Tex. 2011 Opinions authored by Justice Debra Lehrmann

Justice Debra H. Lehrmann

2012 Liaison Assignment for Justice Lehrmann:
State Law Library
JP and Constable Association
Texas Association for Court Administration
State Bar of Texas Pattern Jury Charges
Oversight Committee
Court Reporters Certification Board
Family Law Council

Texas Supreme Court Justice appointed by Gov. Rick Perry in 2010

Lehrmann is the newest member of the High Court, having been appointed to the seat vacated by
former Justice Harriet O'Neill, who resigned prior to expiration of her term of office. Lehrman, a
Republican, faced the state-wide electorate on November 2, 2010 and won voter approval.

2011 LEHRMANN OPINIONS

LAST UPDATED: 1/9/12, 12/20/2011

Shell Oil Co. v. Ross, No. 10-0429 (Tex. Dec. 16, 2011)(Opinion by Lehrmann)
(oil, gas and natural resources law, limitations and discovery rule, fraudulent concealment, accrual of cause of action,
starting date for running of limitations)
This case involves a dispute concerning alleged underpayments of gas royalty. We must decide whether limitations barred
a royalty owner’s claims against the operator of the field. We hold that the fraudulent concealment doctrine does not apply
to extend limitations as a matter of law when the royalty underpayments could have been discovered from readily
accessible and publicly available information before the limitations period expired. When, as in this case, the information
was publicly available and readily accessible to the royalty owner during the applicable time period, a royalty owner who
fails to take action does not use reasonable diligence as a matter of law. It has long been the law that the discovery rule
does not apply to defer the accrual of royalty owners’ claims for underpayments when the injury could have been discovered
through the exercise of due diligence. Accordingly, because the parties do not dispute that the pertinent information was
readily accessible and publicly available, the royalty owner’s claims are time-barred as a matter of law.
Conclusion
We hold that evidence conclusively established that Shell’s alleged fraud could have been discovered by the Rosses
through the exercise of reasonable diligence. Accordingly, we reverse the court of appeals’ judgment and render judgment
for Shell.
SHELL OIL COMPANY; SWEPI LP D/B/A SHELL WESTERN E&P, SUCCESSOR IN INTEREST TO SHELL WESTERN E&P,
INC. v. RALPH ROSS; from Harris County; 1st district (01-08-00713-CV, ___ SW3d ___, 02-25-10)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Lehrmann delivered the opinion of the Court.
Link to Electronic Briefs in this case, including multiple amicus briefs: 10-0429 SHELL OIL CO. v. ROSS

Epps v. Fowler, No. 10-0283 (Tex. Aug. 26, 2011)(Opinion by Justice Debra Lehrmann)
CHRISTOPHER N. EPPS AND LAURA L. EPPS v. BRUCE FOWLER, JR. AND STEPHANIE L. FOWLER;
from Williamson County; 3rd district (03-08-00055-CV, ___ SW3d ___, 02-10-10)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Lehrmann delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright,
Justice Green, Justice Willett, and Justice Guzman joined. [pdf]
Justice Hecht delivered a dissenting opinion, in which Justice Medina and Justice Johnson joined. [pdf]
Link to e-briefs: EPPS v. FOWLER

