Question Presented: Can an insured recover attorney’s fees under Chapter 38 of the Civil Practice and Remedies Code from her underinsured motorist (UIM) insurer?
State Farm Mut. Auto Ins. Co. v. Nickerson, No. 04-0427 (Tex. Dec. 22, 2006)(Jefferson) [insurance law, UIM coverage, underinsured motorist policy, damages, attorney's fees] 04-0427 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. TERESA NICKERSON; from Lamar County; 6th district (06-03-00036-CV, 130 S.W.3d 487, 03/18/04) The Court reverses and renders in part the court of appeals' judgment and affirms in part the court of appeals' judgment. Chief Justice Jefferson delivered the opinion of the Court (Justice O'Neill not sitting)
October 20, 2006
Supreme Court Decides Appeal Involving Claims of Anticompetitive Business Conduct
Five carbonated soft drink bottlers with franchises to distribute Royal Crown Cola in various territories within the Ark- La-Tex region (a four state region including parts of Arkansas, Louisiana, and Texas where the three borders meet, and also nearby southeast Oklahoma) sued The Coca-Cola Company and several distributers of both Coca-Cola and Dr Pepper in the same area for using calendar marketing agreements (“CMAs”) with retailers to unreasonably restrain trade, monopolize the market, and attempt and conspire to monopolize the market in violation of the Texas Free Enterprise and Antitrust Act of 1983 (“TFEAA”)[1] and the antitrust laws of the other three states. The district court rendered judgment on the jury’s verdict for the plaintiffs, awarding damages incurred throughout the region and permanently enjoining, in specified counties in each of the four states, certain conduct that it determined to be anticompetitive. The court of appeals affirmed.[2]
We address two issues. One is whether Texas courts can adjudicate and remedy an anti-competitive injury occurring in another state, either under the TFEAA or the law of that state. We hold that the TFEAA will not support extraterritorial relief in the absence of a showing that such relief promotes competition in Texas or benefits Texas consumers. We also hold that Texas courts, as a matter of interstate comity, will not decide how another state’s antitrust laws and policies apply to injuries confined to that state. The other issue is whether the plaintiffs have shown substantial harm, real or threatened, to competition in the relevant market as a result of the defendants’ conduct. We conclude that there is no evidence of such harm and that the lack of evidence is fatal to all of the plaintiffs’ claims. Accordingly, we reverse the judgment of the court of appeals, dismiss the plaintiffs’ claims of injury occurring in other states, and render judgment that the plaintiffs take nothing on their claims of injury occurring in Texas.
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
Texas Supreme Court Sets New Precedent on Noncompetes
Sheshunoff Mgmt Serv's v. Johnson, Strunk & Assoc., No. 03-1050 (Tex. Oct. 20, 2006)(Willet)(noncompete agreement) ALEX SHESHUNOFF MANAGEMENT SERVICES, L.P. v. KENNETH JOHNSON AND STRUNK & ASSOCIATES, L.P.; from Travis County; 3rd district (03-03-00060-CV, 124 S.W.3d 678, 10/02/2003) 2 petitions The Court reverses the court of appeals' judgment in part, affirms the court of appeals' judgment in part, and remands the cause to the trial court. Justice Willett delivered the opinion of the Court, joined by Justice Hecht, Justice Brister, Justice Green, and Justice Johnson
In this case we revisit the Court’s 1994 decision in Light v. Centel Cellular Co.[1] and again consider the enforceability of covenants not to compete in the context of at-will employment. The question today is whether an at- will employee who signs a non-compete covenant is bound by that agreement if, at the time the agreement is made, the employer has no corresponding enforceable obligation. Under Light, the answer to that question was always “no.” Today we modify our holding in Light and hold that an at-will employee’s non-compete covenant becomes enforceable when the employer performs the promises it made in exchange for the covenant. In so holding, we disagree with language in Light stating that the Covenants Not to Compete Act[2] requires the agreement containing the covenant to be enforceable the instant the agreement is made.
