Texas Supreme Court Opinions (Tex. 2009 2008)

2009 Texas Supreme Court Opinions
by Justice Phil Johnson,
Including Dissents and Concurrences

Whirlpool Corp. v. Camacho, No. 08-0175 (Tex. Dec. 11, 2009)(Johnson)
(product liability suit, design defect, laundry dryer fire, expert testimony)
(judgment on jury verdict reversed)
WHIRLPOOL CORPORATION v. MARGARITA CAMACHO, ET AL.; from Hidalgo County;
13th district (13-05-00361-CV, 251 SW3d 88, 01-17-08)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Phil Johnson delivered the opinion of the Court [in pdf]
(Justice Guzman not sitting)
View Electronic Briefs WHIRLPOOL CORPORATION v. CAMACHO

Akin, Gump, Strauss, Hauer & Feld, LLP v. National Development and Research Corp.
No. 07-0818 (Tex. Oct. 30, 2009)(Johnson)(legal malpractice, attorney's caused by malpractice as recoverable
damages, the American Rule)(amount of fees to be determined upon remand)
AKIN, GUMP, STRAUSS, HAUER & FELD, L.L.P. v. NATIONAL DEVELOPMENT AND RESEARCH
CORPORATION; from Dallas County; 5th district (05-06-01024-CV, 232 SW3d 883, 08-29-07)
2 petitions
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case in part to
the court of appeals.
Justice Johnson delivered the opinion of the Court.

SUPREME COURT ORDERS TRIAL COURTS TO EXPLAIN WHY THEY GRANTED NEW TRIALS: "In the
Interest of Justice" - which is a common label for judicial discretion - does not pass muster.
In Re Columbia Medical Center of Las Colinas
No. 06-0416 (Tex. Jul. 3, 2009)(Johnson) (mandamus granted) (jury trial, reasons for trial court judge
disregarding jury verdict and granting new trial required) (mandamus granted to order trial court to elaborate on
reasons for setting aside jury verdict and granting new trial)(also see --> JNOV)
IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, SUBSIDIARY, L.P. D/B/A LAS COLINAS MEDICAL
CENTER, ANTONETTE CONNER, AND ANNA MATHEW; from Dallas County;
5th district (05-06-00611-CV, ___ SW3d ___, 05-12-06 Opinion of the Dallas Court of Appeals) as reinstated;
stay order issued August 29, 2008, lifted
The Court conditionally grants in part and denies in part the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister,
and Justice Willett joined.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice
Green joined.
E -Briefs in Tex 2009 No. 06-0416 IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS
The Texas Constitution provides that the right of trial by jury “shall remain inviolate.” Tex. Const. art. 1, § 15.
The issue before us is whether, after a jury has rendered its verdict, the trial court may disregard that verdict,
grant a new trial, and explain its action only as being “in the interests of justice and fairness.” We conclude that
just as appellate courts that set aside jury verdicts are required to detail reasons for doing so, trial courts must
give more explanation than “in the interest of justice” for setting aside a jury verdict. We conditionally grant
mandamus relief directing the trial court to more specifically set out the reasons for which it set aside the jury
verdict and granted a new trial.
Conclusion: We conditionally grant relief. We direct the trial court to specify the reasons it refused to enter
judgment on the jury verdict and ordered a new trial as to Columbia. The reasons should be clearly identified
and reasonably specific. Broad statements such as “in the interest of justice” are not sufficiently specific. We are
confident the trial court will comply. The writ will issue only if it fails to do so.

AFTER MANDAMUS PETITION-ABATEMENT PING-PONG INVOLVING THREE DIFFERENT TRIAL COURT
JUDGES, SUPREMES ORDER THE LAST ONE TO SERVE UP A VALID EXPLANATION WHY NEW TRIAL WAS
GRANTED.
In Re Baylor Medical Center at Garland,
No. 06-0491 (Tex. Jul 3, 2009) (mandamus granted)(Johnson)
(trial judge granted new trial and then resigned, mandamus abatement, current judge ordered to provide reason
for granting new trial after jury verdict)
IN RE BAYLOR MEDICAL CENTER AT GARLAND; from Dallas County;
5th district (05-05-01663-CV, ___ SW3d ___, 01-04-06 Opinion of the Dallas Court below)
as reinstated, stay order issued August 29, 2008, lifted
The Court conditionally grants in part and denies in part the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister,
and Justice Willett joined.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice
Green joined.

