Friday, July 1, 2011

July 1, 2011 Texas Supreme Court releases flurry of opinions

Supreme Court Building in Austin

The Supreme Court of Texas released opinions in 12 cases today; - too many to quickly mine for caselaw nuggets on causes of action and affirmative defenses suitable for posting here. The acutal number of separate opinion is even larger due to multiple concurrences and dissents.

The list follows below, with excerpts from the deciding opinions.

For more details and links to opinions in pdf on the Court's web site, click

MOST EYEBROW-RAISING IN TODAY'S CROP OF DECISIONS: Supremes offer supplemental answer to what [else] constitutes a health-care liability claim requiring an expert's certification of non-frivolousness:

Anthing-but-therapeutic SPIDER BITE AS MEDICAL MALPRACTICE - We kid you not. 


Omaha Healthcare Center, LLC v. Johnson (Tex. 2011)

No. 08-0231 (Tex. Jul. 1, 2011)(Opinion by Justice Phil Johnson) (HCLC, med-mal suit, characterization of
claim)(expert report requirement applies to claim of negligent exposure to spider bite in nursing home).

In this case we consider whether claims against a nursing home regarding a patient’s death alleged to have been caused by a brown recluse spider bite are health care liability claims (HCLCs) that required an expert report to be served. The trial court and court of appeals held that they were not. We disagree.

Conclusion. Johnson’s claim is an HCLC and should have been dismissed. Because Omaha requested  its attorney’s fees and costs in the trial court pursuant to Civil Practice and Remedies Code section 74.351(b)(1), the case must be remanded. We grant Omaha’s petition for review. Without hearing oral argument we reverse the court of appeals’  judgment and remand the case to the trial court with instructions to dismiss Johnson’s claims and consier  Omaha’s request for attorney’s fees and costs.
Justice Debra Lehrmann delivered a dissenting opinion, in which Justice David Medina joined. [pdf]

CAVEAT PROPERTY OWNERS: Don't waive statutory remedy to recover stolen goods or compensation

Dallas City Hall
City of Dallas v. VSC, LLC (Tex. 2011)

No. 08-0265 (Tex. Jul. 1, 2011)(Opinion by Chief Justice Wallace B. Jefferson) (takings claim against government precluded given existence of statutory remedy)

We expect our government to retrieve stolen property and return it to the rightful owner. What happens, though, when a person claims an interest in property the government has seized? In this case, the
City of Dallas seized vehicles, which it alleged were stolen, from a company that was entitled to petition for  their return. See Tex. Code Crim. Proc. art. 47.01a(a). Instead of pursuing its statutory remedy, the  company sued, alleging that its interest in those vehicles had been taken without just compensation. We  hold that the availability of the statutory remedy precludes a takings claim. We reverse the court of appeals’ judgment and render judgment dismissing this suit.

Conclusion. VSC received all of the process to which it was entitled. A party cannot claim a lack of just  compensation based on its own failure to invoke a law designed to adjudicate such a claim. We reverse he
court of appeals’ judgment and render judgment dismissing the case. Tex. R. App. P. 60.2(c).
Justice Dale Wainwright delivered a dissenting opinion, in which Justice Phil Johnson and Justice Eva M.
Guzman joined.

UTILITIES REGULATION: Too arcane for the average light-switch flipper to comprehend

AEP Tex. Central Co. v. PUC (Tex. 2011)

No. 08-0634 (Tex. Jul. 1, 2011)(Opinion by Justice Don R. Willett)(PUC utilities law)

This appeal challenges a final order of the Public Utility Commission in a true-up proceeding under Chapter 39 of the Utilities Code, a part of the Public Utility Regulatory Act (PURA). The district court affirmed the order in part and reversed it in part. The court of appeals affirmed the judgment of the district court in part and reversed it in part.1 In two recent decisions, we have reviewed PUC orders in true-up proceedings, giving a general description of Chapter 39 and the true-up procedure

In today’s case, AEP Texas Central Co. (AEP), a transmission and distribution utility, and CPL Retail  Energy, L.P., its affiliated retail electric provider, initiated a proceeding under Section 39.262 to finalize stranded costs and other true-up amounts. The State of Texas, several municipalities, and several other  parties who are consumers of electricity or represent consumer interests (collectively the Consumers) intervened in the proceeding. In its final order (Order), the PUC determined stranded costs, which generally are “based on the  difference between the book value of generation assets and the market value of these assets.”5 The PUC  also made a separate determination of the capacity auction true-up under Section 39.262(d)(2). The issues before us now concern market value, net book value (NBV), and the capacity auction true-up.

