June 30, 2006 - Texas Supreme Court Hands Down Decisions in Numerous Sovereign Immunity Cases
Holds that Government Entities Waive Immunity When They Sue or Assert Claims of Their Own
Reata v. City of Dallas (Tex. June 30, 2006) 02-1031 REATA CONSTRUCTION CORPORATION v. CITY OF DALLAS; from Dallas County; 5th district (05 01 01780 CV, 83 SW3d 392, 08 14 02) motion to strike The State of Texas amicus curiae brief in support of motion for rehearing dismissed as moot The Court withdraws its opinion issued April 2, 2004, and issues a substituted opinion. The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Johnson delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Wainwright, Justice Medina, and Justice Green Justice Brister delivered a concurring opinion, joined by Justice Hecht and Justice O'Neill (Justice Willett not sitting)
The issue in this case is whether the City of Dallas has governmental immunity from suit for claims by Reata Construction Corporation arising from the City’s alleged negligence. The court of appeals held that the City had immunity. We conclude that the City does not have immunity from suit as to Reata’s claims which are germane to, connected with, and properly defensive to the City’s claims, to the extent Reata’s claims offset those asserted by the City. We reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings.
Reata also claims the City’s immunity from suit is waived by section 51.075 of the Local Government Code, which provides that a home- rule municipality “may plead and be impleaded in any court.” See Tex. Loc. Gov’t Code § 51.075. However, waiver of immunity for tort claims is governed by the Texas Tort Claims Act. See Tex. Civ. Prac. & Rem. Code ch. 101; Miranda, 133 S.W.3d at 224-25 (holding that the governmental entity was immune from suit for a tort unless it was expressly waived by the Tort Claims Act). Under rules of statutory construction, we give precedence to the Tort Claims Act over section 51.075 because the Tort Claims Act is the later-enacted, more specific statute regarding waiver of immunity in tort cases. See Tex. Gov’t Code § 311.026. Moreover, in Tooke v. City of Mexia, ___ S.W. 3d ___, ___ (Tex. 2006), we have held that the phrase “plead and be impleaded” in section 51.075 does not clearly and unambiguously reflect legislative intent to waive immunity from suit. See Taylor, 106 S.W.3d at 697-98 (Tex. 2003).
Says "Power to Sue and be Sued" Clauses Do Not Mean Entities May Be Sued
Tooke v. City of Mexia (Tex. June 30, 2006)(opinion by Hecht) 03-0878 JUDY TOOKE AND EVERETT TOOKE D/B/A TOOKE AND SONS AND D/B/A NATURE'S WAY ORGANIC LANDSCAPING v. THE CITY OF MEXIA; from Limestone County; 10th district (10 02 00261 CV, 115 SW3d 618, 07 23 03) motion for court to take judicial notice granted The Court affirms the court of appeals' judgment.
Scores of Texas statutes provide, variously, that individuals and entities, public and private, may (“sue and (or) be sued”, “(im)plead and (or) be impleaded”, “be impleaded”, “prosecute and defend”, “defend or be defended”, “answer and be answered”, “complain and (or) defend”, or some combination of these phrases, in court.[1] The phrases are also used in municipal charters and ordinances and in corporate articles and bylaws. Read in context, they sometimes waive governmental immunity from suit, sometimes do not, and sometimes have nothing whatever to do with immunity, referring instead to the capacity to sue and be sued or the manner in which suit can be had (for example, by service on specified persons). Because immunity is waived only by clear and unambiguous language,[2] and because the import of these phrases cannot be ascertained apart from the context in which they occur, we hold that they do not, in and of themselves, waive immunity from suit.”)
Satterfiled v. Irving ISD (Tex. June 30, 2006) 04-0175 SATTERFIELD & PONTIKES CONSTRUCTION, INC. v. IRVING INDEPENDENT SCHOOL DISTRICT; from Dallas County; 5th district (05 03 00004 CV, 123 SW3d 63, 09 26 03) as amended as supplemented Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion (Justice Willett not sitting)
City of Houston v. Clear Channel Outdoor, Inc. (Tex. June 30, 2006) 04-0406 THE CITY OF HOUSTON, TEXAS v. CLEAR CHANNEL OUTDOOR, INC.; from Harris County; 14th district (14 03 00022 CV, 161 SW3d 3, 01 15 04) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion (Justice Wainwright, Justice Brister, and Justice Willett not sitting)
McMahon Contracting v. City of Carrollton (Tex. June 30, 2006) 04-0622 MCMAHON CONTRACTING, L.P. v. CITY OF CARROLLTON; http://www.supreme.courts.state.tx.us/Historical/2006/jun/040622.htm from Dallas County; 5th district (05 04 00089 CV, 134 SW3d 925, 05 26 04) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion (Justice Brister and Justice Willett not sitting)
City of Houston v. Allco, Inc. (Tex. June 30, 2006)(motion for rehearing filed) 04-0730 CITY OF HOUSTON v. ALLCO, INC.; from Harris County; 1st district (01 02 00812 CV, ___ SW3d ___, 07 01 04) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion (Justice Willett not sitting)
City of Tyler v. Beck (Tex. June 30, 2006) 04-0813 CITY OF TYLER, TEXAS v. TIMOTHY L. BECK AND SUSAN G. BECK; from Smith County; 12th district (12 03 00170 CV, ___ SW3d ___, 07 14 04) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion
City of Houston v. Jones (Tex. June 30, 2006) 04-0879 CITY OF HOUSTON v. KENNETH S. JONES; from Harris County; 1st district (01 03 00831 CV, ___ SW3d ___, 08 19 04) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion (Justice Willett not sitting)
City of Houston v. Clark (Tex. June 30, 006) 04-0930 THE CITY OF HOUSTON v. DONALD CLARK; from Harris County; 14th district (14 03 00399 CV, 142 SW3d 350, 02 24 04) The Court reverses the court of appeals' judgment and remands the case to that court. Justice O'Neill delivered the opinion of the Court
City of Houston v. Boyer, Inc. (Tex. June 30, 2006) 04-1021 THE CITY OF HOUSTON v. BOYER, INC.; from Harris County; 1st district (01 04 00153 CV, ___ SW3d ___, 09 30 04) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion (Justice Willett not sitting)
City of Waco v. Kelley (Tex. June 30, 2006) 04-1113 CITY OF WACO, TEXAS v. LARRY KELLEY; from McLennan County; 10th district (10 03 00214 CV, ___ SW3d ___, 10 29 04) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion
PKG Contracting v. City of Mesquite (Tex. June 30, 20060 04-1139 PKG CONTRACTING, INC. v. CITY OF MESQUITE; from Dallas County; 5th district (05 04 00169 CV, 148 SW3d 209, 09 30 04) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion (Justice Willett not sitting)
Columbus I.S.D. v. Five Oaks Achievement Ctr. (Tex. June 30, 2006) 05-0414 COLUMBUS INDEPENDENT SCHOOL DISTRICT v. FIVE OAKS ACHIEVEMENT CENTER; from Austin County; 14th district (14 04 00129 CV, 162 SW3d 812, 04 21 05) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion (Justice Willett not sitting)
Sisk Utilities, Inc. v. City of Greenville (Tex. June 30, 2006) (Tex. June 30, 2006) 05-0601 SISK UTILITIES, INC. v. CITY OF GREENVILLE, TEXAS; from Hunt County; 5th district (05 04 01079 CV, 164 SW3d 931, 06 15 05) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion (Justice Willett not sitting)
June 30, 2006 Nonimmunity Cases
Fifth Club, Inc. v. Ramirez (Tex. June 30, 2006) [employee v. independent contractor, security guard, employer liability, negligent hiring, nightclub held not liable] http://www.supreme.courts.state.tx.us/Historical/2006/jun/040550.htm 04-0550 FIFTH CLUB, INC. AND DAVID A. WEST v. ROBERTO RAMIREZ; from Travis County; 3rd district (03 03 00241 CV, 144 SW3d 574, 04 29 04) The Court affirms in part and reverses in part the court of appeals’ judgment, and renders judgment. Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice Brister, and Justice Medina joined, and in which Justice Hecht, Justice Wainwright, Justice Johnson, and Justice Willett joined as to Parts I, II,and III [ (“In this case we revisit the rule that an employer is generally not liable for the acts of an independent contractor unless the employer exercises sufficient control over the details of the independent contractor’s work. See Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778, 783 (Tex. 2001). We do so to consider whether a “personal character exception” makes a business owner’s duties to the public nondelegable when contracting for private security services to protect its property. Because we do not recognize a personal character exception to the rule that an owner is not liable for the tortious acts of independent contractors, and because the evidence in this case is legally insufficient to support the jury’s negligence, malice, and exemplary damages findings against the owner, we reverse and render judgment in the owner’s favor. We do find legally sufficient evidence to support the future mental anguish damages award against the independent contractor and affirm the judgment as to the contractor.”) Justice Brister delivered a concurring opinion, joined by Chief Justice Jefferson [ pdf ] http://www.supreme.courts.state.tx.us/Historical/2006/jun/040550c.htm Justice Willett delivered a dissenting opinion, joined by Justice Hecht, Justice Wainwright, and Justice Johnson [ pdf ] http://www.supreme.courts.state.tx.us/Historical/2006/jun/040550d.htm
