Texas Supreme Court Opinions (Tex. 2009-2008)

2009 Opinions by Justice Nathan Hecht
Including Concurrences
and Dissents

Missouri Pacific RR Co. v. Limmer,
No. 06-0023 (Tex. Oct. 23, 2009)(Hecht) (j udgment on j ury verdict in wrongful dea th case arising from train-
truck collision reversed based on federal preemption)
MISSOURI PACIFIC RAILROAD COMPANY D/B/A UNION PACIFIC RAILROAD COMPANY v. PATRICIA
LIMMER, BILLYE JOYCE SMITH, AND BOBBY JEAN NOTHNAGEL; from Harris County;
14th district (14-02-00688-CV, 180 SW3d 803, 11-29-05) 2 petitions
The Court reverses the court of appeals' judgment and renders judgment.
Justice Hecht delivered the opinion of the Court in which Chief Justice Jefferson, Justice Wainwright,
Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined.
(Justice O'Neill and Justice Guzman not sitting)(Newly appointed Justice Eva Guzman is the author of the
opinion in the court of appeals below)

JURISPRUDENTIAL CURIO: FIRST THE AGENCY SUES, THEN IT CLAIMS THE COURT DOES NOT (YET?)
HAVE JURISDICTION.
ERS of Texas v. Duenez, No. 07-0410 (Tex. Jul 3, 2009)(Brister) (agency exclusive jurisdiction doctrine
does not apply to subrogation claim brought by ERS against former plan participant)
EMPLOYEES RETIREMENT SYSTEM OF TEXAS v. XAVIER DUENEZ AND IRENE DUENEZ;
from Calhoun County; 13th district (13-05-00729 CV, ___ SW3d ___, 04-05-07 Opinion below)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without
hearing oral argument, the Court dismisses the petition for want of jurisdiction.
Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice
Medina, Justice Green, and Justice Willett joined.
Justice Hecht delivered a dissenting opinion (arguing nonjusticiability)
Justice Wainwright delivered a dissenting opinion, (in which he would hold that the Texas Legislature gave
ERS exclusive jurisdiction over the subrogation dispute), in which Justice Johnson joined.

MAJORITY DENIED MANDAMUS RELIEF IN DISPUTE OVER LEGAL CAPACITY ISSUE WITH RESPECT TO
ARBITRATION AGREEMENT AND ISSUE NO LESS THAN FOUR (4) SEPARATE OPINIONS. - HECHT
DISSENTS
In re Morgan Stanley & Co, Inc. No. 07-0665 (Tex. Jul. 3, 2009)(Medina) (arbitration vs. litigation:
legal (in)capacity of purported party to arbitration agreement, who decides the issue?)
IN RE MORGAN STANLEY & CO. INC., SUCCESSOR TO MORGAN STANLEY DW, INC.; from Dallas
County; 5th district (05-07-00590-CV, ___ SW3d ___, 07-17-07 Opinion by the Dallas CoA)
The petition for writ of mandamus is denied.
Justice Medina delivered the opinion of the Court [pdf], in which Chief Justice Jefferson, Justice Wainwright,
Justice Green, Justice Johnson, and Justice Willett joined.
Justice Brister delivered a concurring opinion. [pdf]
Justice Willett delivered a concurring opinion. [pdf]
Justice Hecht delivered a dissenting opinion. [5-page pdf opinion] (would have arbitrator - rather
than the court - decide viability of lack-of-legal-capacity defense, in analogy to fraudulent inducement as a
theory to avoid enforcement of a contract)(Justice O'Neill not sitting)

COURT FINDS VAGUENESS AND SPLITS O N EFFECTIVE DATE OF APPELLATE DECISION
Edwards Aquifer Authority v. Chemical Lime, Ltd., (Tex. 2009) No. 06-0911 (Tex. Jun. 26, 2009)
(Hecht)(administrative law, water law, at torney's fees under the UDJA aka DJA)
EDWARDS AQUIFER AUTHORITY, ET AL. v. CHEMICAL LIME, LTD.; from Comal County; 3rd district
(03 -04 -00379 -CV, 212 SW3d 683, 09-14-06)(op. on 2nd motion for rehearing in the court below)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Hecht delivered the opinion of the Court, [pdf 22 pgs], in which Chief Justice Jefferson, Justice O’
Neill, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, Justice Johnson and Justice Willett
joined. [pdf]Justice Brister delivered a concurring opinion. [pdf]
Justice Willett delivered a concurring opinion. [pdf]

