, __ Tex. Sup. Ct. J. __ (December 31, 2003) [01-0774]. . . . . . . . . . . 2
Jernigan v. Langley, 111 S.W.3d 153 (Tex. July 3, 2003) [02-0575]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Joe v. Two Thirty Nine Joint Venture, 60 S.W.3d 896 (Tex. App.–Dallas 2001), pet. for review granted,
46 Tex. Sup. Ct. J. 434 (February 13, 2003) [02-0218]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 33
Keen v. Weaver, S.W.3d , 46 Tex. Sup. Ct. J. 804 (June 19, 2003), cert. denied, __ U.S. __ (December 1,
2003) [01-0447]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 32
Kerr-McGee Corp. v. Helton, 2002 WL 110433 (Tex. App.–Amarillo 2002), pet. for review granted, 46 Tex. Sup.
Ct. J. 49 (October 24, 2002) [02-0356]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. August 28, 2003) [01-0430]. . . . . . . . . . . . . . . . . . . . . . . . . . 7
King v. Graham, __ S.W.3d __, 47 Tex. Sup. Ct. J. 85 (November 7, 2003) [01-0171]. . . . . . . . . . . . . . . . . . . . . . 43
Kutach Family Trust v. San Jacinto Gas Transmission Co., 65 S.W.3d 791 (Tex. App.–Houston [1st Dist.] 2001),
pet. for review granted, 46 Tex. Sup. Ct. J. 237 (December 12, 2002) [02-0216]. . . . . . . . . . . . . . . . . . . . . . . 71
Lakeshore Util. Co. v. Tex. Natural Resource Conservation Comm’n, 92 S.W.3d 556 (Tex. App.–Austin 2002), pet.
for review granted, 46 Tex. Sup. Ct. J. 1058 (August 28, 2003) [02-0988]. . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Latch v. Gratty, Inc., 107 S.W.3d 543 (Tex. February 27, 2003) [01-0773]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Marathon Corp. v. Pitzner, 106 S.W.3d 724 (Tex. May 22, 2003) [01-0870]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Marcus Cable Assocs. L.P. v. Krohn, 90 S.W.3d 697 (Tex. November 11, 2002) [01-0291]. . . . . . . . . . . . . . . . . . 70
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Martin v. Amerman, 83 S.W.3d 858 (Tex. App.–Texarkana 2002), pet. for review granted, 46 Tex. Sup. Ct. J. 616
(May 1, 2003) [02-0731]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Martinez v. Val Verde Reg’l Med. Ctr., 110 S.W.3d 480 (Tex. App.–San Antonio 2003), pet. for review granted,
47 Tex. Sup. Ct. J. 2 (Oct. 3, 2003) [03-0611]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
McIntyre v. Ramirez, 109 S.W.3d 741 (Tex. June 26, 2003) [01-1203]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
MidTexas Pipeline Co. v. Dernehl, 71 S.W.3d 852 (Tex. App.–Texarkana 2002), pet. for review granted, 46 Tex.
Sup. Ct. J. 237 (December 12, 2002) [02-0320]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
MidTexas Pipeline Co. v. Wright, 2001 WL 1636640 (Tex. App.–Texarkana 2001), pet. for review granted, 46 Tex.
Sup. Ct. J. 237 (December 12, 2002) [02-0326]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
MidTexas Pipeline Co. v. Wright, 2002 WL 264833 (Tex. App.–Texarkana 2002), pet. for review granted, 46 Tex.
Sup. Ct. J. 237 (December 12, 2002) [02-0321], . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Miga v. Jensen, 96 S.W.3d 207 (Tex. October 31, 2002) [00-0932]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Miller v. HCA, Inc., 118 S.W.3d 758 (Tex. September 30, 2003) [01-0079]. . . . . . . . . . . . . . . . . . . . . . . . . . . . 6, 52
Miller v. Keyser, 90 S.W.3d 712 (Tex. November 5, 2002) [01-0541]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Mission Petroleum Carriers, Inc. v. Solomon, 106 S.W.3d 705 (Tex. May 15, 2003) [01-0292]. . . . . . . . . . . . . . . . 23
Moritz v. Preiss, __ S.W.3d __, 46 Tex. Sup. Ct. J. 784 (June 12, 2003) [01-1270]. . . . . . . . . . . . . . . . . . . . . . . . 67
Murk v. Scheele, __ S.W.3d __, 47 Tex. Sup. Ct. J. 88 (November 7, 2003) [01-0205]. . . . . . . . . . . . . . . . . . . . . . 77
N. County Mut. Ins. Co. v. Davalos, 84 S.W.3d 314 (Tex. App.–Corpus Christi 2002), pet. for review granted, 46
Tex. Sup. Ct. J. 682 (May 22, 2003) [02-1007]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37, 38
N.P., Inc. v. Turboff, 111 S.W.3d 40 (Tex. May 22, 2003) [01-1167]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Naaman v. Grider, __ S.W.3d __, 47 Tex. Sup. Ct. J. 60 (October 31, 2003) [02-0784]. . . . . . . . . . . . . . . . . . . . . 63
Natural Gas Pipeline Co. of Am. v. Pool, 120 S.W.3d 317 (Tex. August 28, 2003) [01-0057 & 01-0058]. . . . . . . . . . 55
Office of the Att’y Gen. of Tex. v. Lee, 92 S.W.3d 526 (Tex. December 5, 2002) [01-0471]. . . . . . . . . . . . . . . 26, 61
Old Am. County Mut. Fire Ins. Co. v. Sanchez, 81 S.W.3d 452 (Tex. App.–Austin 2002), pet. for review granted,
47 Tex. Sup. Ct. J. 2 (October 3, 2003) [02-0843]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39, 40
Page v. Marton Roofing, Inc., 102 S.W.3d 733 (Tex. April 3, 2003) [02-0845]. . . . . . . . . . . . . . . . . . . . . . . . . . . . 74
Page v. Structural Wood Components, Inc., 102 S.W.3d 720 (Tex. April 3, 2003) [01-1122]. . . . . . . . . . . . . . . . . . 74
Pinnacle Gas Treating, Inc. v. Read, 104 S.W.3d 544 (Tex. April 17, 2003) [02-0169]. . . . . . . . . . . . . . . . . . . . . . 73
PPG Indus., Inc. v. JMB/Houston Ctr. Partners Ltd. P’ship, 41 S.W.3d 270 (Tex. App.–Houston [14th Dist.] 2001),
pet. for review granted, 45 Tex. Sup. Ct. J. 1107 (August 22, 2002) [01-0346]. . . . . . . . . . . . . . . . . . . . . . . . 19
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Progressive County Mut. Ins. Co. v. Sink, 107 S.W.3d 547 (Tex. May 15, 2003) [01-0534]. . . . . . . . . . . . . . . . . . 40
Provident Life & Accident Ins. Co. v. Knott, __ S.W.3d __, __ Tex. Sup. Ct. J. __ (December 19, 2003) [02-0485]. 31
R.R. Street & Co. v. Pilgrim Enter., Inc., 81 S.W.3d 276 (Tex. App.–Houston [1st Dist.] 2001), pet. for review
granted, 47 Sup. Ct. J. 105 (Nov. 21, 2003) [02-0758]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 76
Ray Ins. Agency v. Jones, 92 S.W.3d 530 (Tex. December 12, 2002) [02-0009]. . . . . . . . . . . . . . . . . . . . . . . . . . 40
Reiss v. Reiss, 118 S.W.3d 439 (Tex. June 26, 2003) [01-0251]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Ridge Oil Co. v. Guinn Invs., Inc., 73 S.W.3d 523 (Tex. App.–Fort Worth 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 402 (January 16, 2003) [02-0599]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Roberts v. Williamson, 111 S.W.3d 113 (Tex. July 3, 2003) [01-0766]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 75
S. Union Co. v. City of Edinburg, __ S.W.3d __ , __ Tex. Sup. Ct. J. __ (October 31, 2003) [01-0785]. . . . . . . . 5, 57
San Antonio State Hosp. v. Cowan, 75 S.W.3d 19 (Tex. App.–San Antonio 2001), pet. for review granted, 46 Tex.
Sup. Ct. J. 197 (November 21, 2002) [02-0348]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Schneider Nat’l Carriers, Inc. v. Bates, 95 S.W.3d 309 (Tex. App.–Houston [1st] 2002), pet. for review granted,
47 Tex. Sup. Ct. J. 105 (November 21, 2003) [03-0236]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44, 55
Shanks v. Treadway, 110 S.W.3d 444 (Tex. June 26, 2003) [00-1325]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Sheffield Dev. Co., Inc. v. City of Glenn Heights, 61 S.W.3d 634 (Tex. App.–Waco 2001), pet. for review granted,
45 Tex. Sup. Ct. J. 996 (July 3, 2002) [02-0033]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Shell Oil Co. v. HRN, Inc., 102 S.W.3d 205 (Tex. App.–Houston [14th] 2003), pet. for review granted, __ Tex.
Sup. Ct. J. __ (December 19, 2003) [03-0555]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Shell Oil Co. v. Khan, 71 S.W.3d 890 (Tex. App.–Texarkana 2002), pet. for review granted, 46 Tex. Sup. Ct. J.