Loram Maintenance of Way, Inc. v. Ianni (Tex. June 30, 2006) [No employer liability for employee’s off-duty conduct, law of the case doctrine] http://www.supreme.courts.state.tx.us/Historical/2006/jun/040666.htm 04-0666 LORAM MAINTENANCE OF WAY, INC. v. DAVID IANNI; from El Paso County; 8th district (08 02 00049 CV, 141 SW3d 722, 06 30 04) The Court reverses the court of appeals' judgment and renders judgment. Justice Green delivered the opinion of the Court [ pdf ] (“In general, an employer owes no duty to protect the public from the wrongful acts of its off-duty employees that are committed off the work site unless the employer exercises control over the employees’ off-duty activities that cause harm. See Otis Eng’g Corp. v. Clark, 668 S.W.2d 307, 309, 311 (Tex. 1983). Here, we are asked to decide whether an employer owes a duty to protect the public from an employee’s wrongful off-duty conduct, even though the employer exercised no control over the employee’s off-duty activities, because the employer knew its employee was drug- impaired and had threatened violence to others. We conclude that the employer owes no such duty.”) Justice O'Neill delivered a concurring opinion, joined by Chief Justice Jefferson http://www.supreme.courts.state.tx.us/Historical/2006/jun/040666c.htm
Guideline Elite Ins. o. v. Fielder Road Baptist Church (Tex. June 30, 2006) [duty to defend, insurance policy coverage dispute, eight-corners rule) http://www.supreme.courts.state.tx.us/Historical/2006/jun/040692.htm 04-0692 GUIDEONE ELITE INSURANCE COMPANY F/K/A PREFERRED ABSTAINERS INSURANCE COMPANY v. FIELDER ROAD BAPTIST CHURCH; from Tarrant County; 2nd district (02 02 00231 CV, 139 SW3d 384, 05 20 04) motion to dismiss petition for review for lack of jurisdiction, and in the alternative, motion to strike evidence not part of the record denied The Court affirms the court of appeals' judgment. Justice Medina delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice O'Neill, Justice Green, and Justice Johnson (“In this declaratory judgment action, we are asked to create an exception to the complaint-allegation or eight-corners rule. The eight-corners rule provides that when an insured is sued by a third party, the liability insurer is to determine its duty to defend solely from terms of the policy and the pleadings of the third-party claimant. Resort to evidence outside the four corners of these two documents is generally prohibited. The trial court, relying on evidence extrinsic to the policy and pleadings, declared that the insurer had no duty to defend the underlying claim against its insured. The court of appeals, however, reversed, concluding that because the circumstances of the case presented no reason to create an exception to the eight-corners rule, the trial court had erred in using extrinsic evidence to defeat the insurer’s duty to defend. 139 S.W.3d 384. We agree and, accordingly, affirm the court of appeals’ judgment.”) Justice Hecht delivered a concurring opinion, joined by Justice Wainwright, Justice Brister, and Justice Willett [ pdf ] http://www.supreme.courts.state.tx.us/Historical/2006/jun/040692c.htm
City of Tyler v. Beck (Tex. June 30, 2006) http://www.supreme.courts.state.tx.us/Historical/2006/jun/040813.htm [eminent domain, condemnation proceeding, judicial determination, objection to administrative award] 04-0813 CITY OF TYLER, TEXAS v. TIMOTHY L. BECK AND SUSAN G. BECK; from Smith County; 12th district (12 03 00170 CV, ___ SW3d ___, 07 14 04) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to the trial court. Per Curiam Opinion [ pdf ] (“Judicial condemnation proceedings commence when an objection to the award is filed; if service of citation is not timely secured, the award is subject to reinstatement. In this case, both parties invoked the judicial process by filing objections to the commissioners’ award, and each participated in the judicial proceedings with notice of the other’s objections. Under these circumstances, we hold that the purposes of the formal citation requirement were met and the trial court erred in dismissing the case. Accordingly, we reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings.”)
Sudan v. Sudan (tex. June 30, 2006) [divorce agreement, alimony, spousal support, no economic duress] http://www.supreme.courts.state.tx.us/Historical/2006/jun/040921.htm 04-0921 PHILIP P. SUDAN, JR. v. MARGARET DYE SUDAN, NOW KNOWN AS MAGGIE MACKENZIE; from Harris County; 14th district (14 01 00854 CV, 145 SW3d 280, 06 17 04) 2 petitions Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petitions for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment. Per Curiam Opinion [ pdf ] In this suit to enforce a settlement agreement incorporated in a divorce decree, we consider whether there is any evidence that the ex-wife was coerced into relinquishing her rights to future alimony payments. The court of appeals reversed a summary judgment in favor of the ex-husband, concluding there was some evidence that the ex-wife was under economic duress when she gave up her rights. 145 S.W.3d 280, 288. We disagree that there is evidence of economic duress here and accordingly render judgment for the ex-husband.
Hoover Slovacek LLP v. Walton (Tex. June 30, 2006) [contingency fee contract, unconscionable fee arrangements] http://www.supreme.courts.state.tx.us/Historical/2006/jun/041004.htm 04-1004 HOOVER SLOVACEK L.L.P., FORMERLY HOOVER, BAX & SLOVACEK, L.L.P. v. JOHN B. WALTON, JR.; from Winkler County; 8th district (08 03 00366 CV, 149 SW3d 834, 10 14 04) The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the trial court. Chief Justice Jefferson delivered the opinion of the Court, joined by Justice O'Neill, Justice Wainwright, Justice Brister, Justice Green, and Justice Johnson [ pdf ] Hoover’s termination fee provision penalized Walton for changing counsel, granted Hoover an impermissible proprietary interest in Walton’s claims, shifted the risks of the representation almost entirely to Walton’s detriment, and subverted several policies underlying the use of contingent fees. We hold that this provision is unconscionable as a matter of law, and therefore, unenforceable. We affirm that part of the court of appeals’ judgment reversing the trial court’s judgment, but reverse its take-nothing judgment, and, in the interest of justice, remand this case to the trial court for further proceedings consistent with this opinion. Tex. R. App. P. 60.2(a), (d), 60.3. Justice Hecht delivered a dissenting opinion, joined by Justice Medina and Justice Willett http://www.supreme.courts.state.tx.us/Historical/2006/jun/041004d.htm
City of Houston v. Clark (Tex. June 30, 2006) 04-0930 THE CITY OF HOUSTON v. DONALD CLARK; http://www.supreme.courts.state.tx.us/Historical/2006/jun/040930.htm from Harris County; 14th district (14 03 00399 CV, 142 SW3d 350, 02 24 04) The Court reverses the court of appeals' judgment and remands the case to that court. Justice O'Neill delivered the opinion of the Court (“In this case, we must decide whether Chapter 143 of the Local Government Code, known as the Fire Fighter and Police Officer Civil Service Act, authorizes municipalities to appeal adverse decisions of independent hearing examiners. We hold that it does. Accordingly, we reverse the court of appeals’’ judgment of dismissal and remand the case to that court for consideration of the City of Houston’’s appeal. “)
City of Waco v. Kelley (Tex. June 30, 2006) http://www.supreme.courts.state.tx.us/Historical/2006/jun/041113.htm 04-1113 CITY OF WACO, TEXAS v. LARRY KELLEY; from McLennan County; 10th district (10 03 00214 CV, ___ SW3d ___, 10 29 04) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion Larry Kelley, Waco’s Assistant Chief of Police, was suspended indefinitely by the Chief of Police for his arrest while driving under the influence of alcohol. Kelley appealed the suspension to an independent third party hearing examiner, who found the charges were proven but reduced the indefinite suspension to a 180-day suspension with reinstatement at the rank of sergeant. The examiner also awarded Kelley back pay. The City challenged the decision on various grounds in its appeal to district court pursuant to Section 143.057(j) of the Local Government Code. Tex. Loc. Gov’t Code § 143.057(j). The trial court upheld the examiner’s decision. On the City’s appeal, the court of appeals vacated the district court’s judgment and dismissed the case for lack of jurisdiction, concluding that the City had no right to appeal from an independent hearing examiner’s decision. ___ S.W.3d ___, ___. In this Court, the City argues that municipalities have the right to appeal an independent hearing examiner’s decision. For the reasons explained today in City of Houston v. Clark, ___ S.W.3d ___ (Tex. 2006), we agree that the City of Waco has a right to such an appeal under Section 143.057(j) of the Local Government Code.
