Texas Supreme Court Opinions (Tex. 2009-2008) | Jefferson, Wallace B., Chief Justice

2009 Supreme Court Opinions by Chief Justice Jefferson,
Concurrences, and Dissents

Miga v. Jensen, No. 07-0123 (Tex. Oct. 23, 2009)(Jefferson)
(collection of paid judgment upon reversal of the judgment on appeal),
reversal of judgment restitution, unjust enrichment)
DENNIS L. MIGA v. RONALD L. JENSEN; from Tarrant County;
2nd district (02-05-00277-CV, ___ SW3d ___, 11-30-06)
The Court affirms the court of appeals' judgment.
Chief Justice Jefferson delivered the opinion of the Court.

Smith v. Patrick W. Y. Tam Trust, No. 07-0970 (Tex. Oct. 23, 2009)(Jefferson)
(reasonableness of attorneys fees when recovery of damages is less than what was sought)
LAURI SMITH AND HOWARD SMITH v. PATRICK W.Y. TAM TRUST; from Collin County;
5th district (05-06-00356-CV, 235 SW3d 819, 07-31-07)
The Court reverses in part the court of appeals' judgment and remands the case to the trial court.
Chief Justice Jefferson delivered the opinion of the Court.

SUPREMES AGAIN GRANT REVIEW TO VINDICATE HEALTH CARE DEFENDANT'S CLAIM TO SANCTIONS
AFTER ABORTIVE MED-MAL SUIT - INTERLOCUTORY APPEAL CONCERNING EXPERT REPORT
OBJECTIONS WAS NOT REQUIRED AS A PRELUDE.
Hernandez, MD v. Ebrom, No. 07-0240 (Tex. Jul 3, 2009)(Johnson) (HCLC, does med-mal defendant forfeit
right to seek sanctions by failing to pursue by interlocutory appeal challenge to expert report where
objection was overruled by the trial court?)
MIGUEL HERNANDEZ, M.D. v. JULIOUS EBROM AND RICHARD HUNNICUTT; from Hidalgo County;
13th district (13-06-00053 CV, ___ SW3d ___, 02-08-07 Opinion of the court below)
opposed motion for leave to file post-submission brief granted
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice
Brister, Justice Green, and Justice Willett joined. [pdf]
Chief Justice Jefferson delivered a dissenting opinion, in which Justice O'Neill and Justice Medina
joined. [pdf]
View Electronic Briefs in Tex. 2009 No. 07-0240 MIGUEL HERNANDEZ, M.D. v. EBROM

PROBATE: RIGHT TO SURVIVORSHIP WITH RESPECT TO ASSETS/ACCOUNTS BETWEEN SPOUSES
Holmes v. Beatty, No. 07-0784 (Tex. Jun. 26, 2009)(Jefferson)(probate law, right to survivorship
accounts, community property survivorship agreement)
HARRY HOLMES, II, INDEPENDENT EXECUTOR OF THE ESTATE OF THOMAS J. HOLMES, SR.,
DECEASED AND AS TRUSTEE OF ANY TRUST NAMED AS A LEGATEE IN THE WILL OF THOMAS J.
HOLMES, SR., DECEASED v. DOUGLAS G. BEATTY, INDEPENDENT EXECUTOR OF THE ESTATE OF
KATHRYN V. HOLMES, DECEASED; from Harris County; 14th district (14 -03 -0066 3-CV, 233 SW3d 475, 08-
14-07) | Electronic briefs in Holmes v. Beatty No. 07-0784 (Tex. 2009)