Conclusion. We grant the petition for review, and without hearing oral argument, affirm in part and  reverse in part the court of appeals’ judgment, and remand this case to the PUC for further proceedings consistent with this opinion.

NUISANCE ABATEMENT: What rights and remedies does the property owner have?

City of Dallas v. Stewart (Tex. 2011)

No. 09-0257 (Tex. Jul. 1, 2011)(Opinion by Chief Wallace B. Jefferson) (administrative resolution of nuisance abatement dispute with municipality not preclusive, judicial review available to property owner, takings claim)

Urban blight threatens neighborhoods. Either as a risk to public health or as a base for illicit activity, dilapidated structures harm property values far more than their numbers suggest. Cities must be able to abate these nuisances to avoid disease and deter crime. But when the government sets up a mechanism to deal with this very real problem, it must nonetheless comply with constitutional mandates that protect a citizen’s right to her property.

Today we hold that a system that permits constitutional issues of this importance to be decided by an administrative board, whose decisions are essentially conclusive, does not correctly balance the need to abate nuisances against the rights accorded to property owners under our constitution. Independent court review is a constitutional necessity. We affirm the court of appeals’ judgment, but on different grounds.

Conclusion. That the URSB’s nuisance determination cannot be accorded preclusive effect in a takings  suit is compelled by the constitution and Steele, by Lurie and its antecedents, by the nature of the quesion and the nature of the right. The protection of property rights, central to the functioning of our society, should not—indeed, cannot—be charged to the same people who seek to take those rights away. Because we believe that unelected municipal agencies cannot be effective bulwarks against  constitutional violations, we hold that the URSB’s nuisance determination, and the trial court’s affirmance of  that determination under a substantial evidence standard, were not entitled to preclusive effect in Stewart’s  takings case, and the trial court correctly considered the issue de novo.
Justice Eva M. Guzman delivered a dissenting opinion, in which Justice Dale Wainwright, Justice Paul W.
Green, and Justice Phil Johnson joined. [pdf]


Now we know how to crank out the numbers
Haygood v. Garza de Escabedo (Tex. 2011)

No. 09-0377 (Tex. Jul. 1, 2011)(Opinion by Justice Nathan L. Hecht) (what are reasonable health-care  expenses, what is incurred and recoverable?)

Damages for wrongful personal injury include the reasonable expenses for necessary medical care, but  it has become increasingly difficult to determine what expenses are reasonable. Health care providers set charges they maintain are reasonable while agreeing to reimbursement at much lower rates determined by insurers to be reasonable, resulting in great disparities between amounts billed and payments accepted. Section 41.0105 of the Texas Civil Practice and Remedies Code, enacted in 2003 as part of a wide-ranging package of tort-reform measures, provides that “recovery of medical or health care expenses incurred is limited to the amount actually paid or incurred by or on behalf of the claimant.” We agree with the court of appeals that this statute limits recovery, and consequently the evidence at trial, to expenses that the provider has a legal right to be paid.

Conclusion: [W]e hold that only evidence of recoverable medical expenses is admissible at trial. We disapprove the cases that have reached conflicting decisions. Of course, the collateral source rule continues to apply to such expenses, and the jury should not be told that they will be covered in whole or in part by insurance. Nor should the jury be told that a health care provider adjusted its charges because of insurance.
Justice Debra Lehrmann delivered a dissenting opinion, in which Justice David Medina joined. [pdf]

Paper ballots passé 

Andrade v. NAACP of Austin (Tex. 2011)

No. 09-0420 (Tex. Jul. 1, 2011)(Opinion by Chief Wallace B. Jefferson)(challenge to electronic voting without a paper record being generated at the same time)

Technology is changing the way we vote. It has not eliminated controversy about the way votes are recorded and verified. We must decide whether voters have standing to pursue complaints about an electronic voting machine that does not produce a contemporaneous paper record of each vote. Because we conclude that most of the voters’ allegations involve generalized grievances about the lawfulness of government acts, and because their remaining claims fail on their merits, we reverse the court of appeals’ judgment and render judgment dismissing the case.