In re Olga Palacios (Tex. June 30, 2006) http://www.supreme.courts.state.tx.us/Historical/2006/jun/050038.htm [arbitration] 05-0038 IN RE OLGA PALACIOS; from Travis County; 3rd district (03 04 00630 CV, ___ SW3d ___, 12 02 04) Per Curiam Opinion
O’Donnell v. Smith (Tex. June 30, 2006) http://www.supreme.courts.state.tx.us/Historical/2006/jun/050072.htm [attorney malpractice, estate, probate] 05-0072 THOMAS O'DONNELL, EXECUTOR OF THE ESTATE OF CORWIN D. DENNEY v. PAUL H. SMITH, ET AL.; from Bexar County; 4th district (04 04 00108 CV, ___ SW3d ___, 12 15 04) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court vacates the court of appeals' judgment and remands the case to that court. Per Curiam Opinion One of the issues in this legal malpractice case is whether an estate’s personal representative can sue the decedent’s former attorneys for malpractice they are alleged to have committed in advising the decedent in his capacity as executor of his wife’s estate. .... without hearing oral argument, we grant the petition for review without reference to the merits, vacate the court of appeals’ judgment, and remand this case to that court for reconsideration in light of our decision in Belt v. Oppenheimer, Blend, Harrison & Tate, Inc., ___ S.W.3d ___ (Tex. 2006).
In Re Wilson Constr. Co. (Tex. June 30, 2006) [arbitration, interlocutory appeals ILA or mandamus?] http://www.supreme.courts.state.tx.us/Historical/2006/jun/050326.htm 05-0326 IN RE D. WILSON CONSTRUCTION COMPANY, ET AL.; from Cameron County; 13th district (13 04 00333 CV, ___ SW3d ___, 02 10 05) The Court conditionally grants the petition for writ of mandamus. Justice Willett delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Medina, Justice Green, and Justice Johnson - consolidated with - 05-0327 AMERICAN STANDARD AND THE TRANE COMPANY, ET AL. v. BROWNSVILLE INDEPENDENT SCHOOL DISTRICT; http://www.supreme.courts.state.tx.us/Historical/2006/jun/050326.htm from Cameron County; 13th district (13 04 00184 CV, ___ SW3d ___, 02 10 05) The Court dismisses the petition for review as moot. (“In this consolidated proceeding, we decide whether the court of appeals had jurisdiction over an interlocutory appeal under the Texas Arbitration Act and whether the parties’ arbitration agreements are ambiguous. We hold that the court of appeals had jurisdiction over the interlocutory appeal and that the agreements are not ambiguous.”) Justice Brister delivered a concurring opinion http://www.supreme.courts.state.tx.us/Historical/2006/jun/050326c.htm (“I agree that the court of appeals erred in dismissing the petitioners’ interlocutory appeal, and join in the Court’s judgment. I disagree that we should continue requiring litigants to pursue parallel mandamus and interlocutory appeal proceedings in arbitration cases. This unnecessary duplication makes arbitration more cumbersome and costly than other cases, rather than the “simplicity, informality, and expedition” intended for them. Mitsubishi Motors Corp. v. Soler Chrysler Plymouth, Inc., 473 U.S. 614, 628 (1985). An interlocutory appeal is proper to enforce arbitration agreements under the Texas Arbitration Act. See Tex. Civ. Prac. & Rem. Code § 171.098. Mandamus is proper to enforce arbitration agreements under the Federal Arbitration Act. See In re Weekley, 180 S.W.3d 127, 130 (Tex. 2005) ... Parties should not have to file both an interlocutory appeal and an original proceeding; even attorneys who can predict which one an appellate court will find proper may hesitate to gamble with their client’s money. I would allow them to file either, and then have the appellate courts treat it as they think proper.”)
Orders / Opinions through June 23, 2006
State of Texas v. Shumake (Tex. June 23, 2006) [Tort Claims Act, Recreational Use Statute, sovereign immunity, gross negligence] 04-0460 THE STATE OF TEXAS AND THE TEXAS PARKS AND WILDLIFE DEPARTMENT v. RICKY SHUMAKE AND SANDRA SHUMAKE, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF KAYLA SHUMAKE, DECEASED; from Blanco County; 3rd district (03 03 00111 CV, 131 SW3d 66, 12 04 03) The Court affirms the court of appeals' judgment. Justice Medina delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Hecht, Justice O'Neill, Justice Green, and Justice Johnson Justice Wainwright delivered a concurring opinion Justice Brister delivered a dissenting opinion (Justice Willett not sitting)
(“In this case we consider the effect of the recreational use statute on a premises liability claim against the state. Tex. Civ. Prac. & Rem. Code §§ 75.001-.004. The Tort Claims Act waives the state’s sovereign immunity for premises defects or injuries caused by “a condition or use of . . . real property.” Tex. Civ. Prac. & Rem. Code § 101.021. The State contends here, however, that the recreational use statute effectively reinstates immunity for premises liability claims arising on state-owned recreational properties. We disagree. While the recreational use statute raises the burden of proof by classifying the recreational user of state-owned property as a trespasser and requiring proof of gross negligence, malicious intent, or bad faith, it does not reinstate sovereign immunity but rather immunizes the state only to the extent of the elevated standard. Although we do not agree in all respects with the court of appeals’ opinion, we agree with its judgment and accordingly affirm. 131 S.W.3d 66.”)
Guest v. Dixon (Tex. June 16, 2006) [Rule 165a, Rule 306a, reinstatement after DWOP, former attorney’s affidavit sufficient] 04-0128 JAMES GUEST AND ANITA GUEST v. AUSTIN L. DIXON, M.D.; from Bailey County; 7th district (07 03 00189 CV, ___ SW3d ___, 01 07 04) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion (Justice Johnson not sitting) (“Rule 165a(3) of the Texas Rules of Civil Procedure provides that a timely motion to reinstate a case that has been dismissed for want of prosecution extends the deadline to perfect appeal.[1] The rule also states: “A motion to reinstate shall set forth the grounds therefor and be verified by the movant or his attorney.” A divided court of appeals held that a motion to reinstate supported only by the affidavit of the movant’s former attorney in the case does not extend the deadline for appeal. 153 S.W.3d 466 (Tex. App.–Amarillo 2004). We disagree. ... To hold that the motion could not be supported by the affidavit of Guest’’s former attorney could deprive the party of the best evidence available. The rule does not require such a result.)
Seagull Energy v. Eland Energy (Tex. June 16, 2006) [oil and gas lease, operating agreement] 04-0662 SEAGULL ENERGY E&P, INC. v. ELAND ENERGY, INC.; from Harris County; 14th district (14 02 00709 CV, 135 SW3d 122, 02 19 04) The Court reverses the court of appeals' judgment and renders judgment. Justice Medina delivered the opinion of the Court (Justice O'Neill and Justice Brister not sitting)
City of Grapevine v. Waddell (Tex., June 16, 2006) [TTCA, installation of traffic signal, no waiver of immunity] 04-0933 THE CITY OF GRAPEVINE, TEXAS v. AMY SIPES AND TANA (TREVINO) WADDELL; from Tarrant County; 2nd district (02 02 00323 CV, 146 SW3d 273, 08 31 04) The Court reverses in part the court of appeals' judgment and renders judgment. Chief Justice Jefferson delivered the opinion of the Court (“Under the Texas Tort Claims Act, a governmental unit retains immunity for claims based on the absence of a traffic signal unless the absence is not corrected by the governmental unit within a reasonable time after notice. Tex. Civ. Prac. & Rem. Code § 101.060(a)(2). The trial court held that this provision immunized the City of Grapevine from liability based on its alleged negligence in failing to install a traffic signal within a reasonable time after initially deciding to do so. The court of appeals disagreed and reversed in part the trial court’s judgment. Because we conclude that “absence,” as used in subsection (a)(2), requires a prior presence, we reverse in part the court of appeals’ judgment and render judgment dismissing the case for lack of subject matter jurisdiction.”)