consolidated with

Holmes v. Beatty (htm), No. 07-0785 (Tex. Jun. 26, 2009)(Jefferson)(nontestamentary transfer of assets
between spouses, right to survivorship accounts)
HARRY HOLMES, II, INDEPENDENT EXECUTOR OF THE ESTATE OF THOMAS J. HOLMES, SR.,
DECEASED AND AS TRUSTEE OF ANY TRUST NAMED AS A LEGATEE IN THE WILL OF THOMAS J.
HOLMES, SR., DECEASED v. DOUGLAS G. BEATTY, INDEPENDENT EXECUTOR OF THE ESTATE OF
KATHRYN V. HOLMES, DECEASED; from Harris County; 14th district (14 -05 -00474 -CV, 233 SW3d 494, 08-
14-07) 2 petitions
The Court reverses and renders in part and affirms in part the court of appeals' judgment.
Chief Justice Jefferson delivered the opinion of the Court. [pdf 19 pgs]
View Electronic Briefs for 07-0785

HOW MANY MEMBERS OF THE PUBLIC SUFFICE O N AN ATTORNEY DISCIPLINARY PANEL?
In the Matter of Allison, No. 08-0705 (Tex. Jun. 26, 2009)(Jefferson)
(attorney disciplinary appeal, dispute about minimum level of public's representation on panel, rounding up
or down)
IN THE MATTER OF BOMA O. ALLISON
The Court affirms the Board of Disciplinary Appeals' judgment.
Chief Justice Jefferson delivered the opinion of the Court. [pdf]
View Electronic Briefs in ALLISON v. COMMISSION FOR LAWYER DISCIPLINE (Tex. 2009)

Nonanswering Defendant May Be Served with Amended Petition by Certified Mail Even If
More Onerous Relief Is Sought in Amended Pleading - Second Citation No Longer
Necessary
In the Interest of EA, No. 08-0157 (Tex. Jun. 5, 2009)(Jefferson)
(method of service of amended petition, sufficiency of service by certified mail under rule 21a when
Defendant has been served with civil process, but has not filed an answer or made appearance)
IN THE INTEREST OF E.A. AND D.A., CHILDREN; from Wichita County; 2nd district (02-07-00215-CV, ___
SW3d ___, 12-06-07)
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.
Chief Justice Jefferson delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice
Medina, Justice Green, and Justice Johnson joined.
Justice Scott A. Brister delivered a concurring opinion, in which Justice Wainwright and Justice Willett joined.
(default judgment not to be based on amended petition seeking more onerous relief against nonanswering
defendant if not served with new citation)

Ultra Vires Suit as Exception to Sovereign Immunity Bar: City of El Paso v. Heinrich, No.
06-0778 (Tex. May 1, 2009)(Jefferson) (governmental immunity, retrospective vs. prospective relief,
monetary equitable relief against official capacity defendant, individual capacity and official immunity, plea
to the jurisdiction)
THE CITY OF EL PASO, ET AL. v. LILLI M. HEINRICH; from El Paso County; 8th district (08-05-00203-CV,
198 SW3d 400, 07-20-06)
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the
trial court.
Chief Justice Jefferson delivered the opinion of the Court.

Harris County Hospital District v. Tomball Regional Hospital, No. 05-0986 (Tex. May 1, 2009)(Johnson)
(sovereign immunity of hospital district, Tooke v. City of Mexia progeny, sue and be sued language)
HARRIS COUNTY HOSPITAL DISTRICT v. TOMBALL REGIONAL HOSPITAL; from Harris County; 14th
district (14-04-00263-CV, 178 SW3d 244, 07-28-05)
The Court reverses the court of appeals' judgment and dismisses the case.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice
Medina, and Justice Green joined.
Chief Justice Jefferson delivered a dissenting opinion, in which Justice O'Neill, Justice Brister, and
Justice Willett joined. (plaintiff should be permitted to pursue equitable relief for constitutional violation)

Telephone Company not entitled to reimbursement of relocation cost occasioned by toll
road construction: SWBT v. Harris County Toll Road Authority, No. 06-0933 (Tex. 2009)
(Jefferson)(eminent domain, county entity immune to claim for reimbursement of costs of telephone line
relocation necessitated by toll road project, SWBT has no vested property interest in use of public way for
transmission equipment).
SOUTHWESTERN BELL TELEPHONE, L.P., D/B/A SBC TEXAS v. HARRIS COUNTY TOLL ROAD
AUTHORITY AND HARRIS COUNTY; from Harris County; 1st district (01-05-00668-CV, 263 SW3d 48, 09-
14-06)
The Court affirms the court of appeals' judgment.
Chief Justice Jefferson delivered the opinion of the Court.