Chief Justice Jefferson delivered a concurring opinion, joined by Justice O'Neill and Justice Medina Justice Wainwright delivered a concurring opinion
The Court’s holding permits an employer to enforce a non-compete covenant months or even years after the employee signed it, as long as the employer eventually fulfills its side of the bargain. That sort of delay is inconsistent with clear statutory language that the covenant must be enforceable “at the time the agreement is made.” While I agree with the Court that “at the time” does not require an instantaneous exchange of consideration, neither does the statute permit the employer’s promise to hang in the air, indefinitely, until it “becomes enforceable” by performance. Rather, consistent with Light and with the statute, I would hold that the employer’s exchange of consideration must occur within a reasonable time after the agreement is made. Because that condition was satisfied on this record, I concur in the judgment.
Today, the Court modifies its interpretation in Light v. Centel Cellular Company of the Covenants Not to Compete Act. See 883 S.W.2d 642 (Tex. 1994); Tex. Bus. & Com. Code §§ 15.50–.52. The at-will employee in this case, Kenneth Johnson, asserted that a noncompete agreement was unenforceable under Light’s construction of subsection 15.50(a) of the Act because no consideration was exchanged at the time the parties entered into the agreement. Contrary to Light, the Court holds that Johnson became bound by his promise not to compete when his employer later performed its corresponding promise to provide special training in its business methods and confidential information. This is similar to a unilateral contract under the common law and seems to address the Legislature’s purpose. I join most of the Court’s opinion.
Both the confidentiality agreement and the noncompete are part of Johnson’s employment agreement. I would hold that the covenant not to compete is enforceable on the ground that it is ancillary to the otherwise enforceable confidentiality agreement.
Opinions Released December 29, 2006
Bed, Bath and Beyond v. Urista No. 04-0332 (Tex. Dec. 29, 2006)(Opinion by Justice Green) [personal injury law, PI, workplace injury, jury instruction, charge error, harmless error] BED, BATH & BEYOND, INC. v. RAFAEL URISTA; from Harris County; 1st district (01 02 00150 CV, 132 S.W.3d 517, 02/19/04) The Court reverses the court of appeals' judgment and remands the case to that court. Justice Green delivered the opinion of the Court, joined by Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Brister, Justice Johnson, and Justice Willett
In this case we decide whether an unavoidable accident instruction given to the jury caused reversible error and requires a new trial. We conclude that because the record does not support a finding that the trial court’s submission of the instruction probably caused the rendition of an improper judgment, Tex. R. App. P. 61.1(a), any error in including the instruction in the jury charge was harmless. Accordingly, we reverse the court of appeals’ judgment and remand the case to that court for consideration of the remaining issues. Justice Brister delivered a concurring opinion, joined by Justice Hecht and Justice Willett Justice Medina delivered a dissenting opinion, joined by Chief Justice Jefferson
Hallco Texas v. McMullen County, No. 02-1176 (Tex. Dec. 29, 2006)(O'Neill) [constitutional law, takings claim, res judicata, collateral estoppel] 02 1176 HALLCO TEXAS, INC. v. MCMULLEN COUNTY; from McMullen County; 4th district (04 02 00164 CV, 94 SW3d 735, 11 20 02) The Court affirms the court of appeals' judgment. Justice O'Neill delivered the opinion of the Court as to Parts I, II, III.B, and V, joined by Chief Justice Jefferson, Justice Wainwright, Justice Brister, and Justice Johnson, and an opinion as to Part III.A and IV, joined by Chief Justice Jefferson, Justice Brister, and Justice Johnson
Justice Hecht delivered a dissenting opinion, joined by Justice Medina and Justice Willett Hallco is entitled to a decision on the merits of its claims that the County’s ordinance effected a compensable taking of its property. Because the Court disagrees, I respectfully dissent. (Justice Green not sitting)
Ben Bolt-Palito Blanco Consolidated ISD v. Texas Political Subdivision Self-Insurance Fund, No. 05-0340 (Tex. Dec. 29, 2006)(O’Neill) [sovereign immunity, new statutory waiver applies] BEN BOLT-PALITO BLANCO CONSOLIDATED INDEPENDENT SCHOOL DISTRICT v. TEXAS POLITICAL SUBDIVISIONS PROPERTY/CASUALTY JOINT SELF-INSURANCE FUND; from Jim Wells County; 4th district (04 04 00658 CV, 163 SW3d 172, 03 09 05)
The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice O'Neill delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Wainwright, Justice Brister, Justice Medina, and Justice Johnson Because Section 271.152 of the Local Government Code waives the Fund’’s immunity from Ben Bolt’’s claim arising out of the insurance agreement between the parties, we reverse the court of appeals’’ judgment and remand to the trial court for further proceedings.