Cooper Tire v. Mendez (Tex. June 16, 2006) [products liability, auto tire, nail in tire, deadly accident caused by tire failure] 04-1039 COOPER TIRE & RUBBER COMPANY v. OSCAR MENDEZ, JR., ET AL.; from El Paso County; 8th district (08 01 00340 CV, 155 SW3d 382, 10 14 04) The Court reverses the court of appeals' judgment and renders judgment. Justice Willett delivered the opinion of the Court (“In this products liability case, we hold that plaintiffs’ expert testimony was legally insufficient to establish a manufacturing defect, and accordingly reverse and render judgment in favor of petitioner Cooper Tire & Rubber Company.”)
In re Dallas Peterbilt (Tex. June 16, 2006) [Employer entitled to enforce arbitration] 05-0706 IN RE DALLAS PETERBILT, LTD, L.L.P.; from Dallas County; 5th district (05 05 01034 CV, ___ SW3d ___, 08 19 05) supplemented Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion (“In this original proceeding, relator Dallas Peterbilt, Ltd., L.L.P. seeks to compel arbitration of claims filed by its former employee, William Harris. The trial court denied Peterbilt’s motion to stay proceedings and to compel arbitration, and the court of appeals summarily denied mandamus relief. __ S.W.3d __, 2005 Tex. App. LEXIS 6768. Because the parties entered into a binding arbitration agreement that covers Harris’s claims, we conclude that the trial court abused its discretion in denying Peterbilt’s motion to compel arbitration. We conditionally grant mandamus relief. “ . . . “An employer may enforce an arbitration agreement entered into during an at-will employment relationship if the employee received notice of the employer’s arbitration policy and accepted it. In re Dillard Dep’t Stores, Inc., __ S.W. 3d __,__, 2006 Tex. LEXIS 196, at *2 (Tex. 2006) (per curiam) (citing In re Halliburton Co., 80 S.W.3d 566, 568 (Tex. 2002)). In granting mandamus relief in Halliburton, we stressed the importance of notice and emphasized that the employee there received a one-page summary of the agreement to arbitrate. 80 S.W.3d at 568–69; see also Hathaway v. Gen. Mills, Inc., 711 S.W.2d 227, 229 (Tex. 1986) (holding that notice is provided if the employee has knowledge of the employment terms). Harris argues that the Summary is immaterial and that only the underlying agreement itself, which he says he never received, can provide notice. We disagree. When determining whether an employee received notice of a binding arbitration agreement, our cases do not confine that “notice analysis” to the underlying agreement, but to all communications between the employer and employee. See In re Halliburton Co., 80 S. W.3d at 569 (holding that a notice and summary given to the employee was unequivocal notice); Hathaway, 711 S.W. 2d at 229 (holding that contradicting written and oral communications did not constitute conclusive proof of unequivocal notice)”)
Ross v. National Center for the Employment of the Disabled (Tex. June 16, 2006) [unserved defendant has not duty to defend law suit, no due diligence required, proper service, default judgment, bill of review, Rule 306a motion, general appearance] 05-1082 RICHARD M. ROSS v. NATIONAL CENTER FOR THE EMPLOYMENT OF THE DISABLED, AS SUCCESSOR IN INTEREST TO ACCESS HEALTHSOURCE, INC., ASSIGNEE OF O.R. BROOKER, ET AL.; from El Paso County; 8th district (08 04 00375 CV, 176 SW3d 642, 10 20 05) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment, renders judgment in part, and remands in part to the trial court. Per Curiam Opinion (“In one of several suits between these parties, a trial court entered a $10 million default judgment against a party who was never served. When the trial court denied a bill of review to set aside that default, the court of appeals affirmed, pointing to evidence that the unserved party failed to file a motion for a new trial in the original default, and resisted postjudgment enforcement of it. 176 S.W.3d 642, 646-49. But the trial court had no jurisdiction either to enter judgment or to enforce it against a party who had neither been properly served nor appeared. Accordingly, we reverse.” . . . “A party who becomes aware of the proceedings without proper service of process has no duty to participate in them.” Caldwell, 154 S.W.3d at 97 n.1; accord, Wilson v. Dunn, 800 S.W.2d 833, 837 (Tex. 1990) (“[M] ere knowledge of a pending suit does not place any duty on a defendant to act.”); Harrell v. Mexico Cattle Co., 11 S. W. 863, 865 (Tex. 1889) (“A defendant . . . is not bound to take action until he has been duly served with process.”). While diligence is required from properly served parties or those who have appeared, see Gold v. Gold, 145 S.W.3d 212, 214 (Tex. 2004), those not properly served have no duty to act, diligently or otherwise. See Caldwell, 154 S.W.3d at 97 (“An individual who is not served with process cannot be at fault or negligent in allowing a default judgment to be rendered.”). Ross filed his bill of review well within the applicable four year limitations period, see Caldwell v. Barnes, 975 S.W.2d 535, 538 39 (Tex. 1998), and proved that he had never been properly served. We hold the court of appeals erred in requiring Ross to act diligently in a case in which he was never served.”)
June 9, 2006
Gonzalez v. McAllen Med. Ctr. (Tex. June 9, 2006) [sufficiency of the evidence, jury trial] 03-0939 OSCAR GONZALEZ, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF ENRIQUE GONZALEZ, EMMA GONZALEZ, ENRIQUE GONZALEZ, JR., ARMANDO GONZALEZ, RICARDO GONZALEZ, AND HECTOR GONZALEZ v. MCALLEN MEDICAL CENTER, INC. AND JOSE I. IGOA; from Hidalgo County; 13th district (13 00 00296 CV, ___SW3d___, 06 05 03) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion (“The plaintiffs here are entitled to a written opinion stating why the jury’s verdict can or cannot be set aside. This Court has no jurisdiction of such claims, so that opinion must come from the court of appeals. Accordingly, without hearing oral argument, we reverse the court of appeals’ judgment and remand for further proceedings in accordance with this opinion. See Tex. R. App. P. 59.1.”)
City of Marshall v. City of Uncertain (Tex. June 9, 2006) [water dispute] 03-1111 CITY OF MARSHALL AND TEXAS COMMISSION ON ENVIRONMENTAL QUALITY v. CITY OF UNCERTAIN, CADDO LAKE AREA CHAMBER OF COMMERCE AND TOURISM, GREATER CADDO LAKE ASSOCIATION, CADDO LAKE INSTITUTE, JOHN T. ECHOLS AND BARRY L. BENNICK; from Travis County; 3rd district (03 03 00154 CV, 124 SW3d 690, 10 16 03) 2 petitions The Court affirms in part the court of appeals' judgment and remands to the Texas Commission on Environmental Quality. Justice O'Neill delivered the opinion of the Court
Wilhelm v. Flores (Tex. June 9, 2006) [duty of care, liability, independent contractor] 04-0208 CURTIS WILHELM v. DORA ELIA FLORES; from Hidalgo County; 13th district (13 98 00148 CV, 133 SW3d 726, 10 30 03) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment. Per Curiam Opinion (“The issue in this case is whether a seller of hived bees owes a commercial buyer’’s employees or agents any duty to warn them of the dangers associated with bee stings or to protect them from being stung. The court of appeals held that such a duty exists. 133 S.W.3d 726, 734 (Tex. App.––Corpus Christi 2003). We disagree.”)
Had Wilhelm hired Black as an independent contractor to move the beehives, Wilhelm would have owed Flores no duty of care because Wilhelm did not control Flores, Black did. E.g., Dow Chemical Co. v. Bright, 89 S.W.3d 602, 608 (Tex. 2002). Nor would Wilhelm, as occupier of the premises where the beehives were kept, have owed an independent contractor’s employees a duty to warn them about being stung, since that danger was obvious. E.g., Shell Oil Co. v. Khan, 138 S.W.3d 288, 295 (Tex. 2004). It would have been Black’s responsibility, not Wilhelm’s, to warn Flores of the danger of an allergic reaction, if Flores was not already aware of it. Id. But Black was merely a buyer of the bees; he was not Wilhelm’s independent contractor, and Wilhelm owed Black’s employees no greater duty than if he had been. We conclude that Wilhelm owed Flores no duty as alleged by respondents. Accordingly, we grant Wilhelm’s petition for review, and without hearing argument, Tex. R. App. P. 59.1, reverse the judgment of the court of appeals and render judgment that respondents take nothing.