Conclusion. The voters raise legitimate concerns about system integrity and vulnerability. But these  are policy disputes more appropriately resolved in the give-and-take of politics. Perhaps the Secretary will  decide, as California has, to de-certify certain DREs. Perhaps the Legislature will require a contemporaneous paper record of votes cast, or perhaps Texas will curtail or abandon DRE use altogether.  But we cannot say the Secretary’s decision to certify this device violated the voters’ equal protection rights  or that the voters can pursue generalized grievances about the lawfulness of her acts. “Vindicating the  public interest (including the public interest in Government observance of the Constitution and laws) is the function of [the Legislature] and the Chief Executive.” Lujan, 504 U.S. at 576. We reverse the court of appeals’ judgment and render judgment dismissing the case. Tex. R. App. P. 60.2(c).


Hold your fire! 

Tyler Scoresby, M.D. v. Santillan (Tex. 2011)

No. 09-0497(Tex. Jul. 1, 2011)(Opinion by Justice Don R. Willett)
(HCLC med-mal suits, expert report deadline extension, curing of defective reports, immmediate appealability of trial court's decision by interlocutory appeal)

The Medical Liability Act entitles a defendant to dismissal of a health care liability claim if, within 120 days of the date suit was filed, he is not served with an expert report showing that the claim against him has merit. The trial court’s refusal to dismiss is immediately appealable. The Act sets specific requirements for an  adequate report and mandates that “an objective good faith effort [be made] to comply” with them,5 but it also authorizes the trial court to give a plaintiff who meets the 120-day deadline an additional thirty days in which to cure a “deficiency” in the elements of the report. The trial court should err on the side of granting the additional time and must grant it if the deficiencies are curable. The defendant cannot seek review of this ruling or appeal the court’s concomitant refusal to dismiss the claim before the thirty-day period has expired.

Conclusion. We conclude that a thirty-day extension to cure deficiencies in an expert report may be granted if the report is served by the statutory deadline, if it contains the opinion of an individual with expertise that the claim has merit, and if the defendant’s conduct is implicated. We recognize that this is a minimal standard, but we think it is necessary if multiple interlocutory appeals are to be avoided, and appropriate to give a claimant the opportunity provided by the Act’s thirty-day extension to show that a claim has merit. All deficiencies, whether in the expert’s opinions or qualifications, are subject to being cured before an appeal may be taken from the trial court’s refusal to dismiss the case.
Justice Don R. Willett delivered a concurring opinion. [pdf]
Justice Phil Johnson delivered a dissenting opinion, in which Justice Dale Wainwright joined. [pdf]


Tx DPS v. Cox Texas Newspapers, L.P. (Tex. 2011)  

No. 09-0530 (Tex. Jul. 1, 2011)(access to records)

Our common law protects from public disclosure highly intimate or embarrassing facts. We must decide whether it also protects information that substantially threatens physical harm. We conclude that it does.  Both sides raise important questions, not just about safety but also about the public’s right to know how the
government spends taxpayer money. Those issues could not have been fully litigated under the standard that prevailed before today's decision. Accordingly, we reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings.

Conclusion: We reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings consistent with this opinion. Tex. R. App. P. 60.2 (d).
Justice Dale Wainwright delivered a concurring opinion, in which Justice Phil Johnson joined. [pdf]
(Justice David Medina and Justice Don R. Willett not sitting)

OPEN RECORD ACT aka PUBLIC INFORMATION ACT, henceforth a/k/a TPIA, not just PIA 

Jackson v. State Office of Administrative Hearings (Tex. 2011)

No. 10-0002 (Tex. Jul. 1, 2011)(Opinion by Justice Phil Johnson)(open records act request under PIA)

In order to withhold public information requested pursuant to the Texas Public Information Act (TPIA) a  governmental entity must demonstrate that the requested information is not within the scope of the TPIA or that it falls within one of TPIA’s specific exceptions to the disclosures requested. See Tex. Gov’t Code §§ 552.101-.148; City of Garland v. Dallas Morning News, 22 S.W.3d 351, 355-56 (Tex. 2000). In this case, the State Office of Administrative Hearings (SOAH) refused to disclose certain decisions and orders in license suspension cases related to delinquent child support. The trial court and court of appeals agreed with SOAH that the information is expressly excepted from disclosure by the Texas Government Code provisions.We hold that the decisions and orders must be disclosed after redaction of information expressly excepted from disclosure and not already in a public record or otherwise in the public domain. We reverse and remand to the trial court for further proceedings.