Meyer v. WMCI-GP, No. 04-0252 (Tex. Dec. 22, 2006)(Hecht) [arbitration law, compel arbitration, nonparty, right of first refusal, assignment, equitable estoppel] 04-0252 ALTON J. MEYER, MEYER ACQUISITION CORP., AND FORD MOTOR COMPANY v. WMCO-GP, LLC AND BULLOCK MOTOR COMPANY; from Angelina County; 9th district (09 03 00255 CV, 126 SW3d 313, 01 15 04) 2 petitions The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Hecht delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, Justice Johnson, and Justice Willett Justice O'Neill delivered a dissenting opinion
State Farm Mut. Auto Ins. Co. v. Nickerson, No. 04-0427 (Tex. Dec. 22, 2006)(Jefferson) STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. TERESA NICKERSON; from Lamar County; 6th district (06 03 00036 CV, 130 SW3d 487, 03 18 04) The Court reverses and renders in part the court of appeals' judgment and affirms in part the court of appeals' judgment. Chief Justice Jefferson delivered the opinion of the Court (Justice O'Neill not sitting) The issue in this case is whether an insured can recover attorney’s fees under Chapter 38 of the Civil Practice and Remedies Code from her underinsured motorist (UIM) insurer.
State Farm Mutual Auto Ins. Co. v. Norris., No 04-0514 (Tex. Dec. 22, 2006)(Jefferson) [Personal injury law, auto, underinsured motorist insurance, UIM coverage, policy limits, prejudgment interest, calculation, settlement credit, attorney fees] 04-0514 STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY v. JIMMIE R. NORRIS; from Limestone County; 10th district (10 01 00370 CV, ___ SW3d ___, 04 14 04) The Court reverses the court of appeals' judgment and renders judgment in part and remands in part. Chief Justice Jefferson delivered the opinion of the Court (Justice O'Neill not sitting) The issue in this case is whether an insured can recover attorney’s fees under Chapter 38 of the Civil Practice and Remedies Code from her underinsured motorist (UIM) insurer.
Brainard v. Trinity Universal Ins. Co., No. 04-0537 (Tex. Dec. 22, 2006)(Jefferson) [Personal Injury Law, PI-Auto, underinsured motorist coverage UIM insurance, negligence, recovery of prejudgment interest, calculation of prejudgment interest, attorney's fees, presentment of claim] 04-0537 LILITH BRAINARD, ET AL. v. TRINITY UNIVERSAL INSURANCE CO.; from Gray County; 7th district (07 03 00170 CV, 153 SW3d 508, 03 01 04) The Court reverses in part and affirms in part the court of appeals' judgment and remands the case to the trial court. Chief Justice Jefferson delivered the opinion of the Court (Justice O'Neill and Justice Johnson not sitting)
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, ___ SW3d ___, 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)
In Re Ford Motor Co., No. 05-0696 (Tex. Dec. 22, 2006)(per curiam) [discovery dispute, confidentiality, protective order, mandamus relief] 05-0696 IN RE FORD MOTOR COMPANY; from Nueces County; 13th district (13 05 00521 CV, ___ SW3d ___, 08 24 05) as supplemented stay order issued August 30, 2005, lifted stay order issued September 14, 2005, lifted motion to intervene granted 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 Relator Ford Motor Company and intervenor Volvo Car Corporation seek a writ of mandamus to vacate a trial court order that declared certain Volvo documents non-confidential under a provision in a stipulated protective order. Because the trial court’s order permitting disclosure contradicted the plain meaning of the parties’ agreement, we conditionally grant mandamus relief.
