2007 Texas Supreme Court Per Curiam Opinions (Tex. 2007)

For updated table of opinions issued by the Texas Supreme Court go to ---> 2007 Decided Cases

PER CURIAM OPINIONS

High Court Rules that ward's death did not moot
appeal by former guardian who was removed
for cause

Zipp v. Alisa Wuemling, No. 05-0731 (Tex. Mar. 9, 2007)(per curiam)
(guardianship, mootness issue, predecessor guardian, successor guardian of the person, the estate)

Some of Firefighters' waiver of immunity arguments fail, but not all - Court remands pay dispute

City of Dallas v. Saucedo -Falls, et al.; No. 05-0973 (Tex. Mar. 9, 2007)(per curiam)
(sovereign immunity; fire fighters given chance to argue waiver by conduct or statute on remand)

City of Sweetwater, Texas v. Waddell, et al: No. 05-1033 (Tex. Mar. 9, 2007)(per curiam)(“sue and be sued”
provision in charter does not waive city’s immunity under Tooke v. Mexia; firefighters given chance of argue new
limited statutory immunity waiver on remand)

Court grants mandamus relief to order case transferred to county where venue is mandatory

In Re Texas Department of Transportation (TxDoT), No. 06-0289 (Tex. Mar. 9, 2007)(per curiam)(mandamus
granted to enforce mandatory venue provision of TTCA)

In Re Gillespie County, No. 06-00052 (Tex. Mar. 9, 2007)(per curiam)(mandamus granted to enforce mandatory
venue under TTCA) consolidated with In Re Texas Department of Transportation, No. 06-0289
(Tex. Mar. 9, 2007)

Was the judgment final and the notice of appeal timely filed? - It's not always clear

Jane Doe v. Pligrim Rest Baptist Church, No. 06-0686 (Tex. Mar. 9, 2007)(per curiam)
(severance, finality of judgement, order, appellate deadlines, timeliness of notice of appeal NoA)

Mandamus granted to vacate order for sale of property based on void judgment

In Re Discount Rental, Inc., No. 05-0249 (Tex. Mar. 2, 2007)(per curiam)
Legal terms: restricted appeal, void judgment b/c of defective service, lack of authority to order sale, failure to
supersede judgment, enforcement of judgment, writ of execution, return of the property.

Supreme Court declines invitation to allow for two trials on attorneys fees when one will do

Varner v. Cardenas, No. 06-0212 (Tex. Mar. 2, 2007)(per curiam)
Also see Tony Gullo Motors I, L.P. v. Chapa (Tex. 2006)(party must segregate recoverable from unrecoverable
attorney's fees in all cases)
Case type: suit on note, real estate law, title defect, suing title insurance company and its agent
Key legal terms: attorney fee segregation, other claims, claims against third parties, counterclaims, breach of
contract, mutual mistake, reformation of deed, shortfall in acreage
No prejudgment interest on entire balance of note sued on in the absence of proof of date of acceleration

Court of Appeals erred in granting more relief than sought by appellant

Ontiveros v. Flores, No. 06-0607 (Tex. Mar. 2, 2007)(per curiam)
Legal terms: appellate procedure, failure to preserve error, scope of relief on appeal, error preservation on appeal,
waiver of error

High Court reverses court of appeal's dismissal of pro se in former pauperis appeal because appellant
had timely filed affidavit of indigence

Hood v. Wal-Mart, No. 05-0902 (Tex. Feb. 23, 2007)(per curiam)
Terms: pro se, IFP, affidavit of indigence, no contest re: status, DWOP on appeal
Following: Higgins v. Randall County Sheriff's Office, 193 S.W.3d 898 (Tex. 2006)

Supreme Court grants mandamus relief to order arbitration sought by bank against customer; rejects
argument that bank waived right to arbitrate by invoking judicial process

In re Bank One, No. 06-0093 (Tex. Feb 23, 2007)(per curiam)
Terms: arbitration case law, arbitration clause, Federal Arbitration Act (FAA), scope of arbitration agreement,
presumption against waiver of right to arbitrate
Also see: In re Vesta Ins. Group, Inc., 192 S.W.3d 759, 763 (Tex. 2006)

Court rejects argument that UDJA claim provided basis for jurisdiction in fire fighters' suit against city
where money damages were only ultimate plausible remedy; First Court of Appeals had found that city
was not immune to suit and that declaratory judgment claim was viable

The City of Houston v. Williams, No. 06-0093 (Tex. Feb. 23, 2007)(per curiam)
Terms: sovereign immunity, cities, waiver, interlocutory appeal, ILA, conflicts jurisdiction, UDJA, declaratory relief,
statutory waiver
Following Tooke v. City of Mexia. 197 S.W.3d 325 (Tex. 2006) and companion cases

Court Holds that city’s decision to close private business driveway was proper exercise of the City’s
police power

City of San Antonio v. TPLP Office Part Properties, No. 04-1130 (Tex. Feb. 9, 2007)(per curiam).
Terms: takings claim, regulatory taking, land use, cities, zoning ordinance, traffic control, police power
Holding: The court of appeals erred in affirming the trial court’s declaration that closure of vehicular access via the
driveway at issue would not be a valid exercise of the City’s police power, that it would constitute a compensable
taking, and that the City is estopped from closing the driveway.

Court vacates default judgment challenged in restricted appeal because of defect in service of citation

Wachovia Bank v. Gilliam, No. 05-0903 (Tex. Feb. 9, 2007)(per curiam)
Terms: restricted appeal, default judgment, sufficiency of service of process on out-of-state defendant.
Statute requires the Secretary to forward service to a foreign corporation’s “principal office.” See Tex. Bus. Corp. Act
art. 8.10(B). Nothing in the record shows 920 King Street was Wachovia’s principal office either.
Holding and decision: When a default judgment is challenged by restricted appeal, there are no presumptions in
favor of valid service. See Fid. & Guar. Ins. Co. v. Drewery Const. Co., 186 S.W.3d 571, 573 (Tex. 2006). In this
case, substituted service was based on statutes requiring papers to be forwarded to the defendant’s “home office” or
“principal office,” but nothing in the record shows they were. As the court of appeals erred by presuming otherwise,
we reverse.

Supreme Court renders take-nothing judgment in favor of fast food chain in worker's negligence suit
against employer based on injuries sustained at work

Jack in the Box, Inc. v. Skiles, No. 05-0911 (Tex. Feb 9,2007(per curiam)
Terms: workplace safety, workplace injury, nonsubscriber, negligence, employer liability
Jack in the Box argues there is no evidence it owed and breached a duty to warn Skiles of an obviously dangerous
condition. The Supreme Court agreed and, because the holding on that issue was dispositive of the case, declined
to address the other issues.[
Holding: The dangers associated with the use of a ladder to climb over a lift gate are common and obvious to
anyone. Following our holding in Elwood, which we issued after the court of appeals’ opinion in this case, we
conclude Jack in the Box owed no duty to warn Skiles of the danger posed by his intended use of the ladder. We
reverse the court of appeals’ judgment and render a take-nothing judgment in favor of Jack in the Box.

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