246 (December 12, 2002) [02-0401]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 73
Sixth RMA Partners, L.P. v. Sibley, 111 S.W.3d 46 (Tex. May 22, 2003) [02-0179]. . . . . . . . . . . . . . . . . . . . . . . . 63
Southwest Bank v. Info. Support Concepts, Inc., 85 S.W.3d 462 (Tex. App.–Fort Worth 2002), pet. for review
granted, 46 Tex. Sup. Ct. J. 1058 (August 28, 2003) [02-0946]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 42
Southwestern Bell Tel. Co. v. Garza, 58 S.W.3d 214 (Tex. App.–Corpus Christi 2001), pet. for review granted,
46 Tex. Sup. Ct. J. 779 (June 12, 2003) [01-1142] . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 23, 66
Speed Boat Leasing Inc. v. Elmer, __ S.W.3d __, __ Tex. Sup. Ct. J. __ (December 19, 2003) [03-0037] . . . . . . . . 51
Spohn Hosp. v. Mayer, 104 S.W.3d 878 (Tex. April 24, 2003) [02-0443]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
St. Joseph Hosp. v. Wolff, 94 S.W.3d 513 (Tex. November 5, 2002) [99-1192]. . . . . . . . . . . . . . . . . . . . . . . . . . . 47
State Farm Mut. Auto. Ins. Co. v. Lopez,__ S.W.3d __, 46 Tex. Sup. Ct. J. 129 (October 31, 2002), pet. for review
granted on reh’g and prior opinion withdrawn, 46 Tex. Sup. Ct. J. 129 (May 8, 2003) [01-0540]. . . . . . . . . . . 45
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State v. One Super Cherry Master Video 8-Liner Mach., 102 S.W.3d 132 (Tex. April 3, 2003) [01-0673]. . . . . . . . . 33
Storage & Processors, Inc. v. Reyes, 86 S.W.3d 344 (Tex. App.–Texarkana 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 802 (June 19, 2003) [02-1008]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Tana Oil & Gas Corp. v. McCall, 104 S.W.3d 80 (Tex. February 13, 2003) [01-1181]. . . . . . . . . . . . . . . . . . . . . . . 44
Tarrant Reg’l Water Dist. v. Gragg, 43 S.W.3d 609 (Tex. App.–Waco 2001), pet. for review granted, 45 Tex. Sup.
Ct. J. 813 (June 13, 2002) [01-0362]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240 (Tex. December 31, 2002) [01-0211]. . . . . . . . . . . . . . . 14, 78
Tex. Dept. Of Transp. v. City of Sunset Valley, 92 S.W.3d 540 (Tex. App.–Austin 2002), pets. for review granted,
47 Tex. Sup. Ct. J. 127 (Dec. 12, 2003) [03-0041]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Tex. Dep’t of Criminal Justice v. Simons, 74 S.W.3d 138 (Tex. App.–Beaumont 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 584 (April 17, 2003) [02-0479]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 77
Tex. Dep’t of Parks & Wildlife v. Miranda, 55 S.W.3d 648 (Tex. App.–San Antonio 2001), pet. for review granted
on reh’g, 45 Tex. Sup. Ct. J. 999 (July 3, 2002) [01-0619]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34, 45
Tex. Dep’t of Protective & Regulatory Servs. v. Mega Child Care, Inc., 81 S.W.3d 470 (Tex. App.–Houston [1st
Dist.] 2002), pet. for review granted, 46 Tex. Sup. Ct. J. 527 (March 27, 2003) [02-0728]. . . . . . . . . . . . . . . . 1
Tex. Dep’t of Transp. v. Barber, 111 S.W.3d 86 (Tex. July 3, 2003) [01-0414]. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Tex. Farm Bureau Mut. Ins. Co. v. Sturrock, 65 S.W.3d 763 (Tex. App.–Beaumont 2001), pet. for review granted,
46 Tex. Sup. Ct. J. 481 (March 6, 2003) [02-0069]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Tex. Home Mgmt., Inc. v. Peavy, 89 S.W.3d 30 (Tex. October 31, 2002) [00-0889]. . . . . . . . . . . . . . . . . . . . . . . 50
Tex. R.R. Comm’n v. WBD Oil & Gas Co., 104 S.W.3d 69 (Tex. February 13, 2003) [01-0177]. . . . . . . . . . . . . 1, 57
Tex. State Bank v. Amaro, 87 S.W.3d 538 (Tex. September 26, 2002) [00-1220]. . . . . . . . . . . . . . . . . . . . . . . . . . 58
Tex. Workers’ Comp. Comm’n v. Patient Advocates of Tex., 80 S.W.3d 66 (Tex. App.– Austin 2002), pet. for
review granted, 46 Tex. Sup. Ct. J. 617 (May 1, 2003) [02-0804]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Tiller v. McLure, __ S.W.3d __, 46 Tex. Sup. Ct. J. 632 (May 8, 2003) [02-0136]. . . . . . . . . . . . . . . . . . . . . . . . . 42
Town of Flower Mound v. Stafford Estates Ltd. P’ship, 71 S.W.3d 18 (Tex. App.–Fort Worth 2002), pet. for review
granted, 46 Tex. Sup. Ct. J. 244 (December 12, 2002) [02-0369]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Union Pac. Res. Group, Inc. v. Hankins, 111 S.W.3d 69 (Tex. July 3, 2003) [01-0836]. . . . . . . . . . . . . . . . . . . . 9, 55
Universal Health Servs., Inc. v. Renaissance Women’s Ctr. of Austin, L.P., __ S.W.3d __, 47 Tex. Sup. Ct. J. 20
(September 30, 2003) [02-0193]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
University of Texas Southwestern Medical Center at Dallas v. Loutzenhiser, 2002 WL 1565742 (Tex. App.–Dallas
2002), pet. for review granted, 47 Tex. Sup. Ct. J. 2 (October 3, 2003) [02-0894]. . . . . . . . . . . . . . . . . . . . . . 77
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Utica Nat’l Ins. Co. v. Am. Indem. Co., S.W.3d , 46 Tex. Sup. Ct. J. 866 (June 26, 2003), reh’g granted __ Tex.
Sup. Ct. J. __ (December 19, 2003) [02-0090]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Valley Forge Ins. Co. v. Austin, 105 S.W.3d 609 (Tex. June 5, 2003) [02-0100]. . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Volkswagen of Am., Inc. v. Ramirez, 79 S.W.3d 113 (Tex. App.–Corpus Christi 2002), pet. for review granted,
46 Tex. Sup. Ct. J. 489 (March 6, 2003) [02-0557]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 62
W. Orange-Cove Consol. I.S.D. v. Alanis, 107 S.W.3d 558 (Tex. May 29, 2003) [02-0427]. . . . . . . . . . . . . . . . 13, 64
Walker v. Gutierrez, 111 S.W.3d 56 (Tex. June 19, 2003) [01-0841]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Wal-Mart Stores, Inc. v. Canchola, __ S.W.3d __, 46 Tex. Sup. Ct. J. 1116 (September 4, 2003) [02-0232]. . . . . . . 22
Wal-Mart Stores, Inc. v. Johnson, 106 S.W.3d 718 (Tex. May 22, 2003) [01-0441]. . . . . . . . . . . . . . . . . . . . . . . . 67
Wal-Mart Stores, Inc. v. Miller, 102 S.W.3d 706 (Tex. March 27, 2003) [01-1148]. . . . . . . . . . . . . . . . . . . . . . . . 53
Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.3d 502 (Tex. October 10, 2002) [01-0643]. . . . . . . . . . . . . . . . . . . . . 25
Wenzel v. San Jacinto Gas Transmission Co., 65 S.W.3d 791 (Tex. App.–Houston [1st Dist.] 2001), pet. for review
granted, 46 Tex. Sup. Ct. J. 237 (December 12, 2002) [02-0215]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Wichita Falls State Hosp. v. Taylor, 106 S.W.3d 692 (Tex. March 6, 2003) [01-0491]. . . . . . . . . . . . . . . . . . . . . . . 36
Williams v. Flores, 88 S.W.3d 631 (Tex. October 10, 2002) [02-0035]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Williamson v. Roberts, 111 S.W.3d 113 (Tex. July 3, 2003) [01-0765]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 75
Wingfoot Enters. v. Alvarado, 111 S.W.3d 134 (Tex. July 3, 2003) [01-0825]. . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
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_________________________________________
SUPREME COURT UPDATE SUPPLEMENT
_________________________________________
Presented by:
Hon. Scott Brister
Written by:
Hon. Scott Brister
Justice
The Supreme Court of Texas
Susan Bostic
Staff Attorney
The Supreme Court of Texas
Kara Altenbaumer-Price
Roxanne Wilson
Law Clerks
The Supreme Court of Texas
Special thanks to all the Staff Attorneys and
Law Clerks at the Supreme Court of Texas
for their substantial contributions.