Barr v. City of Sinton, No. 06-0074 (Tex. Jun. 19, 2009)(Hecht) (Texas Religious Freedom Restoration
Act (TRFRA) enforced in local NIMBY zoning dispute over halfway house for former prisoners run by
pastor)(church and state disputes, religion and the law cases)
PASTOR RICK BARR AND PHILEMON HOMES, INC. v. CITY OF SINTON; from San Patricio County; 13th
district (13-03-00727-CV, ___ SW3d ___, 11-23-05)
motion to take judicial notice granted
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Hecht delivered the opinion of the Court.

City of San Antonio v. Pollock, No. 04-1118 (Tex. May 1, 2009)(Hecht)
(toxic tort, no municipal liability for public nuisance, takings theory rejected, poison gas leak underground
seepage, causal connection, knowledge of consequences)
CITY OF SAN ANTONIO v. CHARLES POLLOCK AND TRACY POLLOCK, INDIVIDUALLY AND AS NEXT
FRIENDS OF SARAH JANE POLLOCK, A MINOR CHILD; from Bexar County; 4th district (04-03-00403-CV,
155 SW3d 322, 08-18-04)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Hecht delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright,
Justice Johnson, and Justice Willett joined, and in all but Part II-C of which Justice Brister joined.
Justice Medina delivered a dissenting opinion, in which Justice O'Neill joined.
(Justice Green not sitting)

Mann Frankfort Stein & Lipp Advisors v. Fielding, No. 07-0490 (Tex. Apr. 17, 2009)(Johnson) (employment
law, enforceability of covenant not to compete, enforceable promise, consideration, at will employment,
confidentiality)
MANN FRANKFORT STEIN & LIPP ADVISORS, INC., MFSL GP, L.L.C., AND MFSL EMPLOYEE
INVESTMENTS, LTD. v. BRENDAN J. FIELDING; from Harris County; 1st district (01-05-01080-CV, 263
SW3d 232, 05-03-07)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Johnson delivered the opinion of the Court.
Justice Hecht delivered a concurring opinion

TXI Operations, LP v. Perry, No. 05-0030 (Tex. Feb. 27, 2009)(Green)(premises liability, duty of warn of
danger, private road defect, sufficiency of speed limit warning sign)
TXI OPERATIONS, L.P. v. DAVID PERRY; from Liberty County; 9th district (09-04-00070-CV, ___ SW3d
___, 11-18-04)
The Court affirms the court of appeals' judgment.
Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice
Wainwright, Justice Brister, Justice Medina, and Justice Johnson joined.
Justice Hecht delivered a dissenting opinion, in which Justice Medina and Justice Willett joined.

2008 Texas Supreme Court Opinions by Justice Nathan Hecht

OPINION PRODUCTION: In Fiscal Year 2008, Justice Hecht contributed five majority opinions
and four per curiam opinions; he wrote the highest number of dissenting opinions (7) of any
member of the court, issued one concurring opinion and three opinions on denial of review,
bringing the total to 21. The court as a whole handed down 76 majority opinions and 60 per
curiam opinions. Counting all opinions, including dissenting and concurring opinions, 212
opinions were issued in FY 2008, which ended August 31, 2008. The court does not report
statistics by calendar year.

SWBT v. Mitchell, No. 05-0171 (Tex. Dec. 19, 2008)(Hecht)(workers comp, deadline for carrier to
contest compensability of employee's injury)
SOUTHWESTERN BELL TELEPHONE COMPANY, L.P., D/B/A SBC TEXAS v. WILLIAM C. MITCHELL,
BENEFICIARY OF LOUISE MITCHELL, DECEDENT; from Bexar County; 4th district (04-04-00466-CV, ___
SW3d ___, 01-26-05)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Hecht delivered the opinion of the Court, in which Justice Wainwright, Justice Brister, Justice
Johnson, and Justice Willett joined.
Chief Justice Jefferson delivered a dissenting opinion, in which Justice O'Neill and Justice Medina joined.
(Justice Green not sitting)

DART v. Amalgamated Transit Union Local No. 1338, No. 06-0034 (Tex. Dec. 19, 2008)(Hecht)
(federal preemption issue)
DALLAS AREA RAPID TRANSIT v. AMALGAMATED TRANSIT UNION LOCAL NO. 1338; from Dallas
County; 5th district (05-05-00241-CV, 173 SW3d 896, 10-14-05)
The Court reverses the court of appeals' judgment and dismisses the case.
Justice Hecht delivered the opinion of the Court.