Effect of failure to give prompt notice of claim:
Prodigy Communications Corp. v. Agricultural Excess & Surplus Insurance, No. 06-0598
(Tex. Mar. 27, 2009)(Jefferson) (insurance law, effect of noncompliance with prompt notice requirement as
condition precedent for coverage of claim, consideration of prejudice to insurer)
PRODIGY COMMUNICATIONS CORP. v. AGRICULTURAL EXCESS & SURPLUS INSURANCE
COMPANY, N/K/A GREAT AMERICAN E & S INSURANCE COMPANY AND GREAT AMERICAN
INSURANCE COMPANY; from Dallas County; 5th district (05-05-00442-CV, 195 SW3d 764, 05-30-06)
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to
the trial court.
Chief Justice Jefferson delivered the opinion of the Court, in which Justice O'Neill, Justice Wainwright,
Justice Brister, Justice Medina, and Justice Green joined.
Justice Wainwright delivered a concurring opinion.
Justice Johnson delivered a dissenting opinion, in which Justice Hecht and Justice Willett joined.

Texas Supreme Court another insurance law question from the Fifth Circuit:
Financial Industries Corp. v. XL Specialty Ins. Co., No. 07-1059 (Tex. Mar. 27, 2009)(Jefferson)
(cert. question from the 5th Circuit) (insurance law, effect of insured's failure to give insurer prompt notice
of claim, prejudice criterion)
FINANCIAL INDUSTRIES CORPORATION v. XL SPECIALTY INSURANCE COMPANY
The Court answers the question certified by the United States Court of Appeals for the Fifth Circuit.
Chief Justice Jefferson delivered the opinion of the Court.

2008 Texas Supreme Court Opinions by Chief Justice Wallace B. Jefferson

PRODUCTIVITY: In Fiscal Year 2008, Chief Jefferson wrote 10 majority opinions, four per
curiams, 7 separate opinions (concurring or dissenting, or both in part), for a total of 21. The Court
as a whole delivered 212 opinions over the course of 12 months, 76 of which were majority
opinions. (The Texas Supreme Court Opinion does not report statistics by calendar year.)

Jury Selection: Peremptory Strikes Found Motivated by Race Require Reversal of Judgment in
Employment Discrimination Case
Davis v. Fisk Electric Co., No. 06-0162 (Tex. Sep. 26, 2008)(Jefferson)
(jury selection, denial of Batson challenge to race-based juror strike was error, new trial ordered)
DONALD DAVIS v. FISK ELECTRIC COMPANY, FISK TECHNOLOGIES & FISK MANAGEMENT, INC.; from
Harris County; 14th district (14-04-00790-CV, 187 SW3d 570, 01-12-06)
The Court reverses in part the court of appeals' judgment and remands the case to the trial court.
Chief Justice Jefferson delivered the opinion of the Court, joined by Justice Hecht, Justice O'Neill, Justice
Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett.
Justice Brister delivered a concurring opinion, in which Justice Medina joined as to Part III.

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.

Ulico Casualty Co. v. Allied Pilots A ssociation, No. 06-0247 (Tex. Aug. 29, 2008)(Johnson)
(insurance coverage, non-coverage claim, waiver, estoppel)
ULICO CASUALTY COMPANY v. ALLIED PILOTS ASSOCIATION; from Tarrant County; 2nd district
(02-04-00120-CV, 187 SW3d 91, 12-15-05)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Johnson delivered the opinion of the Court.
Chief Justice Jefferson delivered a concurring opinion, in which Justice O'Neill joined.