State Bar of Texas
PRACTICE BEFORE THE TEXAS SUPREME COURT
April 16, 2004
Austin
CHAPTER 11
Supreme Court Update Supplement Chapter 11
TABLE OF CONTENTS
I. SCOPE OF THIS ARTICLE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II. ADMINISTRATIVE LAW . . . . . . . . . . . . . . . . . . . . . ............. ............ ................ 1
E. Motor Vehicle Board . . . . . . . . . . . . . . . . . . . . . ............. ............ ................ 1
1. Pretzer v. The Motor Vehicle Bd., S.W.3d (Tex. 2004), 47 Tex. Sup. Ct. J. 340 (March 8 ,
2004) [03-0333]. . . . . . . . . . . . . . . . . . . . . ............. ............ ................ 1
IV. ATTORNEYS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
D. Disqualification. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. In re Joe and Carol Mitcham, S.W.3d (Tex. March 26, 2004), Tex. Sup. Ct. J. [03-0481]. . 1
IX. CLASS ACTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
D. Voluntary Payment Doctrine . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1. BMG Direct Marketing, Inc. v. Peake, S.W.3d (Tex. App.–Beaumont 2003), pet. for review
granted, 47 Tex. Sup. Ct. J. 241 (Jan. 30, 2004) [03-0547]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
XVI. EVIDENCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ................ 1
A. Expert Testimony/Reliable Foundation/ Damages . . . . . . . . . . . . . . . . . . . . . . . . . . ................ 1
1 Kerr-McGee Corp. v. Helton, S.W.3d (Tex. 2004), 47 Tex. Sup. Ct. J. 248 (Jan. 30, 2004) [02-
0356]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ................ 1
XVIII. FAMILY LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
H. Guardian Ad Litem Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1 Jocson v. Crabb, S.W.3d (Tex. 2004), 47 Tex. Sup. Ct. J. 292 (Feb. 13, 2004) [03-0163]. . . . . . 2
I. Paternity/Time For Filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1. In the Interest of R.A.H., S.W.3d (Tex. 2004), 47 Tex. Sup. Ct. J. 293 (Feb. 13, 2004)
[03-0774]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..... 2
XXI. GOVERNMENTAL IMMUNITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......................... 3
H. Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......................... 3
7. Tooke v. City of Mexia, 115 S.W.3d 618, pet. for review granted, Tex. Sup. Ct. J. (March 26,
2004) [03-0878]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .......................... 3
XXIII. INSURANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
G. Policy/Coverage . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
1. Old Am. County Mut. Ins. Co. v. Renfrow, S.W.3d (Tex. 2004), 47 Tex. S. Ct. J. 290 (Feb. 13,
2004) [02-1087]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
4. Progressive County Mut. Ins. Co. v. Bailey, S.W.3d (Tex. 2004), 47 Tex. Sup. Ct. J. 289 (Feb.
13, 2004) [02-0778]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
5. State & County Mut. Ins. Co. v. Macias, S.W.3d (Tex. 2004), 47 Tex. Sup. Ct. J. 289 (Feb. 13,
2003) [02-0833]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
I. Unauthorized Insurer/Posting Bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1. In re Certain London Underwriters at Lloyd’s & Certain London Mkt. Cos., 106 S.W.3d 332, pet. for
review granted, Tex. Sup. Ct. J. (March 26, 2004) [03-0559]. . . . . . . . . . . . . . . . . . . . . . . . . . 4
XXV. JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..... 4
B. Conflicts Jurisdiction/Dicta in Court of Appeals’ Opinion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..... 4
3. State Farm Mut. Auto. Ins. Co. v. Alicia Lopez, motion for rehearing on pet. for review granted,
Tex. S. Ct. J. (March 19, 2004) [01-0540]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..... 4
F. Court of Appeals/Interlocutory Appeals/Challenges to Trial Court’s Subject Matter Jurisdiction . . . . . ..... 4
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1. Thomas v. Long, 97 S.W.3d 300 (Tex. App.–Houston [14th Dist.] 2003), pet. for review granted, 47
Tex. Sup. Ct. J. 231 (Jan. 16, 2004) [03-0204]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
XXVIII. MEDICAL MALPRACTICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
I. Expert Preliminary Report/Sufficiency/Review by Mandamus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1. In re Woman’s Hosp. of Tex., Inc. d/b/a/ Columbia Woman’s Hosp. of Tex. [02-0748]; In re Jeffrey
Horswell, M.D. and Jeffrey Horswell, M.D., P.A. [03-0334]; In re Kenneth Shapiro, M.D. [03-0368];
In re Pablo S. Rodriguez [03-0474]; In re Fort Worth Osteopathic Hosp., Inc. d/b/a Osteopathic Med.
Ctr. of Tex.[03-0668]; In re Craig W. Barker, M.D., High Plains Radiological Assocs., & Muleshoe
Area Hosp. Dist. d/b/a Muleshoe Area Med. Ctr. [03-0976]; In re Southside Fam. Care Assocs., P.A.
& Rob Michael Tschauner, M.D. [03-0981]; In re Riverside Hosp., Inc. [031015], consolidated with
In re Derek Farley D.O. [03-1056], consolidated with In re Sidney Lynn Redels, D.O. [03-1062],
S.W.3d (Tex. 2004), 47 Tex. Sup. Ct. J. 346 (March 5, 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . 5
XXXIV. PROCEDURE—APPELLATE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
J. Time for Perfecting Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2. Gene Duke Builders, Inc. v. Abilene Housing Auth., S.W.3d (Tex. 2004), 47 Tex. Sup. Ct. J. 345
(March 8, 2004) [03-0710]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
XXXVI. PROCEDURE—TRIAL AND POST-TRIAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
E. Jury Instruction/Sole Proximate Cause/ Unavoidable Accident . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1. Dillard v. Tex. Elec. Coop., 2003 WL 1884296, (Tex. App.–Tyler 2003), pet. for review granted, 47
Tex. Sup. Ct. J. 317 (March 8, 2004) [03-0655]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
XXXVII. PRODUCTS LIABILITY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
A. Evidence/Circumstantial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
1. Ford Motor Co. v. Ridgway, S.W.3d (Tex. 2004), 47 Tex. Sup. Ct. J. 266 (Feb. 6, 2004) [02-
0552]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
G. Post Sale Duty/ Duty to Warn of Newly Discovered Dangers/Evidence of Other Incidents/Evidence of
Gross Negligence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. Nissan Motor Co. Ltd. v. Armstrong, 32 S.W.3d 701 (Tex. App.—Houston [14th Dist.] 2000, pet. for
review granted, 47 Tex. Sup. Ct. J. 274 (Feb. 13, 2004) [01-0030]. . . . . . . . . . . . . . . . . . . . . . . . . . 7
XXXVIII. REAL PROPERTY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
A. Boundary Dispute/Declaratory Action/Attorney’s Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
1. Martin v. Amerman, S.W.3d (Tex. 2004), 47 Tex. Sup. Ct. J. 285 (Feb. 13, 2004) [02-0731]. . . . 7
C. Condemnation/Taking . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1. Sheffield Dev. Co., Inc. v. City of Glenn Heights, S.W.3d (Tex. 2004), 47 Tex. Sup. Ct. J. 327
(March 8, 2004) [02-0033]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
2. County of Bexar v. Santikos, 107 S.W.3d 677 (Tex. App.—San Antonio 2004), pet. for review
granted, 47 Tex. Sup. Ct. J. 317 (March 8, 2004) [03-0655]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
I. Penalty Fines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
1. Brown v. De La Cruz, 109 S.W.3d 73 (Tex. App.—El Paso 2003), pet. for review granted, 47 Tex.
Sup. Ct. J. 305 (Feb. 27, 2004) [03-0703]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
XLI. STATUTE OF LIMITATIONS . . . . . . . . . . . . . . . . . . . . . . .................................... 8
B. Tolling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .................................... 8
1. Flower Bluff Indep. Sch. Dist. v. Bass, S.W.3d (Tex. 2004), 47 Tex. Sup. Ct. J. 307 (Feb. 27,
2004) [01-1106]. . . . . . . . . . . . . . . . . . . . . . . . . . .................................... 8
XLIII. TEXAS TORT CLAIMS ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
D. Governmental “Use” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
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1. San Antonio State Hosp. v. Cowan, S.W.3d (Tex. 2004), 47 Tex. Sup. Ct. J. 221 (Jan. 9, 2004)
[02-0348]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
XLVI. UTILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
C. Stranded Costs/Excess Mitigation Credits/Interest . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1. CenterPoint Energy Inc. f/k/a Reliant Energy Inc. v. Pub. Util. Comm’n of Tex., 101 S.W.3d 129
(Tex. App.—Austin 2003), pet. for review granted, 47 Tex. Sup. Ct. J. 241 (Jan. 30, 2004)
[03-0396]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
XLVIII. WORKERS’ COMPENSATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
E. Joint or Co-Employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
1. Garza v. Exel Logistics Inc. & Interim Servs. Pac. LLC, 100 S.W.3d 280 (Tex. App.—Houston [1st
Dist.] 2002), pet. for review granted, 47 Tex. Sup. Ct. J. 241 (Jan. 30, 2004) [02-1187]. . . . . . . . . . 10
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SUPREME COURT UPDATE to hire a lawyer who as a legal assistant had worked on
asbestos cases for another firm representing the utility.
SUPPLEMENT In a resulting “Agreement Regarding Conflicts of
Interest,” a partner of the firm that hired the onetime
I. SCOPE OF THIS ARTICLE legal assistant agreed that the firm would not participate
This article surveys cases that the Supreme Court of
in asbestos suits against the utility or share any
Texas decided from January 9, 2004 through March 26,
information about it. The trial court denied a motion to
2004. Petitions that have been granted but not yet
disqualify the Mitchams’ firm in the underlying asbestos
decided are also included.
claim, but the court of appeals disagreed and granted
mandamus relief.
II. ADMINISTRATIVE LAW The Supreme Court denied mandamus relief, holding
E. Motor Vehicle Board that the confidentiality agreement the Mitchams’ attorney
1. Pretzer v. The Motor Vehicle Bd., S.W.3d
signed – agreeing not to share any information regarding
(Tex. 2004), 47 Tex. Sup. Ct. J. 340 (March 8 ,
the utility’s use of asbestos – contained no time limit and
2004) [03-0333].
none could be implied concerning confidentiality. The
The issue is whether the Motor Vehicle Board had
Court noted it had never addressed, for purposes of
statutory authority under section 6.01 and 6.01A of the
Disciplinary Rule 1.09, the presumption and whether it
Motor Vehicle Commission Code to sanction people who
could be rebutted that might apply to a prior firm that did
are not licensed by the Board, or required to be, for
no work that could be questioned until after a disqualified
conduct only prohibited for license-holders or applicants.
attorney left. But because of the agreement involved in
In this case, the Board imposed penalties and sanctions
this case, the Mitchams’ attorney could not represent
on a Fairfield car dealership, its owner, and manager, for
them without mentioning facts surrounding the utility’s
violations not only of the Motor Vehicle Commission
use of asbestos.