Omaha Healthcare Center, LLC v. Johnson,
No. 08-0231 (Tex. Jul. 1, 2011)(Opinion by Justice Phil Johnson)(HCLC, med-mal suit, characterization of claim, expert
report requirement)
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 consider Omaha’s request for attorney’
s fees and costs.
CASE DETAILS: OMAHA HEALTHCARE CENTER, LLC v. WILMA JOHNSON, ON BEHALF OF THE ESTATE OF CLASSIE
MAE REED, DECEASED; from Morris County; 6th district (06-07-00089-CV, 246 SW3d 278, 02-08-08)
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.
Justice Phil Johnson delivered the opinion of the Court, in which Chief Justice Wallace B. Jefferson, Justice Nathan L.
Hecht, Justice Dale Wainwright, Justice Paul W. Green, Justice Don R. Willett, and Justice Eva M. Guzman joined. [pdf]
Here is the link to e-briefs in case no. 08-0231 OMAHA HEALTHCARE CENTER, LLC v. JOHNSON
Justice Debra Lehrmann delivered a dissenting opinion, in which Justice David Medina joined.
[pdf]
The Court’s contorted reading of the statute will disserve both patients and health care providers. As the
dissent in Marks warned, “[b]y sweeping even simple negligence claims under the umbrella of medical
malpractice insurance policies, the Court risks broadening the class of claims that medical malpractice
insurance companies must cover.” Marks, 319 S.W.3d at 686 (Guzman, J., concurring and dissenting).
Health care providers will incur higher medical malpractice insurance premiums as insurers adjust their
rates to account for more claims attributed to medical malpractice. See Diversicare, 185 S.W.3d at 862 (O’
Neill, J., dissenting) (noting that providers carry both general and malpractice liability policies, and health
care liability claim litigation expenses fall under the malpractice policy). This defeats the very purpose of
the statute as expressed by the Legislature, “which is to reduce the cost of medical malpractice insurance
in Texas so that patients can have increased access to health care.” Marks, 319 S.W.3d at 686 (Guzman,
J., concurring and dissenting) (citing a previous version of the statute). The uncertain line between
premises liability and medical malpractice claims also means that premises liability insurance premiums
could be adversely affected. Above all, continuing uncertainty will lead to increased litigation costs, forcing
plaintiffs to procure multiple expert reports in cases involving no medical expertise or true health care
related claims.
  Because the Court’s decision will spawn uncertainty and extend health care liability claim treatment to
claims that are not “inseparabl[y] and integral[ly]” related to the rendition of medical services, Marks, 319 S.
W.3d at 664, without regard to legislative intent, I am compelled to respectfully express my dissent.

BP v. Marshall, No. 09-0399 (Tex. May 13, 2011)(Lehrmann)(adverse possession of lease interest;
discovery rule, fraudulent concealment, statute of limitations)
This case involves two related oil and gas mineral lease disputes that were jointly tried. .... We are asked to determine
whether limitations barred the Marshalls’ fraud claim against BP, and whether Vaquillas lost title by adverse possession
after Wagner succeeded to BP’s interests, took over the operations, and produced and paid Vaquillas royalties for nearly
twenty years.
Based in part upon jury findings that BP had made fraudulent representations about its good-faith efforts to develop a well
on the Marshall lease that the Marshalls could not have discovered before limitations expired, the trial court rendered
judgment for the Marshalls. It also rendered judgment for Wagner that Wagner had acquired the Marshall and Vaquillas
leases by adverse possession. The court of appeals affirmed the judgment against BP in most respects, and reversed the
trial court’s judgment for Wagner. 288 S.W.3d 430, 438. We reverse the court of appeals’ judgment and render judgment for
Wagner and BP. We hold that because the Marshalls’ injury was not inherently undiscoverable and BP’s fraudulent
representations about its good faith efforts to develop the well could have been discovered with reasonable diligence before
limitations expired, neither the discovery rule nor fraudulent concealment extended limitations. Accordingly, the Marshalls’
fraud claims against BP were time-barred. We further hold that by paying a clearly labeled royalty to Vaquillas, Wagner
sufficiently asserted its intent to oust Vaquillas to acquire the lease by adverse possession.
We reverse the court of appeals’ judgment as to both BP and Wagner. We hold that the evidence conclusively established
that BP’s fraud could have been discovered by the Marshalls through the exercise of reasonable diligence. We further hold
that the court of appeals erred in reversing the trial court’s judgment awarding title to Vaquillas’s leasehold interest to
Wagner. Accordingly, we reverse and render for BP and Wagner.
BP AMERICA PRODUCTION COMPANY, ATLANTIC RICHFIELD COMPANY AND VASTAR RESOURCES,
INC. v. STANLEY G. MARSHALL, JR., ROBERT RAY MARSHALL, CATHERINE IRENE MARSHALL F/K/A
CATHERINE I.M. HASHMI, AND MARGARET ANN MARSHALL F/K/A MARGARET A.M. JEFFUS, BY AND
THROUGH DAVID JEFFUS, AS INDEPENDENT EXECUTOR OF THE ESTATE OF MARGARET MARSHALL;
from Zapata County; 4th district (04-06-00478-CV, 288 SW3d 430, 12-10-08) 2 petitions
The Court reverses the court of appeals' judgment and renders judgment.
Justice Lehrmann delivered the opinion of the Court. [pdf]
(Justice Green not sitting)
See Electronic Briefs in   09-0399 BP AMERICA PRODUCTION CO. v. MARSHALL (amicus briefs too)