Pleasant Glade Assembly of God v. Schubert, No. 05-0916 (Tex. June 27, 2008) (Majority Opinion by
Justice Medina) (con law, church and state religion disputes, first amendment freedom of religion clause,
exorcism of demons, intentional tort claim by church member for mental anguish damages barred by
church's religious doctrine immunity, estoppel claim rejected)
Chief Justice Jefferson delivered a dissenting opinion, in which Justice Green joined, and in Parts II-A,
III, and IV of which Justice Johnson joined.
Justice Green delivered a dissenting opinion.
Justice Johnson delivered a dissenting opinion.

JCW Electronics, Inc. v. Garza, No. 05-1042 (Tex. June 27, 2008) (Opinion by Justice David Medina)
(UCC breach of implied warranty claim in PI, death case a tort for purposes of comparative responsibility
statute; recovery barred)
JCW ELECTRONICS, INC. v. PEARL IRIZ GARZA, INDIVIDUALLY AND ON BEHALF OF THE ESTATE OF
ROLANDO DOMINGO MONTEZ, DECEASED, AND BELINDA LEIGH CAMACHO, INDIVIDUALLY AND AS
NEXT FRIEND OF ROLANDO KADRIC MONTEZ, A MINOR CHILD; from Cameron County; 13th district (13-
02-00577-CV, 176 SW3d 618, 10-13-05)
The Court reverses the court of appeals' judgment and renders judgment.
Justice David Medina delivered the opinion of the Court.
Chief Justice Jefferson delivered a concurring opinion in JCW Electronics v. Garza,
in which Justice O'Neill joined.

In the Matter of H .V ., No. 06-0005 (Tex. Apr. 11, 2008)(Brister) (juvenile law, Miranda warning,
requirements for effective invocation of right to counsel, suppression of confession, exclusion of evidence)
IN THE MATTER OF H.V.; from Tarrant County; 2nd district (02-04-00029-CV, 179 S.W.3d 746, 11-17-05)
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the
trial court. Justice Brister delivered the opinion of the Court, in which Justice O'Neill, Justice Medina, Justice
Johnson, and Justice Willett joined.
Chief Justice Jefferson delivered an opinion concurring in part and dissenting in part, in
which Justice Wainwright and Justice Green joined, and in which Justice Hecht joined as to Parts I, III, and V.

Medical City Dallas, Ltd. v. Carlisle Corp., No. 06-0660 (Tex. Apr. 11, 2008)(Jefferson)
(breach of express warranty claim, entitlement to attorney's fees)
MEDICAL CITY DALLAS, LTD. v. CARLISLE CORPORATION D/B/A CARLISLE SYNTEC
SYSTEMS; from Dallas County; 5th district (05-04-00157-CV, 196 S.W.3d 855, 06-27-06)
The Court reverses in part the court of appeals' judgment and reinstates the trial court's judgment.
Chief Justice Jefferson delivered the opinion of the Court.
(Justice Hecht not sitting)

20281, Inc. v. Parker, No. 06-0574 (Tex. Mar. 28, 2008)(Jefferson)(Dram Shop Act, provider liability,
defense) 20801, INC. v. JOHN L. PARKER; from Harris County; 14th district (14-05-00250-CV, 194 S.W.3d
556, 04-11-06)
The Court reverses in part the court of appeals' judgment and remands the case to the trial court.
Chief Justice Jefferson delivered the opinion of the Court.

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 Daimler Chrysler v. Inman,
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)(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.
In this mandamus action, the court considers whether a motion for new trial filed within thirty days of
judgment, but after a preceding motion for new trial has been overruled, extends the trial court’s plenary
power under Texas Rule of Civil Procedure 329b, and holds that it does not. Accordingly the court denies
relator Brookshire Grocery Company’s petition for writ of mandamus.