Code, but also for deceptive trade practices and
Consumer Credit Code violations related to vehicle sales.
IX. CLASS ACTION
The Board also restricted the manager from marketing
D. Voluntary Payment Doctrine
motor vehicles in the future. Both the trial court and the
1. BMG Direct Marketing, Inc. v. Peake, S.W.3d
court of appeals ordered the case remanded, finding the
(Tex. App.–Beaumont 2003), pet. for review
Board exceeded its authority.
granted, 47 Tex. Sup. Ct. J. 241 (Jan. 30, 2004)
The Supreme Court affirmed in part, reversed in
[03-0547].
part, and remanded in part to the trial court with The issue is whether the voluntary payment doctrine
instructions to remand the case to the Board. The Court
can be invoked to prevent the certification of a class.
held that the Board’s sanctions of the manager and
BMG operates a music club that sells compact discs to
owner individually were without authority. The
club members. Peake joined the BMG music club and
Legislature authorized the Board to levy penalties and
was subsequently assessed late fees that totaled $7.35.
issue cease-and-desist orders for violations of the Motor
Initially, Peake paid the fees without complaint. But in
Vehicle Commission Code or of a Board rule or order.
2002, Peake brought a breach of contract action against
The Board found the manager and owner violated a
BMG to challenge BMG’s assessment of late fees.
statute that did not apply except to licensees or Peake moved to certify a class consisting of all
applicants.
present and former music club members in Texas that
had been assessed a late fee by BMG. BMG opposed
IV. ATTORNEYS class certification, arguing that it had a “voluntary
D. Disqualification. payment defense” to each class member’s claim, and
1. In re Joe and Carol Mitcham, S.W.3d (Tex.
that therefore, common issues would not predominate.
March 26, 2004), Tex. Sup. Ct. J. [03-0481].
Courts have expressed the voluntary payment doctrine as
The issue in this original proceeding is whether a
follows: “[m]oney voluntarily paid with full knowledge of
conflict agreement that precluded lawyers from filing
all the facts and without fraud, deception, duress or
asbestos suits against a certain client now forbids the law
coercion cannot be received back although it was paid
firm from filing such suits against the client after the
upon a void or illegal demand or upon a claim which had
lawyer with the conflict left the firm. The Mitchams
no foundation in fact and was paid without
retained the law firm to sue a utility on an asbestos claim.
consideration.” Tyler v. Tyler, 742 S.W.2d 740, 743
The firm previously settled a case with the utility in order
(Tex. App.–Houston [14th Dist.] 1987, writ denied).
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The trial court certified the class and ruled that the in the area. Reliability does not mean one thing outside
voluntary payment defense did not apply, but even if it the courtroom and something less inside. If the industry
did, it would be a common issue that would not preclude relied on expert analysis like the expert’s offered to
certification. A divided court of appeals affirmed. The determine where to drill, then it was reliable for trial
dissent argued the class should not have been certified purposes. If not, it should not have been admitted.
because the voluntary payment doctrine, by definition,
was based on an individual’s choices and circumstances, XVIII. FAMILY LAW
and thus common issues would not predominate. The H. Guardian Ad Litem Fees
Supreme Court granted BMG’s petition for review. 1 Jocson v. Crabb, S.W.3d (Tex. 2004), 47 Tex.
Sup. Ct. J. 292 (Feb. 13, 2004) [03-0163].
XVI. EVIDENCE The issue is whether objections to guardian ad litem
A. Expert Testimony/Reliable Foundation/ fees were waived because: (1) a ruling was not obtained
Damages during discovery on a challenge to the ad litem’s
1 Kerr-McGee Corp. v. Helton, S.W.3d (Tex. attendance at several depositions; and (2) by failing to
2004), 47 Tex. Sup. Ct. J. 248 (Jan. 30, 2004) [02- introduce the ad litem’s files into evidence. The trial
0356]. court awarded the ad litem $117,150 in fees over
The issue is whether an expert witness’s testimony objections at a fee hearing. The court of appeals
had a reliable foundation to support damages for a claim affirmed.
that Kerr-McGee did not protect against natural-gas The Supreme Court reversed and remanded to the
drainage. Helton sued Kerr-McGee claiming that Kerr- court of appeals, holding that objections to ad litem fees
McGee should have drilled a third offs et well to tap into are timely if raised at the post-trial fee hearing and that
a large gas reservoir discovered on adjacent property. introduction of the ad litem’s entire file was unnecessary
Two wells Kerr-McGee did drill failed to produce gas in to preserve the fee objection raised here. The Court held
paying quantities. At trial, Helton’s expert, a petroleum that the final fee hearing was the appropriate forum to
engineer, testified that a hypothetical third well drilled at get a ruling on the deposition-attendance objections.
a certain location would have produced as much as $2.4 Additionally, the Court concluded that objections to
million in royalties. The expert testified that he based his the amount of fees awarded for reviewing notices,
calculations in part on certain assumptions and not on letters, and other documents were not waived. The
actual data. The trial court denied Kerr-McGee’s motion Court reached this conclusion even though no ruling was
to strike the expert’s testimony and awarded Helton obtained when the defendants subpoenaed the ad litem’s
royalty damages of more than $860,000. The court of files and the ad litem refused to produce them because
appeals rejected Kerr-McGee’s reliability and sufficiency he was not relying on anything other than his invoice.
challenges and affirmed. The Court noted that the defendants tendered some of
The Supreme Court reversed and rendered the documents involved and the ad litem’s invoice
judgment that Helton take nothing. The Court held that indicated the nature of many others that the ad litem
although the expert examined facts and data that would reviewed and billed for. Further, the defendants’ primary
be appropriate in reaching an opinion as to damages, no objection was that no conflict existed between the
explanation existed of how those factors affected his parents and the child in this case and therefore it was
calculations, if at all. Without knowing how the expert unnecessary for the ad litem to be involved with day-to-
used data from existing wells and other data to reach his day correspondence. The Court therefore concluded that
conclusions, the reliability of his analysis could not be the court of appeals erred in failing to review the trial
determined. Even if the underlying facts and data the c ourt’s conclusion that “[t]here’s no way that [the ad
expert used were accurate, there was simply too great an litem] would know what the conflict is unless he was
analytical gap between the data and the expert's aware of what was going on at all times in this case.”
conclusions for the conclusions to be reliable and
therefore some evidence. Thus, there was no evidence I. Paternity/Time For Filing
to support the amount of damages awarded by the trial 1. In the Interest of R.A.H., S.W.3d (Tex. 2004),
court. 47 Tex. Sup. Ct. J. 293 (Feb. 13, 2004) [03-0774].
In a concurring opinion, Justice Hecht noted that if The issue is whether a man seeking to establish
an expert could reasonably predict reliably where to drill, paternity despite a prior paternity adjudication (of another
Kerr-McGee would have acquired that expert’s advice man) timely filed his action under the Uniform Parentage
instead of drilling at considerable cost unsuccessful wells Act, Texas Family Code section 160.609. Under that
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Act, a man seeking to establish his paternity of a child by attorneys’ fees. The court of appeals reversed and
supplanting an acknowledged or adjudicated father must rendered judgment that the plaintiffs take nothing. That
commence a proceeding within four years of the court held: (1) section 51.075 does not constitute a
“effective date of the [prior] acknowledgment or legislative waiver of a home-rule municipality's immunity
adjudication.” The present proceeding was filed more from suit; (2) the City did not waive its immunity from
than four years after the prior paternity hearing was held, breach of contract suit by partial performance under the
but less than four years after the trial judge signed the contract; and (3) the City was not subject to suit in its
order of adjudication. The trial court concluded that the proprietary capacity. The Supreme Court granted the
proceeding was barred as untimely, and the court of Tookes’ petition for review.
appeals affirmed. The court of appeals determined that
the proc eeding was untimely based on a docket sheet XXIII. INSURANCE
entry indicating that the trial court on August 27, 1997 G. Policy/Coverage
found another man had admitted paternity of the child. 1. Old Am. County Mut. Ins. Co. v. Renfrow,
The Supreme Court reversed and remanded the S.W.3d (Tex. 2004), 47 Tex. S. Ct. J. 290 (Feb.
case to the trial court. The Court noted that no order 13, 2004) [02-1087].
was signed adjudic ating the other man’s paternity until The issue in this declaratory-judgment action over
September 26, 1997. It held that the “effective date” insurance coverage is whether the employee-driver of a
referenced in the Uniform Parentage Act should be the truck involved in a fatal accident had express or implied
date the prior adjudication was rendered and that permission to take the company truck on a personal trip
judgment is rendered “when the decision is officially forty miles from his hometown. Renfrow, an oil-field
announced orally in open court, by memorandum filed services worker, took the truck home in Bridgeport with
with the clerk, or otherwise announced publicly.” But the company owner’s permission because he had to be
here there was no record or evidence of an oral at a field site early the next morning. That evening he
pronouncement at the August 1997 paternity hearing, and took a friend to Saginaw. The truck veered from the
the only written memorandum was the unsigned docket highway on the return trip, then hit an embankment,
sheet. Thus, the Court held that judgment was rendered killing the friend. The trial court ruled that the company’s
and paternity adjudicated on September 26, 1997, when commercial automobile liability policy covered Renfrow
the trial court signed the paternity decree. at the time. The court of appeals reversed on the
question of whether Renfrow had implied permission to
XXI. GOVERNMENTAL IMMUNITY take the truck on a personal trip.
H. Waiver The Supreme Court reversed and rendered
7. Tooke v. City of Mexia, 115 S.W.3d 618, pet. for judgment for the insurance company. The Court held
review granted, Tex. Sup. Ct. J. (March 26, that the trip was a material deviation from the owner’s
2004) [03-0878]. initial permission as a matter of law.