In re Palm Harbor Homes, Inc. (Tex. June 9, 2006) [home purchasers must arbitrate claim against manufacturer even though not a party to contract, but third-party beneficiary] 04-0490 IN RE PALM HARBOR HOMES, INC. AND PALM HARBOR HOMES I, L.P. D/B/A PALM HARBOR VILLAGE; from Brazoria County; 1st district (01 02 00370 CV, 129 SW3d 636, 12 31 03) stay order issued November 19, 2004, lifted The Court conditionally grants the petition for writ of mandamus. Justice Johnson delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, and Justice Willett Justice O'Neill delivered a concurring opinion
Larson v. Downing (Tex. June 9, 2006) [qualification of expert witness in health care liability claim, must practice medicine] 05-0155 MARK D. LARSON, M.D., P.A. AND MARK D. LARSON, M.D. v. MARY MARTHA DOWNING; from Jefferson County; 9th district (09 04 00167 CV, ___ SW3d ___, 12 22 04) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and affirms the trial court's judgment. Per Curiam Opinion (“The trial court in this case did not act without reference to guiding rules. It was required by statute to consider whether Bell was “actively practicing medicine in rendering medical care services relevant to the claim.”[3] At the time the claim arose, it had been at least eleven years since Bell had performed the surgery at issue, and there was no evidence that Bell had ever taught the procedure. The trial court was well within its discretion in determining that Bell was too far removed from surgical practice and even from teaching.”)
Jernigan v. Langley (Tex. June 9, 2006) [health care liability claim, export report requirement] 05-0299 FLOYD E. JERNIGAN, M.D. v. MARIE LANGLEY, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF JOHN LANGLEY AND MARIAH LANGLEY, A MINOR; from McLennan County; 10th district (10 00 00373 CV, ___ SW3d ___, 03 02 05) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and dismisses with prejudice respondent's claims against petitioner. Per Curiam Opinion (“Because Langley’s expert reports omit at least one of the three specifically enumerated requirements of section 13.01(r)(6), they cannot constitute a good faith effort to meet the statutory requirements. Palacios, 46 S.W.3d at 879. Accordingly, the trial court had no discretion but to conclude, as it did here, that Langley’s claims against Dr. Jernigan must be dismissed. Id. at 880. The trial court did not abuse its discretion in dismissing Langley’s claims against Dr. Jernigan.”)
In re Lynd Company (Tex. June 9, 2006) [Rule 306a motion was properly granted by trial court, court of appeals opinion vacated, mandamus granted] 05-0432 IN RE THE LYND COMPANY; from Bexar County; 4th district (04 04 00751 CV, ___ SW3d ___, 02 09 05). Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Opinion of the Court by Chief Justice Jefferson. (Justice Green not sitting) (“Because August 4, 2004 was more than twenty, but less than ninety-one, days after the default judgment was signed, and because Lynd timely filed its Rule 306a sworn motion and accompanying motion for new trial within thirty days of first receiving notice of the judgment, Rule 306a operated to extend the trial court’s plenary power to grant Lynd’s motion for new trial. See Tex. R. Civ. P. 306a(4), (5); see also John, 58 S.W.3d at 741. Thus, pursuant to Rule 306a, August 4, 2004 served as the date from which all post-judgment deadlines and the trial court’s plenary power began to run. See Tex. R. Civ. P. 306a(4) (date party received notice substitutes for the date judgment was signed as starting point from which post-judgment deadlines run). Accordingly, the trial court had jurisdiction on September 7, 2004 to issue its order granting Lynd’s motion for new trial. See Tex. R. Civ. P. 329b. Therefore, the court of appeals abused its discretion in ordering the trial court to vacate that order. Accordingly, without hearing oral argument, we conditionally grant Lynd’s petition for writ of mandamus, direct the court of appeals to vacate its ruling, and order the trial court to vacate its February 28, 2005 order withdrawing the September 7, 2004 order granting new trial. Tex. R. App. P. 52.8(c), (d).”)
Citizens National Bank v. Scott (Tex. June 9, 2006) [suit on note, payment as a defense, sufficiency of evidence, court of appeals required to explain its decision reversing lower court] 05-0454 CITIZENS NATIONAL BANK IN WAXAHACHIE v. TERRY SCOTT; from Ellis County; 10th district (10 03 00322 CV, ___ SW3d ___, 03 03 05) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion (“ When a court of appeals disturbs the judgment of a lower tribunal, merely saying that the court has reviewed all the evidence and reaching a conclusion contrary to that of the trier of fact is not enough. Instead, the court should explain, with specificity, why it has substituted its judgment for that of the trial court. The court of appeals failed to do so here. Accordingly, without hearing oral argument, see Tex. R. App. P. 59.1, we reverse the court of appeals’ judgment and remand the case to that court for more detailed consideration.”)
UTMB v. Blackmon (Tex. June 9, 2006) [nonsuit while interlocutory appeal ILA is pending terminates appeal, DWOJ] 05-0594 THE UNIVERSITY OF TEXAS MEDICAL BRANCH AT GALVESTON v. THE ESTATE OF DARLA BLACKMON, BY ITS BENEFICIARY SHEILA SHULTZ AND SHEILA SHULTZ, INDIVIDUALLY; from Coryell County; 10th district (10 03 00093 CV, 169 SW3d 712, 06 22 05) motion to dismiss, dismissed as moot Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court vacates the court of appeals' judgment and dismisses the appeal for want of jurisdiction. Per Curiam Opinion (“Darla Blackmon died of pneumonia while incarcerated at a Texas Department of Criminal Justice substance abuse facility operated by the University of Texas Medical Branch at Galveston (UTMB). Blackmon’s daughter, Sheila Shultz, brought suit for wrongful death and survival damages, claiming that UTMB negligently failed to diagnose and treat her mother’s illness. Shultz alleged a waiver of sovereign immunity under the Tort Claims Act’s exception for personal injury or death caused by a condition or use of tangible personal property. See Tex. Civ. Prac. & Rem. Code § 101.021(2). UTMB filed a plea to the jurisdiction, which the trial court denied, and then brought an interlocutory appeal. See id. § 51.014(a)(8).”) (“While the petitioner's interlocutory appeal from its plea to the jurisdiction was pending in the court of appeals, the respondent filed a nonsuit. We conclude that the nonsuit deprived the court of appeals of jurisdiction, and we vacate its order and dismiss this interlocutory appeal for want of jurisdiction.”)
June 2, 2006
Cameron Appraisal District v. Rourk (Tex. June 2, 2006) [tax protest, exhaustion requirement, exclusive agency jurisdiction] 04-0359 CAMERON APPRAISAL DISTRICT v. THORA O. ROURK, ET AL.; from Cameron County; 13th district (13 02 00047 CV, 131 SW3d 285, 03 04 04) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment in part, and remands the case to the trial court. Per Curiam Opinion (“The Cameron Appraisal District assessed ad valorem taxes against the owners of 34 travel trailers for the tax years 2000 and 2001. After some but not all filed unsuccessful administrative protests and then timely appeals in the district court, the latter (1) dismissed for lack of jurisdiction the claims by those who had not exhausted administrative remedies, (2) granted summary judgment against the remainder because their trailers were taxable as a matter of law, and (3) refused to certify a class action. The court of appeals reversed, finding error in all three rulings. 131 S.W.3d 285 (Tex. App.–Corpus Christi 2004).[1] Because exhaustion of administrative remedies was mandatory, we reverse. See Tex. Gov’t Code § 22.225(d).”)
Willis v. Urban Retreat of Houston (Tex. June 2, 2006) [no liability of owners in breach of contract claim against closely held corporation] 04-0409 MICHAEL T. WILLIS, FRANCIE WILLIS, URBAN RETREAT OF HOUSTON, INC., AND WILLIS HITE ENTERPRISES, INC. v. DAN DONNELLY; from Harris County; 14th district (14-00-00569-CV, 118 SW3d 10, 06 19 03) 2 petitions The Court reverses in part and affirms in part the court of appeals' judgment, and renders judgment in part and remands, in part, the case to the trial court. Justice Willett delivered the opinion of the Court (Justice O'Neill, Justice Brister, and Justice Medina not sitting) (“This dispute centers on whether shareholders in closely held corporations can be held liable to an individual who agreed to a contractual business arrangement with the corporations. We agree with Petitioners Michael and Francie Willis (the Willises) that they cannot be held liable to Respondent Dan Donnelly under breach of contract and breach of fiduciary duty theories. We address other issues as well.”)