Allen Keller Co., No. 09-0955 (Tex. Apr. 15, 2011)(Lehrman) (premises liability, defective road
condition, contractor no duty to warn or fix premises defect created in course of strict compliance with
contract specifications for county construction project).
In this case we are called upon to decide whether a general contractor owed a duty to a motorist who was killed as a result
of an allegedly dangerous condition created by the contractor’s work. Because Allen Keller Company was working under a
contract that required strict compliance and had no discretion to vary from its terms, we conclude that it had no duty to rectify
the condition. In addition, because the premises were not under Allen Keller Company’s control at the time of the accident
and the condition was known by the property owner, we conclude that Allen Keller Company owed no duty to warn either the
public or the property owner. We reverse the judgment of the court of appeals and render judgment in favor of Keller.
ALLEN KELLER COMPANY v. BARBARA JEAN FOREMAN, ET AL.; from Gillespie County;
4th district (04-08-00490-CV, ___ SW3d ___, 08-31-09)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Lehrmann delivered the opinion of the Court. [pdf]
View Electronic Briefs 09-0955 ALLEN KELLER CO. V. FOREMAN

Molinet v. Kimbrell, MD, No. 09-0544 (Tex. Jan. 21, 2011)(Johnson)
In this case we consider a statutory conflict regarding whether limitations bars Jeremy Molinet’s health care liability claims
against two doctors he sued after they had been designated as responsible third parties pursuant to Texas Civil Practice
and Remedies Code section 33.004. See Tex. Civ. Prac. & Rem. Code § 33.004.1 Molinet joined the doctors as defendants
within sixty days after they were designated as responsible third parties but more than two years after they last treated him.
Section 33.004(e) provides that if a defendant designates a responsible third party the claimant may, within sixty days, join
the designated party “even though such joinder would otherwise be barred by limitations.” Id. However, section 74.251(a)
provides a two-year limitations period for health care liability claims that applies “[n]otwithstanding any other law,” and
section 74.002(a) provides that chapter 74 controls in the event its provisions conflict with other law. See id. §§ 74.251(a),
74.002(a).
We hold that section 74.251(a) prevails and Molinet’s claims against the doctors are barred by its two-year limitations
period. [...] The court of appeals correctly concluded that section 74.251(a) bars Molinet’s suit against Drs. Horan and
Kimbrell. Accordingly, we affirm the court of appeals’ judgment.
JEREMY MOLINET v. PATRICK KIMBRELL, M.D. AND JOHN HORAN, M.D.; from Bexar County; 4th district
(04-08-00379-CV, 288 SW3d 464, 12-31-08)
The Court affirms the court of appeals' judgment.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, Justice Green, Justice Willett, and Justice Guzman joined. [16-page opinion in pdf]
Justice Lehrmann delivered a dissenting opinion, in which Justice Medina joined. [9 page opinion
in pdf]
View Electronic Briefs in 09-0544 MOLINET v. PATRICK KIMBRELL, M.D