The issue in this case is whether the “plead and be
impleaded” language of Local Government Code section 4. Progressive County Mut. Ins. Co. v. Bailey,
51.075 waives sovereign immunity for a home-rule S.W.3d (Tex. 2004), 47 Tex. Sup. Ct. J. 289
municipality. The City of Mexia contracted with Judy (Feb. 13, 2004) [02-0778].
and Everett Tooke to provide brush collection and The issue is whether the Baileys’ insurer must
chipping services. The contract was for three years and compensate them for their vehicle’s diminished market
renewed automatically each year, unless one party value when the damaged car was fully repaired. The
provided the other with sixty days notice of intent to trial court granted summary judgment in favor of the
terminate the agreement. During the second year, the insurance company. The court of appeals reversed and
City orally informed the Tookes of its intent to stop using remanded to the trial court, holding that the insurance
their services. The Tookes sued for breach of contract. c ompany was required to conclusively establish that it
The City argued that the Tookes’ suit was barred by repaired the Baileys' vehicle to substantially the same
sovereign immunity. The Tookes contended that value as it was prior to the loss. The court of appeals
sovereign immunity had been waived because the City is concluded that, in its motion for summary judgment, the
a home-rule municipality governed by section 51.075, insurance company made no attempt to make the
which states that a home-rule municipality “may plead requisite showing and consequently the trial court erred
and be impleaded in any court.” At the trial court, a jury in granting summary judgment on this ground.
awarded Tooke $8,659 in lost profits and $7,500 in
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The Supreme Court reversed and remanded to the sued the London underwriters over a dispute involving
court of appeals. It held that the same language as in the payments under the CIP. Dresser moved to compel
Baileys’ standard policy was at issue in American posting of a prejudgment security or bond pursuant to
Manufacturers Mutual Insurance Co. v. Schaefer, article 1.36, section 11(a)(1), which requires an
___ S.W.3d ___ (Tex. 2003), holding that the insurer has unauthorized insurer to post security or bond before filing
no obligation to compensate for diminished value when any pleading in any court action instituted through service
the car has been adequately repaired. The Court of process under article 1.36, section 7.
remanded so that the court of appeals could consider The trial court granted Dresser’s motion. The
other issues it did not reach when it reversed the London underwriters sought mandamus relief which the
summary judgment for the insurance company. court of appeals denied, concluding that the London
underwriters had an adequate remedy by appeal. The
5. State & County Mut. Ins. Co. v. Macias, S.W.3d Supreme Court set the London underwriters’ petition for
(Tex. 2004), 47 Tex. Sup. Ct. J. 289 (Feb. 13, writ of mandamus for oral argument.
2003) [02-0833].
The issue is whether State and County Mutual Fire XXV. JURISDICTION
Insurance Company must compensate the Maciases, its B. Conflicts Jurisdiction/Dicta in Court of
insureds, for their vehicle's diminished market value when Appeals’ Opinion
the car was damaged but fully repaired. The court of 3. State Farm Mut. Auto. Ins. Co. v. Alicia Lopez,
appeals held that diminished-value damages were motion for rehearing on pet. for review granted,
recoverable under the policy, and affirmed the trial Tex. S. Ct. J. (March 19, 2004) [01-0540].
court's partial summary judgment and declaratory The issue in this interlocutory appeal of a trial
judgment in favor of the Maciases. court’s class certification order is whether the order
The Supreme Court reversed and rendered conflicts with Southwestern Refining Co. v. Bernal, 22
judgment in favor of State and County Mutual. The S.W.3d 425 (Tex. 2000). State Farm asserts that Bernal
Court noted that in American Manufacturers Mutual required rigorous analysis of all the prerequisites to class
Insurance Co. v. Schaefer, ___ S.W.3d ___(Tex. certification when the court of appeals held that rigorous
2003), it held that the Texas Standard Personal Auto analysis was limited to commonality and predominance
Policy, under which the Maciases are insured, does not and that the court of appeals’ statement that a “trial plan”
obligate an insurer to compensate a policyholder for a is not required in all class certification orders conflicts
vehicle's diminished market value when the car has been with Bernal. In an earlier per curiam opinion, the Court
damaged but adequately repaired. dismissed the petition for want of jurisdiction.
I. Unauthorized Insurer/Posting Bond F. Court of Appeals/Interlocutory
1. In re Certain London Underwriters at Lloyd’s & Appeals/Challenges to Trial Court’s Subject
Certain London Mkt. Cos., 106 S.W.3d 332, pet. for Matter Jurisdiction
review granted, Tex. Sup. Ct. J. (March 26, 1. Thomas v. Long, 97 S.W.3d 300 (Tex.
2004) [03-0559]. App.–Houston [14th Dist.] 2003), pet. for review
The principal issue is whether the trial court abused granted, 47 Tex. Sup. Ct. J. 231 (Jan. 16, 2004)
its discretion by ordering the London underwriters to post [03-0204].
bond pursuant to Texas Insurance Code article 1.36, The issue is the extent of the court of appeals’
section 11(a)(1). From 1954 to 1973, insurance policies jurisdiction over interlocutory appeals of trial court orders
were severally subscribed to in the London insurance granting or denying challenges to the trial court’s subject
market by Worthington Corp., and after a merger, by matter jurisdiction. Jeanne Long was terminated from
Studebaker-Worthington Corp. New York and London the Harris County Sheriff’s Department. She appealed
brokers negotiated and placed the insurance in London. her termination to the Department Civil Services
Dresser subsequently purchased Worthington Corp. In Commission, which held a hearing and ordered that Long
1995, Dresser filed suit against the London underwriters be returned to work with no loss of seniority or benefits,
to resolve coverage disputes under various insurance but without back pay for the months she had not worked.
policies, including the London policies. The parties A dispute then arose over whether Long was required to
settled the lawsuit and entered into a Coverage-In-Place undergo requalification testing pursuant to a Department
Agreement (CIP) to resolve those coverage disputes policy requiring the testing of all employees who have
relating to the London policies. Dresser subsequently had a break in service for more than one year. Long
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never returned to work and sued Sheriff Thomas in his requires dismissal of the case. Justice Owen noted that,
official capacity, seeking mandamus relief, a declaratory as part of House Bill 4, the Legislature amended section
judgment, and damages for retaliation. Long moved for 51.014 of the Texas Civil Practice and Remedies Code
partial summary judgment on her mandamus and to provide for an interlocutory appeal if a trial court
declaratory judgment requests, and Thomas also filed a refuses to dismiss a health care liability claim when an
partial motion for summary judgment in which he expert’s statement does not meet the statutory standards.
challenged the trial court’s subject matter jurisdiction Although an interlocutory appeal is allowed only in cases
over Long’s mandamus and declaratory judgment claims. filed on or after September 1, 2003, Justice Owen
The trial court dismissed Long’s mandamus claim, but concluded that it was not an indication that the
granted her summary judgment motion with respect to Legislature intended for courts to deny mandamus relief
the declaratory judgment claim, ordering that pursuant to in medical liability cases filed before that date. Justice
the Commission’s order Long was entitled to return to Owen stated that she would consider the merits of each
work immediately and without performing any tests. petition rather than summarily denying relief.
The court of appeals dismissed the interlocutory In In re Woman’s Hospital of Texas, Inc., In re
appeal for lack of subject matter jurisdiction. The court Horswell, and In re Southside Family Care Associates,
held that Texas Civil Practice and Remedies Code P.A., Justice Owen stated she would hold that an appeal
section 51.014(a), which expressly allows a party to is an inadequate remedy. In addition, she would hold that
appeal an order disposing of a plea to the jurisdiction, the expert’s affidavit failed to meet the statutory
does not provide for the appeal of the denial of a requirements.
s ummary judgment motion based on lack of subject In In re Fort Worth Osteopathic Hospital, Inc.,
matter jurisdiction. The court of appeals further held she would hear oral argument to allow the Court to
that, in any event, the trial court had jurisdiction over the consider what effect, if any, spoliation of evidence has on
case. The Supreme Court granted Thomas’s petition for article 4590i’s expert report requirements.
review. In In re Shapiro, In re Rodriguez, In re Barker,
In re Riverside Hospital, In re Farley, and In re
XXVIII. MEDICAL MALPRACTICE Redels, she concurred in denying mandamus relief. But
I. Expert Preliminary Report/Sufficiency/Review she would deny those petitions based on their merits —
by Mandamus not on the basis that mandamus relief is never
1. In re Woman’s Hosp. of Tex., Inc. d/b/a/ Columbia appropriate in cases governed by former article 4590i.
Woman’s Hosp. of Tex. [02-0748]; In re Jeffrey
Horswell, M.D. and Jeffrey Horswell, M.D., P.A. XXXIV. PROCEDURE—APPELLATE
[03-0334]; In re Kenneth Shapiro, M.D. [03-0368]; J. Time for Perfecting Appeal
In re Pablo S. Rodriguez [03-0474]; In re Fort 2. Gene Duke Builders, Inc. v. Abilene Housing Auth.,
Worth Osteopathic Hosp., Inc. d/b/a Osteopathic S.W.3d (Tex. 2004), 47 Tex. Sup. Ct. J. 345
Med. Ctr. of Tex.[03-0668]; In re Craig W. Barker, (March 8, 2004) [03-0710].