SSP Parnters and Metro Novelties, Inc., No. 05-0721 (Tex. Nov. 14, 2008)(Hecht)
(products liability, indemnity)
SSP PARTNERS AND METRO NOVELTIES, INC. v. GLADSTRONG INVESTMENTS (USA) CORPORATION;
from Hidalgo County; 13th district (13-02-00671-CV, 169 SW3d 27, 04-07-05)
2 petitions
The Court affirms the court of appeals' judgment.
Justice Hecht delivered the opinion of the Court.

Zurich American Ins. Co. v. Nokia Inc., No. 06-1030 (Tex. Aug. 29,2008)(Jefferson)
(insurance coverage, duty to defend)
ZURICH AMERICAN INSURANCE COMPANY, FEDERAL INSURANCE COMPANY, AND NATIONAL UNION
FIRE INSURANCE COMPANY v. NOKIA, INCORPORATED; from Dallas County; 5th district
(05-04-01729-CV, 202 SW3d 384, 08-21-06)
The Court modifies the court of appeals' judgment and affirms that judgment as modified.
Chief Justice Jefferson delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright,
Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Hecht delivered a dissenting opinion, in which Justice Brister joined.

Federal Ins. Co. v. Samsung Electronics America, No. 06-1040 (Tex. Aug. 29, 2008)(Jefferson)
(duty to defend cell phone company against consumer class action found)
FEDERAL INSURANCE COMPANY v. SAMSUNG ELECTRONICS AMERICA, SAMSUNG
TELECOMMUNICATIONS AMERICA, L.P. F/K/A SAMSUNG TELECOMMUNICATIONS AMERICA, INC. AND
SAMSUNG ELECTRONICS CO., LTD.; from Dallas County; 5th district
(05-04-01316-CV, 202 SW3d 372, 08-21-06)
The Court affirms the court of appeals' judgment.
Chief Justice Jefferson delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright,
Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Hecht delivered a dissenting opinion, in which Justice Brister joined.

Trinity Universal Ins. Co. v. Cellular One Group, No. 07-0140 (Tex. Aug. 29, 2008)(Jefferson)
(insurance law, duty to defend, companion case to Zurich v. Nokia)
TRINITY UNIVERSAL INSURANCE COMPANY v. CELLULAR ONE GROUP; from Dallas County; 5th district
(05-04-01641-CV, ___ SW3d ___, 01-09-07)
The Court affirms the court of appeals' judgment.
Chief Justice Jefferson delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright,
Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Hecht delivered a dissenting opinion, in which Justice Brister joined.

Coastal Oil & Gas Corp. v. Garza Energy Trust, No. 05-0466 (Tex. Aug. 29, 2008)(Hecht)
(oil and gas law, trespass, rule of capture)
COASTAL OIL & GAS CORPORATION AND COASTAL OIL & GAS USA, L.P. v. GARZA ENERGY TRUST
ET AL.; from Hidalgo County; 13th district
(13-02-00136-CV, 166 SW3d 301, 05-05-05)
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to the
trial court.
Justice Hecht delivered the opinion of the Court, in which Justice Brister, Justice Green, Judge Christopher,
and Justice Pemberton joined, and in all but Part II-B of which Chief Justice Jefferson, Justice Medina,
Justice Johnson, and Justice Willett joined.
Justice Willett delivered a concurring opinion.
Justice Johnson delivered an opinion concurring in part and dissenting in part, in which Chief Justice
Jefferson joined, and in Part I of which Justice Medina joined.
(Judge Tracy Christopher and Justice Robert Pemberton sitting by appointment pursuant to section 22.005
of the Texas Government Code) (Justice O'Neill and Justice Wainwright not sitting)

Koa Holdings, LP v. Young, No. 07-0197 (Tex. June 13, 2008) (Hecht) (restricted appeal, default
judgment)
KAO HOLDINGS, L.P., D/B/A SEBRING APARTMENTS AND WILLIAM KAO v. ANNIE LEE YOUNG; from
Harris County; 14th district (14-05-00398-CV, 214 SW3d 504, 11-21-06)
motion to take judicial notice denied
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 and affirms that judgment as
modified. Justice Nathan Hecht delivered the opinion of the Court.