Via Net v. TIG Ins. Co. , No. 05-0785 (Tex. Dec. 22, 2006)(per curiam) [insurance case law, coverage denial, discovery rule] 05-0785 VIA NET, U.S. DELIVERY SYSTEMS, HOUSTON, U.S. DELIVERY SYSTEMS, INC. AND CORPORATE EXPRESS, INC. v. TIG INSURANCE COMPANY, INC. AND SAFETY LIGHTS CO.; from Harris County; 1st district (01 04 00102 CV, 178 SW3d 10, 05 19 05) Per Curiam Opinion 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.
Was Jan 2 a Day to Be Counted for Computing Deadline for Filing Notice of Appeal?
Hernandez v. Nat’l Restoration Tech., No. 06-0454 (Tex. Dec. 22, 2006)(per curiam) [appellate procedure, timeliness of appeal, extension by holiday] 06-0454 TONY HERNANDEZ AND GARY GIBSON v. NATIONAL RESTORATION TECHNOLOGIES, L.L.C., TRAVELERS PROPERTY CASUALTY INSURANCE COMPANY AND TRAVELERS LLOYDS OF TEXAS INSURANCE COMPANY; from Harris County; 14th district (14 06 00015 CV, ___ SW3d ___, 03 30 06) 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 Petitioners Tony Hernandez and Gary Gibson (collectively “Hernandez”) allege, and Respondents concede, that the court of appeals erroneously dismissed Hernandez’s appeal as untimely due to a mistaken belief that the Harris County District Clerk’s Office was open for business on January 2, 2006.
An appeal is perfected when written notice is filed with the trial court clerk. Tex. R. App. P. 25.1(a). Notice is also to be filed with the appropriate court of appeals. Tex. R. App. P. 25.1(e). When a motion for new trial has been filed, as here, a notice of appeal must be filed with the trial court clerk within ninety days of the signing of the judgment. Tex. R. App. P. 26.1(a)(1). When a filing deadline falls on a holiday or a day in which the district clerk’s office is closed or inaccessible, the filing deadline is automatically extended until the end of the next day when the district clerk’s office is open and accessible. Tex. R. App. P. 4.1(b). Here, the ninety day filing deadline fell on New Year’s Day.
Opinions Released December 15 2006
Land Rover v. Hinojosa No. 04-0794 (Tex. Dec. 15, 2006)(per curiam) [guardian ad litem GAL for injured child, reasonable fees, compensation] LAND ROVER U. K., LTD., LAND ROVER NORTH AMERICA, INC., FORD MOTOR COMPANY, AND GUNN INFINITY, INC., D/B/A GUNN RANGE ROVER v. JUAN J. HINOJOSA; from Hidalgo County; 13th district (13 03 00476 CV, ___ SW3d ___, 07 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 remands the case to the trial court. Per Curiam Opinion (“We conclude that $100,000 is not a reasonable fee for the services Hinojosa provided as guardian ad litem. Accordingly, under Texas Rule of Appellate Procedure 59.1, we grant Land Rover’s petition for review, and, without hearing oral argument, we reverse the court of appeals’ judgment and remand this cause to the trial court to reconsider the amount of the guardian ad litem fee that was taxed against Land Rover.”)(“absent exceptional circumstances not present here, a court should not enhance the fee calculated by multiplying necessary number of hours expended by a reasonable hourly rate.”)