M.D., High Plains Radiological Assocs., & The issue is whether the deadline for an appeal was
Muleshoe Area Hosp. Dist. d/b/a Muleshoe Area extended by requesting fact findings and legal
Med. Ctr. [03-0976]; In re Southside Fam. Care conclusions after a dismissal in a hearing in which
Assocs., P.A. & Rob Michael Tschauner, M.D. evidence was not formally offered. The trial court
[03-0981]; In re Riverside Hosp., Inc. [031015], granted the housing authority’s motion to dismiss Duke’s
consolidated with In re Derek Farley D.O. [03- arbitration demand based on its failure to first bring a
1056], consolidated with In re Sidney Lynn Redels, claim under administrative procedures outlined in Texas
D.O. [03-1062], S.W.3d (Tex. 2004), 47 Tex. Government Code chapter 2260. Duke requested
Sup. Ct. J. 346 (March 5, 2004). findings and conclusions after the trial court dismissed the
In an opinion concurring in part and dissenting in case, then after they were entered, filed his notice of
part to the denial of the petitions for writ of mandamus, appeal eighty-five days after the dismissal. Texas Rule
Justice Owen stated that she would grant mandamus of Appellate Procedure 26.1 provides in part:
relief in health care liability cases that remain governed
by former article 4590i of the Medical Liability and The notice of appeal must be filed within 30
Insurance Improvement Act when an expert report fails days after the judgment is signed, except. . .
to meet the statutory requirements and the trial court has the notice of appeal must be filed within 90
nevertheless refused to comply with governing law that days after the judgment is signed if any party
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timely files. . . a request for findings of fact but refused the sole proximate cause instruction. The
and conclusions of law if findings and jury returned a $957,450 verdict for the Dillards.
conclusions either are required by the Rules of The court of appeals reversed, holding that the jury
Civil Procedure or, if not required, could should also have been instructed on sole proximate cause
properly be considered by the appellate court. because the unavoidable accident instruction did not
allow them to place blame on the cattle owner and
The court of appeals held that no evidentiary hearing because it was supported by sufficient evidence. The
occurred and that Duke’s request did not extend the Dillards argued that even if there has been sufficient
appellate deadline. evidence to support the instruction, it was unnecessary
The Supreme Court reversed and remanded to the because the language of the unavoidable accident
court of appeals. It held that the appellate deadline was instruction allowed the jury to consider the cattle owner
extended under Rule 26.1 because the findings and as a cause. The court of appeals disagreed, holding that
conclusions were based on an evidentiary hearing. an unavoidable accident instruction applies to nonhuman
Although Duke made no formal offer of evidence at the conduct only, namely the cattle themselves. The
hearing on the plea to the jurisdiction, it submitted a Supreme Court granted Dillard’s petition for review.
deposition, affidavits, and exhibits attached to its
pleadings showing that Abilene identified itself as part of XXXVII. PRODUCTS LIABILITY
the City of Abilene. Duke then used this evidence to A. Evidence/Circumstantial
argue that Abilene was a municipality and therefore not 1. Ford Motor Co. v. Ridgway, S.W.3d (Tex.
subject to chapter 2260 of the Government Code. 2004), 47 Tex. Sup. Ct. J. 266 (Feb. 6, 2004) [02-
0552].
XXXVI. PROCEDURE—TRIAL AND POST- The issue is whether the evidence offered by the
TRIAL plaintiffs in response to the defendant’s Rule 166a(i)
E. Jury Instruction/Sole Proximate Cause/ summary judgment motion created a genuine issue of
Unavoidable Accident material fact that a manufacturing defect in the
1. Dillard v. Tex. Elec. Coop., 2003 WL 1884296, defendant’s product caused the plaintiff’s injuries.
(Tex. App.–Tyler 2003), pet. for review granted, Ridgway suffered injuries after a used truck he bought
47 Tex. Sup. Ct. J. 317 (March 8, 2004) [03-0655]. caught fire as he drove it. He and his wife sued for
The issues are: (1) whether an “unavoidable negligent manufacture and products liability, claiming
accident” instruction applies only to non-human conduct; defective fuel or electrical systems caused the fire. They
(2) whether the jury should have been given a “sole offered an expert’s affidavit based on a visual inspection
proximate cause” instruction; and (3) whether a of the truck that attributed the likely cause of the fire to
presumption of human conduct exists when livestock are an electrical malfunction. The Ridgways also offered
on a public road. This case arises from two accidents affidavits from previous owners of the truck outlining the
involving cows in the road and multiple drivers. Both truck’s modification and repair history. The trial court
accidents occurred after dark. In the first accident, a granted summary judgment for Ford. The court of
Texas Electric Coop (TEC) truck driver hit and killed a appeals affirmed the summary judgment on the
cow which was crossing the road. In the second negligence claim but reversed on the products liability
accident, which occurred some minutes later, another claim, concluding that the Ridgways’ evidence raised a
driver hit the cow carcass, became airborne, and landed fact issue that precluded summary judgment.
on the car of an oncoming driver, killing him. The family The Supreme Court reversed and rendered
of the deceased driver and his estate sued TEC for the judgment that the Ridgways take nothing. The Court
negligence of its driver in leaving the cow carcass in the held that the Ridgways produced no direct evidence of
road and failing to warn oncoming traffic of the danger. the fire’s cause and their circumstantial evidence of a
At trial, TEC requested jury instructions on both sole manufacturing defect was not sufficient to raise a fact
proximate cause and unavoidable accident. The issue for the jury. Affidavits established only that a fire
unavoidable accident instruction was requested to occurred and the Ridgways’ expert could offer no more
address whether the cows themselves could be blamed than suspicion that an electrical system malfunction
for the accident. The sole proximate cause instruction caused the fire. Even if the Restatement (Third) of
was requested to address whether the owner of the loose Torts: Product Liability section 3 applied — which the
cows (whose identity is unknown) was to blame. The Court did not decide — it would apply only to new or
trial court granted the unavoidable accident instruction, almost new products. Under the circumstances of the
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case, the Ridgways' summary judgment proof was no violations, negligence per se, gross negligence, breach of
more than a scintilla of evidence that a manufacturing warranty, fraud, and failure to disclose material facts.
defect was present when the truck left the manufacturer. Armstrong introduced evidence at trial of a defect in the
Therefore, the Ridgways did not meet their burden of accelerator cables of the Nissan model she drove. She
s howing that a genuine issue of material fact existed also introduced expert testimony, accident reports, and
regarding a manufacturing defect. mechanics’ reports about similar problems they had seen.
In a concurring opinion, Justice Hecht stated that In addition, Armstrong introduced evidence that Nissan
the Restatement (Third) of Torts: Products Liability was aware of the problem and knew of accidents caused
section 3 does not accurately restate Texas law. Texas by the problem, and corrected the problem on more
law of res ipsa loquitur is at least as strict as the recent models, but did not notify owners of older models
Restatement (Second) of Torts section 328D. The or the National Highway Traffic Safety Administration of
Court’s opinions have required the first condition stated the problem.
in section 328D(1)(a), and instead of the second condition Based on jury findings, the trial court rendered
stated in section 328D(1)(b), the Court has required that judgment for Armstrong. Although the parties had
the instrumentality causing harm have been under the stipulated by a Rule 11 agreement before trial, approved
defendant's management and control. The "control" by the trial court, that punitive damages were $2,000,000,
requirement is not a rigid rule that the instrumentality the trial court ordered a remittitur of $800,000. The court
must have always been in the defendant's possession or of appeals affirmed. It rejected Nissan’s arguments that
even that it must have been in the defendant's control at Armstrong’s witness was not qualified and that the
the time of the injury. It is sufficient if the defendant was accident reports admitted at trial were not proper
in control at the time that the negligence inferable from evidence of the claimed defect. The court upheld the
the first factor probably occurred, so that the reasonable trial court’s findings on negligence per se, punitive
probabilities point to the defendant and support a damages, remittitur, fraud, misrepresentation, DTPA
reasonable inference that he was the negligent party. The violations, and duty to warn. The Supreme Court granted
possibility of other causes does not have to be completely both parties’ petitions for review.
eliminated, but their likelihood must be so reduced that
the jury can reasonably find by a preponderance of the XXXVIII. REAL PROPERTY
evidence that the negligence, if any, lies at the A. B o u n d a r y Dispute/Declaratory
defendant's door. The rule of res ipsa loquitur allows an Action/Attorney’s Fees
inference of negligence, absent direct proof, only when 1. Martin v. Amerman, S.W.3d (Tex. 2004), 47
injury would ordinarily not have occurred but for Tex. Sup. Ct. J. 285 (Feb. 13, 2004) [02-0731].