Evanston Ins. Co. v. Atofina Petrochemicals, No. 03-0647 (Tex. June 13, 2008)(Substituted opinion by
Justice Paul Green on further motions for rehearing) (insurance case)
Atofina's motion for rehearing granted
Evanston's motion for rehearing denied
The Court's opinion and judgment of February 15, 2008 are withdrawn and the opinion and judgment of
this date are issued. The concurring and dissenting opinion by Justice Hecht, issued February 15, 2008,
remains in place.
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice
Wainwright, Justice Brister, Justice Medina, and Justice Willett joined, and in which Justice Hecht and
Justice Johnson joined as to Parts I, II.A–II.D, and II.F.
Justice Hecht delivered an opinion concurring in part and dissenting in part, in which Justice
Johnson joined.

Providence Health Center v. Dowell, No. 05-0386 (Tex. May 23, 2008)(Hecht) (HCLC suicide risk
management, medical treatment, suicide liability) (court concludes that discharge from Defendant's ER did
not proximately cause young man's death by hanging.)
PROVIDENCE HEALTH CENTER A/K/A DAUGHTERS OF CHARITY HEALTH SERVICES OF WACO AND
DEPAUL CENTER A/K/A DAUGHTERS OF CHARITY HEALTH SERVICES OF WACO v. JIMMY AND
CAROLYN DOWELL, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF JONATHAN LANCE DOWELL,
DECEASED; from McLennan County; 10th district (10 -02 -00026 -CV, 167 S .W .3d 48, 03-30-05) (Dissent
by Justice Tom Gray)
- consolidated with -
Pettit, D.O. v. Dowell (Tex. May 23, 2008)
05-0788 JAMES C. PETTIT, D.O. v. JIMMY AND CAROLYN DOWELL, INDIVIDUALLY AND ON BEHALF OF
THE ESTATE OF JONATHAN LANCE DOWELL, DECEASED; from McLennan County; 10th district (10-01-
00420-CV, ___ S.W.3d ___, 08-10-05)
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.
Justice Hecht delivered the opinion of the Court, in which Justice Brister, Justice Green, Justice Johnson,
and Justice Willett joined.
Justice Wainwright delivered an opinion concurring in part and dissenting in part.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Medina joined.

First American Title Ins. Co. v. Susan Combs, Comptroller, No. 05-0541 (Tex. May 16, 2008)(Majority
Opinion by Don Willett) (taxation of out-of-state insurers, retaliatory tax)
Justice Hecht delivered a dissenting opinion in First American Title Ins. Co. v. Combs, in
which Justice Wainwright, Justice Brister, and Justice Medina joined.

Unauthorized Practice of Law Committee v. American Home Assurance Co., Inc., No. 04-
0138 (Tex. Mar. 28, 2008)(Hecht) (UPLC, regulation of the practice of law, in-house counsel)
UNAUTHORIZED PRACTICE OF LAW COMMITTEE v. AMERICAN HOME ASSURANCE COMPANY, INC.
AND THE TRAVELERS INDEMNITY COMPANY; from Dallas County; 11th district (11-02-00212-CV, 121 S.
W.3d 831, 11-06-03)
The Court modifies the court of appeals' judgment and affirms that judgment as modified.
Justice Hecht delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill, Justice
Wainwright, Justice Brister, Justice Medina, and Justice Willett joined.
Justice Johnson delivered a dissenting opinion, in which Justice Green joined.