Kiefer v. Touris (Tex. May 26, 2006) [Bill of review, set aside prior determination of paternity, nonpaternity; wife had child with another man while married, subsequent divorce decree adjudicated child as child of the marriage, trial court granted biological father’s bill of review by summary judgment, set aside the parentage adjudication in the divorce decree, but did not enter a new adjudication of child’s parentage] 05-0651 TERRY KIEFER AND KELLY JO WOOD v. IOANNIS JOHN TOURIS AND DENNIS G. BREWER, JR. EX REL. A. K., A MINOR; from Dallas County; 10th district (10 03 00331 CV, ___ SW3d ___, 06 29 05) 2 petitions Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petitions for review and without hearing oral argument, the Court reverses the court of appeals' judgment and dismisses the appeal for want of jurisdiction. Per Curiam Opinion (“In this case we consider whether a judgment in a bill of review proceeding that sets aside a parentage adjudication, but does not make a new parentage adjudication, is an appealable judgment. We conclude that it is not. “)
Higgins v. Randall County Sheriff’s Office (Tex. May 26, 2006)(no link to opinion) [dismissal of pro se inmate’s appeal for nonpayment of fees reversed where inmate filed affidavit of indigence before deadline, defects not jurisdictional] 05-0095 LAWRENCE HIGGINS v. RANDALL COUNTY SHERIFF'S OFFICE; from Randall County; 7th district (07 05 00004 CV, ___ SW3d ___, 01 19 05) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion (Justice Johnson not sitting) (“ The court of appeals dismissed the appeal because the affidavit was untimely and unaccompanied by a motion to extend time. See Tex. R. App. P. 20.1(c). But the affidavit is no longer a jurisdictional requirement. See Tex. R. App. P. 25.1(b); In re J.W., 52 S.W.3d 730, 733 (Tex. 2001). As with any other formal defect or irregularity in appellate procedure, the court of appeals could dismiss the appeal for noncompliance only after allowing Higgins a reasonable time to correct this defect. See Tex. R. App. P. 44.3; In re J.W., 52 S.W.3d at 733. Because an affidavit of indigence discharged the filing-fee requirement unless a contest to it was sustained, see Tex. R. App. P. 20.1, Higgins corrected the defect within the allotted time. The court of appeals held alternatively that even if the affidavit were timely, the appeal should be dismissed because it was conclusory and failed to contain all the information required. But again, dismissal cannot be sustained on this ground without giving the affiant an opportunity to amend. See In re J.W., 52 S.W.3d at 733. Nothing in the affidavit shows affirmatively that Higgins could pay appellate costs, and “[c]ommon sense tells us that one in [his] circumstances had no means of obtaining an arm’s length bona fide loan.” Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980). Accordingly, without hearing oral argument, see Tex. R. App. P. 59.1, we reverse the court of appeals’ judgment and remand for further proceedings in accordance with this opinion.”)
Childers v. Advanced Foundation Repair (Tex. May 26, 2006) [Order appealed from was final, CoA erred in dismissing for want of interlocutory jurisdiction) 05-0831 STEVE CHILDERS v. ADVANCED FOUNDATION REPAIR, L.P.; from Kleberg County; 13th district (13 04 00193 CV, ___ SW3d ___, 08 18 05) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court. Per Curiam Opinion The court of appeals erroneously determined Childers’s appeal to be interlocutory. (“In Lehmann v. Har-Con Corp., we held that a “judgment that finally disposes of all remaining parties and claims, based on the record in the case, is final . . . .” 39 S.W.3d 191, 200 (Tex. 2001). Such is the case here. AFR requested that the trial court dismiss the case “in its entirety,” and the trial court did exactly that. The trial court’s Final Judgment is unequivocal: “This judgment is final, disposes of all parties and all claims in this case, is appealable, and disposes of this case in the entirety.” Because the trial court’s order was all-encompassing and, as the record confirms, disposed finally and completely of all claims and parties, the court of appeals erred in deeming the appeal interlocutory and dismissing it for lack of jurisdiction. We note that the federal approach is identical. See Green Tree Fin. Corp.-Alabama v. Randolph, 531 U.S. 79, 86–87 (2000) (holding that an appeal may be taken of an order that compels arbitration and dismisses all claims before the court). Without hearing oral argument, we grant Childers’s petition for review, reverse the court of appeals’ judgment dismissing the case for lack of jurisdiction, and remand to the court of appeals to consider the merits of Childers’s appeal. See Tex. R. App. P. 59.1, 60.2(d).”)
The Kroger Co. v. Elwood (Tex. May 12, 2006) [workplace injury, workers comp nonsubscriber, negligence, employer liability, Kroger had no duty to grocery sacking clerk whose hand was injured by customer's car door] 04-1133 THE KROGER CO. v. BILLY ELWOOD; from Johnson County; 10th district (10 02 00349 CV, ___ SW3d ___, 11 10 04). Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment. Per Curiam Opinion
In re A.M and B.M. (Tex. May 5, 2006) [custody switch and child support off-set and reimbursement claims, either-or or both, actual support, presumption or what proof required?] Also see ---> Other Texas family law decisions 03-0509 IN THE INTEREST OF A.M. AND B.M., CHILDREN; from Harris County; 13th district (13 00 00649 CV, 101 SW3d 480, 07 18 02) 2 petitions The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Medina delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Brister, Justice Green, and Justice Willett In re A.M and B.M. (Tex May 5, 2006) Separate Opinion by Justice Johnson
Evanston Inc. Co. v. Atofina (Tex. May 4, 2006) [insurance coverage dispute, industrial accident liability] 03-0647 EVANSTON INSURANCE COMPANY v. ATOFINA PETROCHEMICALS, INC.; from Jefferson County; 9th district (09 02 00072 CV, 104 S.W.3d 247, 04 10 03) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Green delivered the opinion of the Court
Kroger v. Suberu (Tex. May 5, 2006) 03-0913 KROGER TEXAS LIMITED PARTNERSHIP AND ROBERT MOODY v. THERESA SUBERU; from Dallas County; 5th district (05 02 00818 CV, 113 S.W3.d 588, 08 18 03) The Court reverses the court of appeals' judgment and renders judgment. Chief Justice Jefferson delivered the opinion of the Court, joined by Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Brister, Justice Green, and Justice Willett (“The evidence is legally insufficient to support a finding that Kroger lacked probable cause to initiate criminal proceedings against Suberu for shoplifting, and legally insufficient to support a finding that Kroger’s conduct was extreme and outrageous. Accordingly, we reverse the court of appeals’ judgment and render judgment that Suberu take nothing. See Tex. R. App. P. 60.2(c).”) Justice Johnson delivered a concurring and dissenting opinion, joined by Justice Medina, and by Justice Wainwright as to Part III
Terk v. Oppenheimer (Tex. May 4, 2006) [attorney malpractice, who can sue on behalf of estate?] 04-0681 KRISTIN TERK BELT AND KIMBERLY TERK MURPHY, JOINT INDEPENDENT EXECUTRIXES OF THE ESTATE OF DAVID B. TERK, DECEASED v. OPPENHEIMER, BLEND, HARRISON & TATE, INC., GLEN A. YALE, J. DAVID OPPENHEIMER AND KENNETH M. GINDY; from Bexar County; 4th district (04 03 00832 CV, 141 S.W.3d 706, 06 16 04) The Court reverses the court of appeals' judgment and remands the case to the trial court. Chief Justice Jefferson delivered the opinion of the Court (Justice Green not sitting) ("Iin accordance with the long-standing, common-law principle that actions for damage to property survive the death of the injured party, we hold that legal malpractice claims alleging pure economic loss survive in favor of a deceased client’s estate, because such claims are necessarily limited to recovery for property damage...The Terks—in their capacity as personal representatives of their father’s estate—may maintain an estate-planning malpractice claim against the Attorneys. We therefore reverse the court of appeals’ judgment and remand to the trial court for further proceedings consistent with this opinion. Tex. R. App. P. 60.2(d).