negligence, and defendant's negligence is probable. The issues in this case are (1) whether the lawsuit
over a boundary dispute was properly brought as a
G. Post Sale Duty/ Duty to Warn of Newly declaratory-judgment action, as opposed to a trespass-to-
Discovered Dangers/Evidence of Other try-title action, and (2) whether the court of appeals
Incidents/Evidence of Gross Negligence abused its discretion by deleting attorney’s fees from the
1. Nissan Motor Co. Ltd. v. Armstrong, 32 S.W.3d trial court’s judgment. Plaintiffs sued to declare the
701 (Tex. App.—Houston [14th Dist.] 2000, pet. boundary between two abutting properties and for
for review granted, 47 Tex. Sup. Ct. J. 274 (Feb. trespass-to-try title, then dropped the trespass-to-try-title
13, 2004) [01-0030]. action during trial. The jury found that the Martins’
The issues are: (1) whether a post-sale duty to survey represented the correct boundary line and
retrofit a product or to warn customers of newly- awarded the Martins attorney’s fees under the Texas
discovered dangers was erroneously imposed on Nissan; Declaratory Judgments Act. The court of appeals struck
(2) whether the jury erroneously found the car defective the attorney’s fees award, holding that the dispute,
at the time of sale even though no claim alleged the involving title to a disputed property strip, must be treated
defect existed before the car had 95,000 miles on it; (3) as a trespass-to-try-title action.
whether the trial court erred by admitting reports and The Supreme Court affirmed. It held that the Texas
evidence of other incidents; and (4) whether any trespass-to-try-title statute governed the parties'
evidence of gross negligence existed. substantive rights in this boundary dispute and that they
Armstrong was injured when her Nissan 300ZX could not proceed under the Texas Declaratory
accelerated into a telephone pole despite her attempts to Judgments Act to recover attorney's fees.
stop it. Armstrong sued Nissan, alleging DTPA
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C. Condemnation/Taking land that would be behind the wall. The owner argued
1. Sheffield Dev. Co., Inc. v. City of Glenn Heights, that the wall would affect his remainder property and
S.W.3d (Tex. 2004), 47 Tex. Sup. Ct. J. 327 affect future development. As a result, the owner
(March 8, 2004) [02-0033]. contended, the property had suffered a diminished market
The issue in this case is whether an unconstitutional perception.
“taking” without compensation is proven by a city’s The jury awarded the owner $400,000 as
rezoning that enlarged residential lots and cut down on compensation for diminution to the remainder property’s
the number of houses the developer expected to sell. market perception. The County appealed, arguing that
Sheffield sought the city’s assurance that it would not the trial court erred in allowing the jury to consider
“down zone” the property before it bought the property. unsafe access and diminished market perception in
After the sale, the city halted development by prohibiting determining the post-taking market value of the
plat applications in a series of moratoriums. Sheffield remainder property. The court of appeals affirmed. The
claims it filed its plat when no moratorium was in effect, Supreme Court granted the County’s petition for review.
but it was returned with no action taken. The trial court
held the city’s rezoning for larger lots took Sheffield’s I. Penalty Fines
property without compensation, but the moratorium did 1. Brown v. De La Cruz, 109 S.W.3d 73 (Tex.
not. The court of appeals affirmed in a divided decision App.—El Paso 2003), pet. for review granted, 47
that the rezoning was an unconstitutional taking, but Tex. Sup. Ct. J. 305 (Feb. 27, 2004) [03-0703].
reversed on the moratorium issue, finding the moratorium The issue in this case alleging delay in delivering a
extension was a taking too. deed for property purchased by an executory contract is
The Supreme Court affirmed in part, reversed in whether the purchaser can sue to recover penalties under
part, rendered in part and remanded in part. The Court Texas Property Code section 5.102. De la Cruz
held that the city’s rezoning was not a taking because it purchased a parcel of land in El Paso from Brown via
substantially advanced legitimate government interests in executory contract. Under such a sale, legal title does not
controlling the city’s population and cost of services. In transfer until the buyer makes all the payments so the
addition, although the financial effect on the developer purchase price is paid in full. The contract required
was severe, the jury’s verdict found that the property Brown to deliver a warranty deed to Cruz following
was still worth four times what it cost the developer. receipt of the final payment.
The Court further held that the moratorium was not an Almost four years later, Cruz sued Brown when he
unconstitutional taking but remanded to the trial court to discovered Brown had not transferred the recorded legal
determine whether the developer’s damages claims title to the property to him at the time he made final
foreclosed his claim that his plat submission during a payment. Cruz argued that he was entitled to recover
hiatus in the moratorium entitled him to develop the approximately $650,000 in penalty fines under former
property according to the original zoning. section 5.102 (now section 5.079) of the Texas Property
Code, which imposes fines on the seller of real property
2. County of Bexar v. Santikos, 107 S.W.3d 677 (Tex. if the seller fails to transfer recorded legal title within
App.—San Antonio 2004), pet. for review granted, thirty days of receipt of the purchaser’s final payment.
47 Tex. Sup. Ct. J. 317 (March 8, 2004) [03-0655]. The trial court granted Brown’s motion for summary
The issues in this condemnation case are: (1) judgment, concluding there was no private cause of
whether the trial court erred by instructing the jury that action to enforce section 5.102. The court of appeals
it could consider diminished market perception and reversed, concluding section 5.102 provided a private
unsafe access because both were essentially claims of cause of action to Cruz for recovery of the statutory
diminished visibility and diminished access, which are penalties. The Supreme Court granted Brown’s petition
non-compensable; and (2) whether the damages awarded for review.
by the jury were excessive. Bexar County intended to
condemn less than half an acre of the owner’s XLI. STATUTE OF LIMITATIONS
undeveloped property in order to expand Loop 1604 with B. Tolling
a frontage road. The condemnation would take 215 feet 1. Flower Bluff Indep. Sch. Dist. v. Bass, S.W.3d
of the owner’s available frontage space. To build the (Tex. 2004), 47 Tex. Sup. Ct. J. 307 (Feb. 27,
new road, the Texas Department of Transportation and 2004) [01-1106].
the County would fill in the land, which would create a The issue is whether naming the wrong party in an
ten or eleven foot slope wall, affecting the 3.5 acres of appeal from a workers’ compensation ruling denying
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benefits tolls the statute of limitations from running his own property to commit suicide. The trial court
against the correct party. Bass sought judicial review of denied the plea. The court of appeals, with one justice
a Texas Workers’ Compensation Commission appeals dissenting, affirmed.
panel decision that denied benefits she was seeking for The Supreme Court reversed and dismissed the
an injury she sustained while employed by the school action against the hospital. The Court held that section
district. Bass originally named the Texas Association of 101.021(2) waives immunity for use of personal property
School Boards as the sole defendant. The Association, only when the governmental unit is itself the user. It
however, was not a proper defendant as third-party further held that merely providing someone with personal
administrator of workers’ compensation benefits. More property that is not itself inherently unsafe is not a “use”
than a year after the forty-day limitations period had within the meaning of the Texas Tort Claims Act. Thus,
expired, Bass amended her original petition to name Flour the Court concluded that because Cowan failed to allege
Bluff as a defendant. She served Flour Bluff more than that her husband’s death was caused by the hospital’s
a year after that. use of property, its immunity was not waived by section
The trial court granted summary judgment for both 101.021(2).
the Association and Flour Bluff. The court of appeals
affirmed the judgment for the Association but reversed XLVI. UTILITIES
the judgment for Flour Bluff, holding that a fact issue C. S t r a n d e d Costs/Excess Mitigation
existed on whether limitations had been tolled by the Credits/Interest
mistake in initially suing the wrong party. 1. CenterPoint Energy Inc. f/k/a Reliant Energy Inc. v.
The Supreme Court reversed and rendered Pub. Util. Comm’n of Tex., 101 S.W.3d 129 (Tex.
judgment that Bass take nothing, holding that the statute App.—Austin 2003), pet. for review granted, 47
of limitations barred Bass’s claim. The Court held that Tex. Sup. Ct. J. 241 (Jan. 30, 2004) [03-0396].
misidentification of a party will toll limitations if suit is The issues are: (1) whether the Public Utility
brought against a separate but related entity that uses a Commission exceeded its statutory authority by
similar trade name and the correct entity had notice of promulgating a rule that does not award interest on
the suit and was not misled or disadvantaged by the suit. “stranded costs” before the final calculation of those
Because the Association and Flour Bluff were two costs at a “true-up proceeding”; and (2) whether a utility
distinct parties that did not operate under a similar trade should recover interest on refunded “excess mitigation
name, Bass was required to sue Flour Bluff within the credits” if the Commission’s estimates of stranded costs
limitations period and to serve Flour Bluff with process turn out to be wrong. In 2000, privately-owned electric
within a reasonable time thereafter. utilities were required by the Legislature to “unbundle” or
separate their companies into power generation
XLIII. TEXAS TORT CLAIMS ACT companies, transmission companies, and retail electrical
D. Governmental “Use” providers. During the transition, the private companies
1. San Antonio State Hosp. v. Cowan, S.W.3d were also allowed to recover “stranded costs,” or costs
(Tex. 2004), 47 Tex. Sup. Ct. J. 221 (Jan. 9, 2004) prudently incurred during the time of regulation, approved
[02-0348]. by the Commission, and paid by “captive” customers.