Evans t on Ins. Co. v. Atofina Petrochemicals, Inc., No. 03-0647 (Tex. Feb. 15, 2008)(Justice Green)
(insurance law, indemnification)
EVANSTON INSURANCE COMPANY v. ATOFINA PETROCHEMICALS, INC.; from Jefferson County; 9th
district (09-02-00072-CV, 104 S.W.3d 247, 04/10/03)
opinion and judgment issued May 5, 2006, withdrawn
substituted opinion issued
motion to dismiss petition for review as improvidently granted, denied
joint motion for oral argument on rehearing, dismissed as moot
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
Wainwright, Justice Brister, Justice Medina, and Justice Willett joined, and in which Justice Hecht and
Justice Johnson joined as to Parts I, II.A–II.D, and II.F.
Justice Hecht filed an opinion concurring in part and dissenting in part, in which Justice
Johnson joined.

Fairfield Ins. Co. v. Stephens Martin Paving, LP , No. 04-0728 (Tex. Feb. 15, 2008)(Justice Wainwright)
(insurance coverage and indemnification of punitive damages arising from gross negligence)
FAIRFIELD INSURANCE COMPANY v. STEPHENS MARTIN PAVING, LP; CARRIE BENNETT, INDIVIDUALLY
AND AS REPRESENTATIVE OF THE ESTATE OF ROY EDWARD BENNETT, DECEASED, AND AS NEXT
FRIEND OF LANE EDWARD BENNETT, CODY LEE BENNETT, AND APRIL ANNE BENNETT, MINORS
motion for re-argument denied
The Court answers the question certified by the United States Court of Appeals for the Fifth Circuit.
Justice Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht,
Justice O'Neill, Justice Brister, Justice Medina, Justice Green, and Justice Willett joined, and in which
Justice Johnson joined as to Parts I, II, and IV only.
Justice Hecht delivered a concurring opinion, in which Justice Brister, Justice Medina, and Justice
Willett joined.
Justice Johnson delivered a concurring opinion.

Excess Underwriters v. Frank's Casing Crew & Rental Tools, Inc., No. 02-0730 (Tex. Feb. 1, 2008)
(Substitute opinion on rehearing by Justice Harriet O'Neill; 2005 opinion withdrawn)
(insurance law, right to reimbursement)
EXCESS UNDERWRITERS AT LLOYD'S, LONDON AND CERTAIN COMPANIES SUBSCRIBING
SEVERALLY BUT NOT JOINTLY TO POLICY NO. 548/TA4011F01 v. FRANK'S CASING CREW & RENTAL
TOOLS, INC.; from Harris County; 14th district (14-01-00349-CV, 93 S.W.3d 178, 06/27/02)
The Court affirms the court of appeals' judgment. Justice O'Neill delivered the opinion of the Court, in
which Chief Justice Jefferson, Justice Medina, Justice Johnson, and Justice Willett joined.
Justice Hecht delivered a dissenting opinion, in which Justice Green joined.
Justice Wainwright delivered a dissenting opinion.
(Justice Brister not sitting)

Daimler Chrysler Corp. v. Inman, No. 03-1189 (Tex. Feb. 1, 2008)(Opinion by Justice Nathan Hecht)
(consumer law, product liability, class action dismissed on standing grounds, jurisdictional dismissal, DWOJ)
DAIMLERCHRYSLER CORPORATION v. BILL INMAN, DAVID CASTRO, AND JOHN WILKINS, EACH
INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED; from Nueces County; 13th
district (13-02-00415-CV, 121 S.W.3d 862, 11/20/03)
The Court reverses the court of appeals' judgment and dismisses the case for want of jurisdiction. Justice
Hecht delivered the opinion of the Court, in which Justice Wainwright, Justice Brister, Justice Medina, and
Justice Willett joined.
Chief Justice Wallace Jefferson delivered a dissenting opinion, in which Justice Harriet O'Neill, Justice
Paul Green, and Justice Phil Johnson joined.

In Re Brookshire Grocery Co., No. 05-0300 (Tex. Jan. 4, 2008)(mandamus) (Opinion by Wallace Jefferson)
(appellate procedure, post -trial motions, procedure, extension of trial court's plenary jurisdiction)
IN RE BROOKSHIRE GROCERY COMPANY; from Wood County; 6th district (06-05-00033-CV, 160 S.W.3d
288, 03/25/05)
The Court denies the petition for writ of mandamus.
Chief Justice Jefferson delivered the opinion of the Court, in which Justice O'Neill, Justice Medina, Justice
Johnson, and Justice Willett joined.
Justice Hecht delivered a dissenting opinion, in which Justice Wainwright, Justice Brister, and
Justice Green joined.