Conclusion. The decisions and orders Jackson requested must be disclosed. See Tex. Gov’t Code §552.002. The Legislature has clearly expressed its intent that exceptions to disclosure be construed narrowly. See Tex. Gov’t Code § 552.001; In re Georgetown, 53 S.W.3d at 340 (“‘When the Legislature has intended to make information confidential, it has not hesitated to so provide in express terms.’” (quoting
Birnbaum v. Alliance of Am. Insurers, 994 S.W.2d 766, 776 (Tex. App.—Austin 1999, pet. denied)); see also Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981) (“[E]very word of a statute must be presumed to have been used for a purpose. Likewise, we believe every word excluded from a statute must also be presumed to have been excluded for a purpose.”) (citations omitted). We decline to read the language of the statute broader than it is written and we conclude that the purpose and intent of the TPIA can be fulfilled by disclosing the requested documents with redactions. See City of Fort Worth v. Cornyn, 86 S.W.3d 320, 326 (Tex. App.—Austin 2002, no pet.) (“To find otherwise would also be inconsistent with the Legislature’s directive to liberally construe the Act in favor of disclosure.”). We therefore hold that SOAH must disclose the requested decisions and orders after redaction of any information obtained during provision of Chapter 231 services, such as information concerning a custodial parent, noncustodial parent, child, and an alleged or presumed father, that was not already in the public domain.


Just call the number on the back door
when the drivers spreads TB
Will insurer pay when the driver gets the passenger sick?

Lancer Ins. Co. v. Garcia Holiday Tours (Tex. 2011)

No. 10-0096 (Tex. Jul. 1, 2011)(Opinion by Justice David Medina) (insurance coverage, indemnity, liability
for communication of disease by bus driver to passenger)

The question in this appeal is whether the transmission of a communicable disease from the driver of a  motor vehicle to a passenger is a covered loss under a business auto policy, which affords coverage for accidental bodily injuries resulting from the vehicle’s use. The issue is one of first impression in this state and perhaps the country. The parties advise that they have found no similar reported cases.

The trial court concluded that the policy covered this type of occurrence and rendered summary judgment that the insurance carrier owed a duty to indemnify the insured. The court of appeals agreed that  the policy might provide coverage for such a claim but reversed the summary judgment and remanded the case to the trial court to resolve a factual dispute about whether the passengers had contracted the disease while in the vehicle. 308 S.W.3d 35, 47 (Tex. App.—San Antonio 2009). Because we conclude that communicable diseases are not an insured risk under this particular policy, we reverse the judgment below and render judgment for the insurance carrier.

Conclusion: We conclude that the transmission of a communicable disease from a bus driver to his passengers was not a risk assumed by the insurance carrier under this business auto policy because the
passengers’ injuries did not result from the vehicle’s use but rather from the bus company’s use of an unhealthy driver. The bus, itself, in its capacity as a mode of transportation, did not produce, and was not a substantial factor in producing, the passengers’ injuries. The court of appeals’ judgment is accordingly reversed and judgment rendered that the passengers, bus company, and driver take nothing on their indemnity claim against the insurance carrier.

ATTORNEY-CLIENT PRIVILEGE: Will the client's secrets leave with the firm-jumping paralegal?  