The issue is whether a state hos pital waives its The Commission issued its Rule 25.263, which was
governmental immunity from a lawsuit by allowing a intended to direct the recovery of “stranded costs.” Two
patient on suicide watch to keep personal property that electric utilities brought direct appeals of Rule 25.264 to
he used to kill himself. The patient used a piece of pipe the court of appeals. That court held the Commission
from his walker and his suspenders to hang himself. exceeded its authority in promulgating some of the
Cowan, the patient’s wife, sued for negligence and gross challenged portions of the Rule. The court reversed and
negligence, claiming that the hospital had waived its remanded those portions to the Commission. The court
immunity from suit under section 101.021(2) of the Texas upheld the remaining challenged portions of the rule,
Tort Claims Act. Section 101.021(2) waives including rules which the utilities claim may in the future
governmental immunity for death caused by the “use of unlawfully deny interest payments to them on certain
tangible personal or real property if the governmental unit stranded costs. The Supreme Court granted both
would, were it a private person, be liable. . . .” The utilities’ petitions for review.
hospital filed a plea to the jurisdiction seeking to dis miss
the suit, arguing that the Act’s waiver provision for
personal property use did not include a patient’s use of
9
Supreme Court Update Supplement Chapter 11
XLVIII. WORKERS’ COMPENSATION
E. Joint or Co-Employees
1. Garza v. Exel Logistics Inc. & Interim Servs. Pac.
LLC, 100 S.W.3d 280 (Tex. App.—Houston [1st
Dist.] 2002), pet. for review granted, 47 Tex. Sup.
Ct. J. 241 (Jan. 30, 2004) [02-1187].
The issue in this personal-injury case against a
temporary staffing company and its client is whether both
companies were joint or co-employers, precluding
common-law claims against them under the Texas
Workers’ Compensation Act’s exclusive remedy
provision. Garza was employed by Interim, a temporary
employment agency. Interim provided Garza with his
paychecks, provided at least some supervision, and
provided workers’ compensation insurance. Interim
contracted with Exel to provide Exel with temporary
workers. The contract between them did not specify
whether Exel had the right to control those workers.
While working at Exel, Garza was injured. He received
workers’ compensation benefits. Garza then brought a
common-law negligence action against Exel, alleging that
because Exel was not his co-employer, Exel was not
immune from a common-law negligence action. Exel
moved for summary judgment, contending that it was
Garza’s co-employer as a matter of law and therefore
the “exclusive remedy” provision of the workers’
compensation statute applied to it.
The trial court granted Exel’s motion for summary
judgment and dismissed the case. The court of appeals
affirmed. It reviewed the summary judgment evidence
as to whether Exel had the right to control Garza and
held: “Neither the contract, nor any of the deposition
testimony negates Exel’s right to control Garza’s work.
As such, no issue of fact is raised on the dual-employer
theory. . . . Garza cannot recover for personal injuries
against Exel, and the grant of summary judgment was
proper.” The Supreme Court granted Garza’s petition
for review.
10
_________________________________________
SUPREME COURT UPDATE SUPPLEMENT II
_________________________________________
HON. SCOTT BRISTER
Justice
The Supreme Court of Texas
SUSAN BOSTIC
Staff Attorney
The Supreme Court of Texas
KARA ALTENBAUMER-PRICE
ROXANNE WILSON
Law Clerks
The Supreme Court of Texas
Special thanks to all the Staff Attorneys and
Law Clerks at the Supreme Court of Texas
for their substantial contributions.
State Bar of Texas
PRACTICE BEFORE THE TEXAS SUPREME COURT
April 16, 2004
Austin
CHAPTER 11
Supreme Court Update Supplement II Chapter 11
SUPREME COURT UPDATE defendant–on painfully short notice and before evidence
has been developed–to force the plaintiff either to
SUPPLEMENT II present evidence on the ultimate issue in the lawsuit or
lose the right to a jury trial on the merits. Justice
1. Tex. Dept. of Parks & Wildlife v. Miranda,
Jefferson would have held that the Mirandas' pleadings
S.W.3d , 47 Tex. Sup. Ct. J. (April 2, 2004) [01-
alleged sufficient facts to confer jurisdiction.
0619]. In a dissenting opinion joined by Justices O’Neill and
This case involves a plea to the jurisdiction based on
Schneider, Justice Brister called into question the
sovereign immunity. The issue is whether the trial court
department's use of a “plea to the jurisdiction”–the
should have considered evidence beyond the pleadings in
current “white elephant” of motions practice–to force the
deciding whether the Parks & Wildlife Department's
trial judge (and ultimately the Court) to make an ad hoc
alleged gross negligence waived its immunity under the
decision about whether jurisdiction should be determined
recreational use statute. The Mirandas sued the
by reference to pleadings or evidence. Justice Brister
department after Maria Miranda suffered severe injuries
said the Court should have reversed and remanded for
when a pecan tree branch fell on her head at a Garner
(1) the department to specify whether its plea to the
State Park campsite. The Mirandas alleged the tree
jurisdiction is a challenge to the pleadings (by special
posed a danger that the department recognized but failed
exception) or the evidence (by summary judgment), (2)
to fix and about which the department consciously and
the Mirandas to respond in compliance with the rules of
deliberately failed to warn the Mirandas. The
civil procedure, and (3) the lower courts to address the
department responded that the Mirandas’ claim was
governmental immunity issue in accordance with the
controlled by the recreational use statute because they
usual rules governing disposition and review of those
raised a premises defect at a state campground. The
types of motions.
court of appeals affirmed the trial court’s denial of the
department's jurisdictional plea, reasoning that the trial
2. Storage & Processors Inc. v. Reyes, S.W.3d ,
court could not delve into the substance of the Mirandas’
47 Tex. Sup. Ct. J. (April 2, 2004) [02-1008].
claims because the department did not specifically allege The principal issue is whether a company's accident
the Mirandas’ pleadings were a sham to wrongfully
plan in lieu of worker's compensation coverage must
obtain jurisdiction.
satisfy fair-notice requirements before its release from
The Supreme Court held that the trial court was
common-law liability will be effective. Reyes sued his
required, under Bland Independent School District v.
employer and an employee for negligence after being run
Blue, 34 S.W.3d 547 (Tex. 2000), to examine the
over by a forklift truck. Before Reyes filed suit, he
evidence on which the parties relied to determine if a fact
accepted benefits under the accident plan. Reyes's
issue existed regarding the department’s alleged gross
employer, S&P, moved for summary judgment based on
negligence. To establish waiver under the Texas Tort
Reyes’s voluntary acceptance of the accident plan and
Claims Act and the recreational use statute, plaintiffs
benefits under it. The trial court granted summary
must plead gross negligence. If the plaintiffs’ factual
judgment, but the court of appeals reversed, holding that
allegations are challenged with supporting evidence
the pre-injury release that Reyes signed did not satisfy
necessary to the jurisdictional plea, the plaintiffs can
fair-notice requirements.
avoid dismissal only if there is a genuine issue of material The Supreme Court held that a nonsubscriber
fact. In this case, the Supreme Court determined the
benefit plan that does not provide state worker’s
Mirandas failed to raise a genuine issue of material fact
compensation benefits must meet express-negligence and
on gross negligence.
conspicuousness requirements. Although liability waivers
In dissent, Justice Jefferson argued that the Court’s
exchanged for benefits under such plans do not involve
holding is inconsistent with the distinction Bland draws
the same extraordinary risk-shifting as releases and
between requiring plaintiffs to prove preliminary facts as
indemnity agreements to which fair-notice requirements
a predicate to the trial court’s power to entertain the
apply, the law has long accorded special status and given
merits and requiring plaintiffs to present the merits of
special protection to workers. The Court said that it
their cases or suffer dismissal. According to Justic e
would substantially undercut the public policy underlying
Jefferson, Bland’s proper interpretation is that if a plea
the worker’s compensation system if employers were
to the jurisdiction requires the trial court to wade deeply
allowed to induce their employees to sign a release in
into the lawsuit’s merits, it is not a valid plea. The
exchange for a benefit plan providing something less than
Court's opinion, Justice Jefferson said, permits a
subscriber-level benefits without any guarantee that the
1
Supreme Court Update Supplement II Chapter 11
workers understand the plan. The Court pointed out that
its holding in this case constitutes a limited extension of
the fair-notice requirements to less than total risk-shifting
because of the unique public policy concerns underlying
the worker’s compensation scheme. To the extent the
court of appeals suggested that the fair notice
requirements apply to a contract that shifts any degree of
risk, the Court disapproved of that court’s opinion. The
Court remanded the case because there was a disputed
fact question about whether Reyes had actual knowledge
of the plan’s terms, which S&P asserted as an
affirmative defense.
In a concurring opinion, Justice Schneider said that
there is an additional reason why the fair-notice
requirements should apply to all nonsubscriber
agreements, which is that workers entering into these
types of agreements are uniformly less sophisticated than
the employers who draft them.
3. Reata Constr. Corp. v. City of Dallas, S.W.3d
, 47 Tex. Sup. Ct. J. (April 2, 2004) [02-1031].
The issue in this case is whether the City of Dallas
waived its immunity from suit by intervening in a lawsuit
to assert damages claims. Reata filed a third-party claim
against the City after property owners sued Reata for
flooding a building when it inadvertently drilled into a
water main. The City answered Reata’s claim by
asserting that it had not waived immunity under the
Texas Tort Claims Act. The City subsequently
intervened in the original lawsuit, seeking damages from
Reata for negligence. The trial court denied the city’s
jurisdictional plea, but the court of appeals reversed,
holding that the City's intervention did not waive immunity
from suit.
The Supreme Court held that the City waived any
immunity it might have had by intervening in the lawsuit
with damage claims against Reata. Under Kinnear v.
Texas Commission on Human Rights, 14 S.W.3d 299
(Tex. 2000), a governmental entity that files suit waives
immunity from suit as to any counterclaims filed as a
consequence of the suit. The Court said that there was
no reason to differentiate between a governmental entity
as a plaintiff and a governmental entity as a plaintiff-
intervenor. Because the appeal concerned a plea to the
jurisdiction, the Court limited its review to whether the
City waived immunity from suit and did not consider
whether the City also waived immunity from liability.
2
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