NOTEWORTHY PRECEDENT SET BY BRISTER OPINION IN 2006
Judicial Disqualification: Justice of the First Court of Appeals Should Have Stepped Aside Because of Prior Association with Law Firm of Attorney Representing a Party in the Case
Tesco Am., Inc. v. Strong Indus., Inc. No. 04-0269 (Tex. Mar. 17, 2006)(Brister) 04-0269 TESCO AMERICAN, INC. D/B/A TESCO/WILLIAMSEN v. STRONG INDUSTRIES, INC. AND BROOKS STRONG; from Harris County; 1st district (01‑01‑00086‑CV, 129 S.W.3d 606, 02‑05‑04) The Court reverses the court of appeals' judgment and remands the case to that court. Justice Brister delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice O'Neill, Justice Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett Justice Hecht delivered a dissenting opinion Majority opinion by Brister Tesco v. Strong (Tex. Mar. 17, 2006)(Brister) Dissenting Opinion by Justice Hecht Subsequent history: Appeal Was Dismissed Per Agreement of the Parties On Remand to the First Court
Recent 2006 Opinions Authored by Justice Scott A. Brister
Tony Gullo Motors I v. Chapa, No. 04-0961 (Tex. Dec. 22, 2006)(Brister) [consumer law, car purchase, DTPA, election of remedies, exemplary damages, constitutional cap] 04-0961 TONY GULLO MOTORS I, L.P. AND BRIEN GARCIA v. NURY CHAPA; from Montgomery County; 9th district (09 03 00568 CV, ___ S.W.3d ___, 08 26 04) 2 petitions The Court remands to the court of appeals for further proceedings consistent with this opinion. Justice Brister delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Green, and Justice Willett Justice Johnson delivered a concurring opinion Justice O'Neill delivered a dissenting opinion (Justice Medina not sitting)
Lexington Inc. Co. v. Strayhorn No. 04-0429(Tex. Dec. 1, 2006)(Brister) [state taxes, premium taxes, insurance companies] LEXINGTON INSURANCE COMPANY, LANDMARK INSURANCE COMPANY, AND AMERICAN INTERNATIONAL SPECIALTY LINES INSURANCE COMPANY v. CAROLE KEETON STRAYHORN, COMPTROLLER OF PUBLIC ACCOUNTS OF THE STATE OF TEXAS, AND GREG ABBOTT, ATTORNEY GENERAL OF THE STATE OF TEXAS; from Travis County; 3rd district (03‑03‑00169‑CV, 128 S.W.3d 772, 02‑20‑04) The Court affirms the court of appeals' judgment and remands the case to the trial court. Justice Brister delivered the opinion of the Court (Chief Justice Jefferson not sitting)
Justice Brister delivered a dissenting opinion, joined by Chief Justice Jefferson, Justice O'Neill, and Justice Medina
After buying up distributors of the leading soft drink brands in the Ark-La-Tex area, Coke began demanding that retailers stop advertising competing brands, stop selling some of them, and artificially raise the prices of the rest. Retailers who refused to play along were punished with higher wholesale prices; only Wal-Mart (a behemoth in its own right) successfully refused.
There is a line between competing and bullying, and the jury found that Coke crossed it. As evidence in the record would allow reasonable jurors to reach that conclusion, I would not render judgment to the contrary; because the Court does, I respectfully dissent.
Unlike most other statutes, the antitrust laws are like the common law in that “varying times and circumstances” may give them “changing content.”[90] Although Texas has had its own antitrust statutes since 1889, the Legislature adopted the current law in 1983 to give Texas courts broader powers and greater flexibility in addressing new economic and business conditions.[91] We have addressed the amended law only rarely, and never found a violation of it.[92] It is a shame the Court does so again today, allowing a monopolist to fix prices, ban consumer ads, and remove competing products.
Because higher prices and fewer choices injured competition in the Ark-La-Tex region, not just Coke’s competitors, I would remand for the bottlers to establish their damages. Because the Court does not, I respectfully dissent. - Scott Brister
City of San Antonio v. Hartman No. 05-0147 (Tex. Aug. 31, 2006)(Brister) CITY OF SAN ANTONIO v. MARK HARTMAN, ET AL.; from Bexar County; 4th district (04‑04‑00162‑CV, 155 S.W. 3d 460, 11‑10‑04) The Court reverses the court of appeals' judgment and renders judgment. Justice Brister delivered the opinion of the Court (Justice Green not sitting)
Fiess v. State Farm Lloyds No. 04-1104 (Tex. Aug 31, 2006)(Brister)(certified question from the Fifth Circuit) [insurance, coverage for mold damage to home, contract construction] RICHARD FIESS AND STEPHANIE FIESS v. STATE FARM LLOYDS motion to strike post-submission brief denied motion to strike post-submission supplemental brief denied motion for sanctions denied The Court answers the question certified by the United States Court of Appeals for the Fifth Circuit. Justice Brister delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Green, Justice Johnson, and Justice Willett Justice Medina delivered a dissenting opinion, joined by Justice O'Neill ("Courts adhere to prior precedents for reasons of efficiency, fairness, and legitimacy.[49] For more than a century this Court has held that in construing insurance policies “where the language is plain and unambiguous, courts must enforce the contract as made by the parties, and cannot make a new contract for them, nor change that which they have made under the guise of construction.”[50] If the political branches of Texas government decide that mold should be covered in Texas insurance policies, they have tools at their disposal to do so; Texas courts must stick to what those policies say, and cannot adopt a different rule when a “crisis” arises.") Accordingly, for the reasons and to the extent stated in this opinion, we answer the certified question “No.” Justice Medina delivered a dissenting opinion, joined by Justice O'Neill