In Re Guaranty Ins. Services, Inc. (Tex. 2011)(per curiam)

No. 10-0364 (Tex. Jul. 1, 2011)(per curiam opinion) (mandamus granted to undo firm's disqualification from case) (practice of law, law firm support staff-based disqualification, conflicts of interest involving paralegal working for both sides in lawsuit)

What happens when a law firm’s efforts to screen a conflict fail, permitting a nonlawyer who worked on one side of a case at one firm to work on the other side of the same case at the opposing firm? Here, the trial
court disqualified the second firm, reasoning there was a conclusive presumption that the nonlawyer had  shared confidential information, despite evidence he had not. A divided court of appeals denied mandamus  relief. 310 S.W.3d 630, 634. Given our prior decisions on the subject—particularly our recent decision in In re Columbia Valley Healthcare System, L.P., 320 S.W.3d 819 (Tex. 2010) (orig. proceeding), issued our months after the court of appeals’ decision below—we conclude disqualification was not warranted. Further, because the improper disqualification was a clear abuse of discretion for which there is no adequate remedy by appeal, mandamus relief is warranted. See In re Prudential Ins. Co., 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding) (describing when mandamus relief may issue); NCNB Tex. Nat’l Bank v. Coker, 765 S.W.2d 398, 400 (Tex. 1989) (orig. proceeding) (granting mandamus in context of improper disqualification). We conditionally grant mandamus relief and direct the trial court to vacate its disqualification order.For these reasons, and without hearing oral argument, see Tex. R. App. P. 52.8(c), we conditionally grant mandamus relief and direct the trial court to vacate its order granting the motion to disqualify. We are confident the trial court will comply, and the writ will issue only if it does not.

RARE BIRD: Petition for Writ of Mandamus denied with Opinion:

PARALLEL PROCEEDINGS: Plea for Abatement rather than Plea to the Jurisdiction should be used to enforce dominant jurisdiction when two cases are pending in different courts

In Re Puig (Tex. 2011)

No. 10-0460 (Tex. Jul. 1, 2011)(per curiam opinion) (mandamus denied)(dominant and vs. exclusive jurisdiction; proper procedural vehicle to sort it which court will proceed)

In this case, we are asked to grant mandamus relief to correct a district court’s denial of a plea to the jurisdiction. The plea challenged the district court’s jurisdiction to determine the ownership of a ranch  allegedly owned, in part, by an estate undergoing administration in a county court at law. Under our precedent, the issue here is one of dominant, not exclusive, jurisdiction. The proper method for contesting a court’s lack of dominant jurisdiction is the filing of a plea in abatement, not a plea to the jurisdiction as the relators filed here. See Wyatt v. Shaw Plumbing Co., 760 S.W.2d 245, 247–48 (Tex. 1988). Because the district court did not abuse its discretion in denying the relators’ plea to the jurisdiction, we deny the petition for writ of mandamus.

Conclusion: Because the issue is one of dominant, rather than exclusive, jurisdiction the relators should have filed a plea in abatement. The district court’s denial of the relators’ plea to the jurisdiction, therefore, did not constitute an abuse of discretion depriving the relators of an adequate appellate remedy. See Abor v. Black, 695 S.W.2d 564, 567 (Tex. 1985). We note that the improper denial of a plea in abatement may, on occasion, warrant mandamus relief. See, e.g., Curtis, 511 S.W.2d at 266–68. Pleas in abatement are incidental rulings, the denial of which ordinarily does not support mandamus relief. See Abor, 695 S.W.2d at 567.2 But when a court issues an “order which actively interferes with the exercise of jurisdiction” by a court possessing dominant jurisdiction, mandamus relief is appropriate. Id.; see Perry v. Del Rio, 66 S.W.3d 239, 258 (Tex. 2001) (granting mandamus relief to direct a district court to move a trial setting so that another court that already exercised jurisdiction over different cases involving nearly identical issues, parties, and witnesses could first consider those cases); Curtis, 511 S.W.2d at 266–68 (granting mandamus relief directing a judge to sustain a plea in abatement in a child custody suit where one court attempted to exercise jurisdiction with respect to the children, despite the fact that dominant jurisdiction had previously been established in another court). Because the Webb County district court did not commit a clear abuse ofdiscretion in denying the relators’ plea to the jurisdiction, any further inquiry into the relators’ appellate remedy is unnecessary. Accordingly, the relators’ petition for writ of mandamus is denied. 


No, the Texas Supreme Court no longer makes law in this venue.

2011 Texas Supreme Court Per Curiam Opinions  
2011 Texas Supreme Court Decisions issued January through June    

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