In Re TxDFPS [CPS] (Tex. Dec. 15, 2006)(Wainwright)(substitute opinion) [family law, child abuse and neglect, termination of parental rights, procedural issues, mandamus, other remedy, accelerated appeal] 04-1043 IN RE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES; from Travis County; 3rd district (03-04-00464-CV, 03-04-00466-CV, 150 SW3d 819, 10-21-04) motion for rehearing denied. The Court withdraws its opinion issued September 22, 2006, and issues a substituted opinion. Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally grants the petition for writ of mandamus. Justice Wainwright delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Hecht, Justice Brister, Justice Medina, Justice Green, Justice Johnson, and Justice Willett
First, as the Court acknowledges, we have regularly granted mandamus relief in cases affecting child custody. See, e.g., Powell v. Stover, 165 S.W.2d 322, 324 (Tex. 2005); In re Forlenza, 140 S.W.3d 373, 379 (Tex. 2004). Child- custody proceedings touch on constitutional interests of parents and critical issues affecting children’s welfare. In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). In this sensitive context, we have afforded mandamus review even though an appeal may have been available. Geary v. Peavy, 878 S.W.2d 602, 603 (Tex. 1994).
I agree with the Court that mandamus is generally not available to a party that has an adequate remedy by appeal. But we have said that the concept of “adequacy” is not inexorably fixed, and “rigid rules are necessarily inconsistent with the flexibility that is the remedy’s principal virtue.” In re Prudential Ins. Co., 148 S.W.3d 124, 136 (Tex. 2004). In recent years, we have allowed mandamus review to protect interests of far less consequence than those at stake in this case. We have, for example, granted mandamus relief to a party wrongfully denied arbitration, Jack B. Anglin Co. v. Tipps, 842 S.W.2d 266 (Tex. 1992); a party seeking to enforce a forum-selection clause, In re AIU Ins. Co., 148 S.W.3d 109 (Tex. 2004); a party seeking relief from overbroad discovery orders, In re CSX Corp., 124 S.W.3d 149 (Tex. 2003); a party seeking to enforce a pre-trial jury waiver, In re Prudential Ins. Co., 148 S.W.3d 124; and a party denied a legislative continuance under § 30.003 of the Texas Civil Practice and Remedies Code, In re Ford Motor Co., 165 S.W.3d 315, 322 (Tex. 2005). Yet when a child lingers in foster care while the legal process determines whether the parental relationship will be forever severed, the Court decides that an adequate appellate remedy precludes mandamus review. Under the circumstances this case presents, I disagree.
Opinions - December 8, 2006
Long Trusts v. Griffin (Tex. Dec. 8, 2006)(per curiam) [litigation expense agreement, statute of fraud] 04-0825 THE LONG TRUSTS v. ROBERT M. GRIFFIN, ROBERT M. GRIFFIN, JR., MARVIN AND MARIE OGILVIE AND CHARLES W. CONRAD; from Gregg County; 6th district (06 02 00185 CV, 144 SW3d 99, 07 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 in part and remands the case to the trial court. Per Curiam Opinion
Opinions - December 1, 2006
Brookshire Grocery v. Taylor No. 03-0408 (Tex. Dec. 1, 2006)(Hecht) [personal injury law, premises liability, slip and fall case] 03-0408 BROOKSHIRE GROCERY COMPANY, D/B/A BROOKSHIRE FOOD STORES v. MARY FRANCIS TAYLOR; from Lamar County; 6th district (06‑02‑00122‑CV, 102 SW3d 816, 04‑01‑03) 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. Justice Hecht delivered the opinion of the Court, joined by Chief Justice Jefferson, Justice Wainwright, Justice Brister, Justice Green, Justice Johnson, and Justice Willett Justice Johnson delivered a concurring opinion Justice O'Neill delivered a dissenting opinion, joined by Justice Medina
Bulanek v. Westtex 66 Pipeline Co. No. 04-0011 (Tex. Dec. 1, 2006)(per curiam) [condemnation] DONNIE BULANEK, JACKO GARRETT, AND NANCY GARRETT v. WESTTEX 66 PIPELINE COMPANY; from Brazoria County; 1st district (01‑02‑00548‑CV, ___ SW3d ___, 12‑18‑03) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court modifies the court of appeals' judgment, affirms the judgment as modified and remands the case to the trial court. Per Curiam Opinion