Shupe v. Lingafelter (Tex. May 4, 2006) [jury instruction error, negligent entrustment, no harmful error] 05-0083 BRENT J. SHUPE AND JCJ TRUCKING, AND MIDWEST COAST TRANSPORT D/B/A MCT v. JOHN LINGAFELTER, KATHLEEN LINGAFELTER, MARK GIRGUS, AND CARRIE GIRGUS, INDIVIDUALLY AND AS NEXT FRIENDS FOR KALEY GIRGUS, A MINOR; MATTHEW TEAGUE, BRENDA TEAGUE, AND DANIEL LEON JACKSON AND LISA BOYD; from Somervell County; 10th district (10 03 00113 CV, ___ SW3d ___, 11 17 04) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
American Flood Research v. Jones (Tex. May 4, 2006) [discovery sanctions, attorney only, or client and counsel, failure to obey discovery order] 05-0271 AMERICAN FLOOD RESEARCH, INC. v. HARRY JONES; from Collin County; 5th district (05 03 01023 CV, ___ S.W.3d ___, 01 20 05) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
St. Luke's v. Marks (Tex. May 4, 2006) 05-0693 ST. LUKE'S EPISCOPAL HOSPITAL v. IRVING W. MARKS; from Harris County; 1st district (01 04 00228 CV, 177 SW3d 255, 03 03 05) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court vacates the court of appeals' judgment and remands the case to that court. Per Curiam Opinion
In re Main Place Custom Homes (Tex. May 4, 2006) [enforcement of judgment, debt collection, alter ego, post-judgment discovery, net worth, supersedeas] 06-0107 IN RE RON SMITH; from Denton County; 2nd district (02 04 00275 CV, ___ SW3d ___, 01 27 06) stay order issued March 9, 2006, lifted - consolidated with - 06-0108 IN RE MAIN PLACE CUSTOM HOMES, INC.; from Denton County; 2nd district (02 04 00275 CV, ___ S.W.3d ___, 01 09 06) stay order issued March 9, 2006, lifted Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants in part and denies in part the petitions for writ of mandamus. (“We hold that the trial court abused its discretion by issuing an order that did not state with particularity the factual basis for its determination of Smith’s net worth and that did not state Main Place’s net worth as required by Rule 24. Accordingly, without hearing oral argument, we conditionally grant the writ and direct the trial court to enter additional findings as to Smith’s net worth and the determination that R. A. Smith & Company, Inc. is Smith’s alter ego.“)
April 21, 2006
03-0204 Tommy Thomas v. Long (Tex. April 21, 2006) The Court reverses the court of appeals' judgment and renders judgment. Justice Wainwright delivered t SHERIFF OF HARRIS COUNTY v. JEANNE LONG; from Harris County; 14th district (14 02 00251 CV he opinion of the Court (“This is an interlocutory appeal of a trial court’s denial of a jurisdictional plea. Although the plea was made as part of a motion for summary judgment, the court of appeals had jurisdiction to consider the interlocutory appeal under section 51.014(a)(8) of the Texas Civil Practice and Remedies Code. We conclude that the court erred in determining that it was without jurisdiction to consider the appeal. However, we dismiss the claims relating to the respondent’s reinstatement to her employment because her failure to exhaust administrative remedies deprived the trial court of subject matter jurisdiction over those claims.”)(“The trial court was without subject matter jurisdiction to issue a declaratory judgment in this case and erred in denying Thomas’s jurisdictional challenge.”) Opinion below: Thomas v. Long, 97 S.W.3d 300 (Tex. App.–Houston [14th Dist.] 2003, revrs'd) Trial Court: 281st District Court, Harris County; Trial Court Judge: Jane Nenninger Bland, now a Justice on the First Court of Appeals and occasional Supreme Court Justice by assignment; Trial Court Case No.: 2001-58372
Ed Rachal Foundation v. D’Unger (Tex. April 21, 2006) [no common law cause of action for whistleblowing, at will employment, wrongful termination award reversed, plaintiff takes nothing, court defers to legislature to create remedy for whistle blowing] 03 1101 THE ED RACHAL FOUNDATION AND PAUL ALTHEIDE v. CLAUDE D'UNGER; from Nueces County; 13th district (13 00 00335 CV, 117 S.W.3d 348, 08 29 03) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses in part the court of appeals' judgment and renders judgment. Per Curiam Opinion
Brittingham-Sada de Ayala v. Mackie (Tex. April 21, 2006) [interlocutory appeals statute, probate proceeding, permissive interlocutory appeal] 04 0160 MARIA CRISTINA BRITTINGHAM-SADA DE AYALA v. KEVIN MICHAEL MACKIE, ADMINISTRATOR OF THE ANCILLARY ESTATE OF JUAN ROBERTO BRITTINGHAM-MCLEAN, DECEASED; from Webb County; 4th district (04 01 00204 CV, 131 S.W.3d 3, 07 02 03) The Court reverses the court of appeals' judgment and dismisses the appeal. Chief Justice Jefferson delivered the opinion of the Court (Justice O'Neill and Justice Green not sitting)
Allstate v. Forth (Tex. April 21, 2006) [suit against insurer, medical insurance coverage for auto accident injuries, no standing because no damages] 05 0057 ALLSTATE INDEMNITY COMPANY v. PAT FORTH, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED; from Dallas County; 6th district (06 03 00135 CV, 151 S.W.3d 732, 12 08 04) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment. Per Curiam Opinion
06 0275 IN RE MARION BARNETT; 5th district (05 06 00430 CV, ___ S.W.3d ___, 03 31 06) Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion
04-1132In Re Dillard Department Stores, Inc. (Tex. March 2, 2006) From El Paso County; 8th district (08 -04 -00262 -CV, ___ S.W.3d ___, 11-24-04). Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion
In this original proceeding, relator Dillard Department Stores, Inc. seeks to compel arbitration of a retaliatory discharge claim filed by its former employee. The trial court denied Dillard’s motion to compel, and the court of appeals rejected Dillard’s petition for writ of mandamus. 153 S.W.3d 145. Because the trial court clearly abused its discretion in denying the motion to compel arbitration, we conditionally grant Dillard’s petition for writ of mandamus.
Delia Garcia worked as a sales associate at Dillard’s Sunland Park store in El Paso. In August 2000, Dillard adopted an arbitration policy covering most employment disputes, including retaliatory discharge. In 2002, Garcia was fired six months after requesting workers’ compensation benefits for work-related injuries. Garcia filed the underlying suit for retaliatory discharge, and Dillard moved to compel arbitration. In response, Garcia alleged that she never agreed to the arbitration policy, and even if she had, the agreement would be unenforceable because Dillard retained the right to modify the policy at any time, rendering its promise to arbitrate illusory.
The trial court clearly abused its discretion in denying Dillard’’s motion to compel arbitration. Accordingly, without hearing oral argument, we conditionally grant the writ of mandamus and order the trial court to vacate its order denying Dillard’’s motion to compel arbitration, and to enter a new order compelling arbitration of Garcia’’s claims. Tex. R. App. P. 52.8(c)
Employment-at-will Doctrine Not Altered By For-cause Provision in Employee Manual
03-0111 Matagorda County Hospital District v. Christine Burwell (Tex. Feb. 24, 2006) The dispositive issue in this case is whether a statement in a personnel policy manual that “[e]mployees may be dismissed for cause” constitutes an agreement that dismissal may be only for cause, thereby modifying the at-will employment relationship. The Supreme Court holds it does not and therefore reverse the judgment of the Thirteenth Court of Appeals, 94 S.W.3d 75 (Tex.App.—Corpus Christi 2002)
Employment at will doctrine: For well over a century, the general rule in this State, as in most American jurisdictions, has been that absent a specific agreement to the contrary, employment may be terminated by the employer or the employee at will, for good cause, bad cause, or no cause at all. Montgomery County Hospital District v. Brown 965 S.W.2d 501, 502 (Tex. 1998).
Supreme Court Overturns Rulings Favorable to Houston Firefighter in Two Prior Appeals
City of Houston v. Jackson (Tex. April 7, 2006) [fire fighter employment grievance, penalty, plea to the jurisdiction, two appeals in the court of appeals below, law of case doctrine does not preclude Texas Supreme Court from reviewing issue in first, interlocutory appeal] 04-0465 THE CITY OF HOUSTON v. ROBERT JACKSON; from Harris County; 1st district (01 02 00879 CV, 135 S.W.3d 891, 04 01 04) unopposed motion for leave to file post submission brief granted The Court reverses the court of appeals' judgment and dismisses respondent's statutory penalty claim for want of jurisdiction. Justice O'Neill delivered the opinion of the Court (“Section 143.134(h) of the Texas Local Government Code imposes a $1,000 penalty payable to an aggrieved fire fighter for each day a department head intentionally fails to implement a decision of the Fire Fighters’ and Police Officers’ Civil Service Commission (the “Commission”) under Section 143.131 or a decision of a hearing examiner under Section 143.129 that has become final. Tex. Loc. Gov’t Code Section 143.134(h). The court of appeals held that the penalty provision also applies to a grievance examiner’s unappealed recommendation under Section 143.130 of the Code. 135 S.W.3d 891. We hold that, by the provision’s plain language, it does not. Accordingly, we reverse the court of appeals’ judgment and dismiss Jackson’s statutory penalty claim for want of jurisdiction.”)