Barker v. Eckman No. 04-0194 (Tex. Dec. 1, 2006)(Johnson) EMZY T. BARKER, III AND AVA BARKER D/B/A BRUSHY CREEK BRAHMAN CENTER AND BRUSHY CREEK CUSTOM SIRES v. WALTER W. ECKMAN, INDIVIDUALLY AND AS NOMINEE AND TRUSTEE, ECKMAN, INC., AND LARRY ECKMAN; from Harris County; 1st district (01‑01‑00079‑CV, ___ SW3d ___, 01‑22‑04) 2 petitions The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Johnson delivered the opinion of the Court [pdf]
Lexington Inc. Co. v. Strayhorn No. 04-0429 (Tex. Dec. 1, 2006)(Brister) [state taxes, insurance companies, premium tax] 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 SW3d 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 [pdf] (Chief Justice Jefferson not sitting)
Tran v. Macha No. 04-1107 (Tex. Dec. 1, 2006)(per curiam) [real property law, adverse possession, mutual mistake] 04-1107 MINH THU TRAN, NORMAN L. ROSER AND WASHINGTON MUTUAL BANK, FA v. WILLIAM MACHA AND NITA MACHA; from Harris County; 1st district (01‑03‑00126‑CV, 176 SW3d 128, 10‑28‑04) 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
Tex. Dep't of Transp. v. Alford No. 05-0164 (Tex. Dec. 1, 2006)(per curiam) [suspension of commercial driver's licenses, DWI] 05-0164 TEXAS DEPARTMENT OF PUBLIC SAFETY v. GYLES ROBERT ALFORD; from Brazos County; 10th district (10‑03‑00035‑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
City of Dallas v. Thompson No. 05-0787 (Tex. Dec. 1, 2006)(per curiam) CITY OF DALLAS v. MARGARET THOMPSON; from Dallas County; 5th district (05-04-01174-CV, 167 SW3d 571, 06‑22‑05) [premises liability, tort claims, governmental immunity] 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
Chisholm v. Chisholm No. 05-0996 (Tex. Dec. 1, 2006)(per curiam) [family law, divorce, agreement] 05-0996 QI WU CHISHOLM v. GARY BRYCE CHISHOLM; from Bexar County; 4th district (04‑04‑00124‑CV, ___ SW3d ___, 08‑24‑05) 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
In re H.R.M No. 06-0270 (Tex. Dec. 1, 2006)(per curiam) [family law, termination of parental rights, criminal conduct, imprisonment] 06-0270 IN THE INTEREST OF H.R.M.; from Brazoria County; 14th district (14‑05‑00281‑CV, ___ SW3d ___, 02‑14‑06) 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
In re R.R & S.J.S No. 06-0460 (Tex. Dec. 1, 2006)(per curiam) [family law, termination of parental rights] 06-0460 IN THE INTEREST OF R.R. AND S.J.S., CHILDREN; from Dallas County; 5th district (05‑05‑00918‑CV, 189 SW3d 915, 04‑25‑06) 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 Waco v. Greg Abbott No. 06-0545 (Tex. Dec. 1, 2006)(per curiam) 06-0545 CITY OF WACO, TEXAS v. GREG ABBOTT, ATTORNEY GENERAL OF THE STATE OF TEXAS; from Travis County; 7th district (07‑05‑00067‑CV, ___ SW3d ___, 05‑31‑06) joint motion to dismiss the appeal due to mootness and settlement, and to reverse and vacate the court of appeal's judgment and opinion, granted in part Pursuant to Texas Rule of Appellate Procedure 56.2, after granting the petition for review and without hearing oral argument or considering the merits, the Court vacates the court of appeal's judgment and dismisses the case as moot. Per Curiam Opinion (Justice Willett not sitting)
November 3, 2006
Operating Partners v. Duenez No. 02-00381 (Tex. Nov. 3, 2006)(Wainwright)(opinion on rehearing) [Dram Shop Act, liability, causation, statutory construction, proportionate responsibility] F.F.P. OPERATING PARTNERS, L.P. D/B/A MR. CUT RATE #602 v. XAVIER DUENEZ, AND WIFE, IRENE DUENEZ, AS NEXT FRIENDS OF CARLOS DUENEZ AND PABLO DUENEZ, MINORS; from Calhoun County; 13th district (13 00 00466 CV, 69 S.W.3d 800, 02 14 02) On April 8, 2005, the Court granted petitioner's motion for rehearing. This Court's opinions and judgment of September 3, 2004, are withdrawn and the opinions and judgment issued today are substituted. The Court reverses the court of appeals' judgment and remands the case to the trial court. Justice Wainwright delivered the opinion of the Court, joined by Justice Hecht, Justice Brister, Justice Medina, Justice Green, Justice Johnson, and Justice Willett ("We are asked to revisit our holding in Smith v. Sewell that the proportionate responsibility scheme of chapter 33 of the Texas Civil Practice and Remedies Code requires an apportionment of responsibility under chapter 2 of the Alcoholic Beverage Code. 858 S.W.2d 350 (Tex. 1993). We decline the invitation to reverse Sewell and instead affirm its holding that the language of the proportionate responsibility statute includes claims under the Dram Shop Act. Neither the purpose nor the language of the Act makes a dram shop automatically responsible for all of the damages caused by an intoxicated patron, regardless of a jury’s determination of the dram shop’s proportion of responsibility. Instead, pursuant to Chapter 33, a dram shop is responsible for its proportionate share of the damages as determined by a jury. Accordingly, we reverse the court of appeals’ judgment and remand the case for a new trial.... We granted F.F.P.’s petition for review and issued an opinion on September 3, 2004. F.F.P. filed a motion for rehearing. While the motion was pending, Xavier, Irene, and Ashley Duenez settled their claims against F. F.P. Only the claims of Pablo and Carlos Duenez against F.F.P. remained before the Court. On April 8, 2005, we granted the F.F.P.’s motion for rehearing. The case was re-argued on November 30, 2005. Today we withdraw the Court’s previous opinion and substitute this one in its place.")
Hoover v. Walton No. 04-1004 (Tex. Nov. 3, 2006)(Jefferson)(opinion on rehearing) [attorneys fees, contingency fee, termination fee, present value of accrued legal fees payable upon attorney substitution, contrary to public policy, contract unenforceable] 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 S.W.3d 834, 10 14 04) 2 motions for rehearing
The Court grants petitioner's motion for rehearing and denies respondent's motion for rehearing. The Court withdraws its opinions and judgment of June 30, 2006, and substitutes the opinions and judgment issued today. The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to that court. Chief Justice Jefferson delivered the opinion of the Court, joined by Justice O'Neill, Justice Wainwright, Justice Brister, Justice Green, and Justice Johnson We deny Walton’s motion for rehearing and grant Hoover Slovacek’s motion for rehearing. We withdraw our opinion of June 30, 2006 and substitute the following in its place.
("In this case, we must determine whether an attorney hired on a contingent-fee basis may include in the fee agreement a provision stating that, in the event the attorney is discharged before completing the representation, the client must immediately pay a fee equal to the present value of the attorney’s interest in the client’s claim. We conclude that this termination fee provision is contrary to public policy and unenforceable. We affirm the court of appeals’ judgment in part, reverse in part, and remand to the court of appeals for further proceedings.")
("attorneys are entitled to protection from clients who would abuse the contingent fee arrangement and avoid duties owed under contract. Striving to respect both interests, Mandell provides remedies to the contingent-fee lawyer who is fired without cause. Hoover’s termination fee provision, however, in requiring immediate payment of the firm’s contingent interest, exceeded Mandell and forced the client to liquidate 28.66% of his claim as a penalty for discharging the lawyer. Because this feature imposes an undue burden on the client’s ability to change counsel, Hoover’s termination fee provision violates public policy and is unconscionable as a matter of law.")
("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 remand this case to the court of appeals for further proceedings.")
Justice Hecht delivered a dissenting opinion, joined by Justice Medina and Justice Willett