RECENT TEXAS SUPREME COURT OPINIONS ON VARIOUS TOPICS
City of Dallas v. Vanesko (Tex. April 7, 2006) 04-0263 CITY OF DALLAS, TEXAS, BOARD OF ADJUSTMENT OF THE CITY OF DALLAS, TEXAS, AND RAJ SHARMA, IN HIS CAPACITY AS THE BUILDING OFFICIAL OF THE CITY OF DALLAS v. DOUG VANESKO AND GRACE VANESKO; from Dallas County; 5th district (05 03 00022 CV, 127 SW3d 220, 11 19 03) The Court reverses the court of appeals' judgment and renders judgment. Justice Green delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Brister, Justice Medina, Justice Johnson, and Justice Willett (“In this zoning case, we determine whether a city can enforce a zoning ordinance against a property owner whose substantially completed new home has been built in violation of the ordinance, even though the city had given preliminary approval to the owner’s building plans. We conclude that it can. ... The mere issuance of a building permit does not render a city’s zoning ordinances unenforceable, nor does the fact that a permit was issued in error entitle the property owner to a variance in every case. Were this so, the City would never be able to correct errors in the permitting process. ... Because we conclude both that the Vaneskos’ hardship was personal in nature and that the Board was not required to consider the erroneous issuance of a building permit, we cannot say on the facts before us that a clear abuse of discretion occurred. Accordingly, the judgment of the court of appeals is reversed, and judgment is rendered in favor of the City of Dallas.”)
Justice O'Neill delivered a dissenting opinion (“While I agree with the Court that “the mere issuance of a building permit does not render a city’s zoning ordinances unenforceable, nor does the fact that a permit was issued in error entitle the property owner to a variance in every case,” this doesn’t answer the question of what evidence the board of adjustment could consider in deciding the Vaneskos’ variance request. All needs for a variance that might arise after an erroneous permit has been issued are not by definition self-created, personal hardships for which variances may not be granted. If that were so, homeowners would be strictly liable for city errors regardless of the circumstances, marginalizing the need for boards of adjustment at all and rendering other parts of the city’s ordinance meaningless. Because I believe the board of adjustment may have reached its decision to deny the Vaneskos’ variance request by “fail[ing] . . . to analyze or apply the law correctly,” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992), I would afford the board and the Vaneskos another chance. Accordingly, I would affirm the lower courts’ remand to the board of adjustment for reconsideration, although on different grounds. Because the Court does not, I respectfully dissent.”)
Minnesota Life Ins. Co. v. Vasquez (Tex. April 7, 2006) [bad faith insurance case, delay, prompt payment, extra-contractual damages reversed] 04-0477 MINNESOTA LIFE INSURANCE COMPANY v. ELIA L. VASQUEZ; from Nueces County; 13th district (13 02 00554 CV, 133 SW3d 320, 04 01 04) The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Brister delivered the opinion of the Court (“Under the Insurance Code, an insurer that fails to pay claims promptly must pay for actual damages it causes as a result. But payments beyond that cannot be based on negligence or hindsight; there must be evidence that the insurer was actually aware that it was handling the claim in a way that was false, deceptive, or unfair. As there is no such evidence here, the lower courts erred in awarding extra- contractual damages.”)
In re Mays-Hooper (Tex. April 7, 2006) [grandparent access to children, mandamus proceeding] 04-1040 IN RE KAREN MAYS-HOOPER; from Tarrant County; 2nd district (02 04 00321 CV, ___ SW3d ___, 10 15 04) as reinstated stay order issued November 19, 2004, lifted Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Per Curiam Opinion (Justice Willett not sitting) (“Without hearing oral argument, Tex. R. App. P. 52.8(c), we conditionally grant mandamus relief and direct the trial court to vacate its order of September 21, 2004 granting grandparent possession.“)
03-0987 General Motors Corp. v. Hudiburg Chevrolet, Inc. (Tex. March 17, 2006) By Justice Hecht [Product liability, truck, vehicle, duty to indemnify, manufacturer, defect) GENERAL MOTORS CORPORATION AND RAWSON-KOENIG, INC. v. HUDIBURG CHEVROLET, INC., AND HUDIBURG CHEVROLET HOLDING, INC.; from Dallas County; 5th district (05-02-01166-CV, 114 S.W.3d 680, 08-05- 03) Two petitions The Court reverses in part, modifies, and affirms as modified the court of appeals' judgment, and remands the case to the trial court. Justice Hecht delivered the opinion of the Court
03-0914 Hyundai v. Vasquez (Tex. March 10, 2006)(by Justice Bland, sitting by assignment) [Voir dire in products liability case;small child killed by airbag in low speed collision] HYUNDAI MOTOR COMPANY AND HYUNDAI MOTOR AMERICA, INC. v. VICTOR MANUEL VASQUEZ, AND BRENDA SUAREZ VASQUEZ, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF ALYSSA AMBER VASQUEZ; from Bexar County; 4th district (04 -01 -00554 - CV, 119 SW3d 848, 08 -29 -03). Justice Bland delivered the opinion of the Court, joined by Justice Hecht, Justice O'Neill, Justice Brister, Justice Willett, and Justice Cayce The Court reverses the court of appeals' judgment and remands the case to that court. Justice Wainwright delivered a dissenting opinion, joined by Justice Johnson Justice Medina delivered a dissenting opinion, joined by Justice Wainwright and Justice Johnson (Chief Justice Jefferson and Justice Green not sitting)The Honorable John Cayce, Chief Justice, Second District Court of Appeals, and the Honorable Jane Bland, Justice, First District Court of Appeals, sitting by commission of the Honorable Rick Perry, Governor of Texas, pursuant to Tex. Gov't Code § 22.005. Chief Justice Jefferson and Justice Green are recused.
04-0340 City of White Settlement, Texas v. Superwash, Inc. (Texas, March 2, 2006) from Tarrant County; 2nd district (02 -03 -00089 -CV, 131 S.W.3d. 249, 02 -26 -04) The Court reverses the court of appeals' judgment in part and renders judgment. Chief Justice Jefferson delivered the opinion of the Court
04-0147 Marshal v. Housing Authority of the City of San Antonio (Tex. March 2, 2006) from Bexar County; 4th district (04 -02 -00821 -CV, ___ S.W.3d. ___, 11 -26 -03) The Court vacates the court of appeals’’ judgment and opinion, vacates the trial court’’s judgment, and dismisses the case as moot.
04-1046 Wal-Mart Stores Inc. v. Kathy Spates (Tex. Feb. 24, 2006) from Brazoria County; 13th district (13 03 00232 CV, 144 S.W.3d 657, 10 07 04). Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and reinstates the trial court's judgment. (Premises defect claim. Trial court’s summery judgment in favor of Wal-Mart reinstated. No evidence Wal-Mart should have discovered hazardous condition that led to injury.)
05-0295 Fidelity and Guaranty Ins. Co. v. Drewery Construction Co. Inc. (Tex. Feb. 24, 2006) from Nacogdoches County; 12th district (12 04 00084 CV, ___ S.W.3d ___, 02 28 05). In this suit on a surety bond, Drewery Construction Company, Inc., a subcontractor, obtained a default judgment for $158,131.05 plus interest and attorney’’s fees against Fidelity and Guaranty Insurance Company, surety for the general contractor, JenCra, Inc. Fidelity filed a motion for new trial explaining that the service papers had been lost. The trial court denied the motion, and the court of appeals affirmed. ___ S.W.3d ___. Fidelity asserts three grounds for reversal, the last of which is well- taken. Accordingly, we reverse.
04-0685 The Ray Malooly Trust v. Chris Juhl and Maria Juhl (Tex. Feb. 24, 2006 )from El Paso County; 8th district (08 02 00512 CV, ___ S.W.3d ___, 06 17 04) [trust is not a legal entity, but denial of capacity challenge was waived in trial court; trustee should be named as defendant; power to sue and be sued].
04-0245 In re Lumbermens Mutual Casualty Company (Tex. Feb. 3, 2006) [Appeal by nonparty with interest in the matter, equitable virtual-representation doctrine, intervention in appeal, mandamus conditionally granted.] Opinion by Justice Harriet O'Neill
04-0570 GTE Mobilenet of Houston, Inc. v. The Chair King (Tex. Feb. 3, 2006) "We conclude that, because Texas did not otherwise permit a cause of action for the receipt of unsolicited fax advertisements until September 1, 1999, and the faxes at issue in this case were sent before that date, plaintiffs have no actionable claim. Because this conclusion is dispositive, we do not reach the parties’ other arguments involving the limitations period applicable to TCPA claims and the application of Texas agency law under the facts presented here. Accordingly, we reverse the judgment of the court of appeals and render judgment in favor of GTE Mobilnet." Opinion by Justice Harriet O’Neill