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
A defendant in a health care liability claim may appeal from the interlocutory order denying its objection to the
plaintiff’s expert report. The statutes authorizing the defendant’s objection and appeal do not impose
consequences if an interlocutory appeal is not pursued. In this case, we consider whether a defendant health
care provider’s failure to challenge the adequacy of an expert report by interlocutory appeal precludes a
challenge of the report by appeal from a final judgment when the plaintiff later nonsuits before trial. The court of
appeals held it does; we hold it does not. We reverse and remand to the court of appeals.

ANOTHER NEW TRIAL - ANOTHER MANDAMUS TO GET THE TRIAL COURT TO JUSTIFY THE ACT.
In Re E.I. Du Pont de Nemours and Co., No. 08-0625 (Tex. Jul. 3, 2009)(Johnson)
(mandamus granted: trial court's grant of new trial following jury verdict requires explanation)
IN RE E.I. DU PONT DE NEMOURS AND COMPANY; from Jefferson County;
9th district (09-08-00318-CV, ___ SW3d ___, 07-24-08 Opinion of the Ninth Court of Appeals)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court conditionally
grants in part and denies in part the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister,
and Justice Willett joined. [pdf]
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice
Green joined. [pdf]
Electronic Briefs in Tex. 2009 No. 08-0625 IN RE E.I. DU PONT DE NEMOURS AND CO.
At issue in this mandamus proceeding is whether the trial court abused its discretion by disregarding the jury
verdict and granting a new trial without giving its reasons for doing so. Based on In re Columbia Medical Center
of Las Colinas, ___ S.W.3d ___ (Tex. 2009), we hold that it did and grant relief.
Without hearing oral argument, we conditionally grant DuPont’s petition for writ of mandamus. See Tex. R. App.
P. 52.8(c). The trial court is directed to specify the reasons for which it disregarded the jury verdict and ordered
a new trial. We are confident the trial court will comply, and the writ will issue only if it fails to do so.

JURY INSTRUCTION ERROR FOUND ON DOC AS INDEPENDENT CONTRACTOR
Columbia Rio Grande Healthcare, LP v. Hawley, No. 06-0372 (Tex. Jun. 5, 2009)(Johnson)(HCLC, med-
mal suit against hospital, physician as independent contractor, lost chance of survival, jury instructions)(trial
court found to have erred in refusing jury instructions; retrial ordered on remand)
COLUMBIA RIO GRANDE HEALTHCARE, L.P. D/B/A RIO GRANDE REGIONAL HOSPITAL v. ALICE H. HAWLEY
AND JAMES A. HAWLEY; from Hidalgo County; 13th district (13-03-00427-CV, 188 SW3d 838, 03-23-06)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, Justice Brister, Justice Green, and Justice Willett joined, and in all but Part II-D 2 of which Justice
O'Neill and Justice Medina joined.

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.

Hagen v. Hagen, No. 07-1065 (Tex. May 1 2009)(Johnson)
(family law, divorce decree, postjudgment clarification order, retirement disability benefits division, res judicata,
relitigation)
RAOUL HAGEN v. DORIS J. HAGEN; from Bexar County; 4th district (04-06-00705-CV, ___ SW3d ___, 08-01-
07)
The Court reverses the court of appeals' judgment and affirms the trial court's judgment.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, Justice Green, and Justice Willett joined.
Justice Brister delivered a dissenting opinion, in which Justice O'Neill and Justice Medina joined.

Substituted Concurrence on Motion for Rehearing In Re Watkins, MD, No. 06-0653 (Tex. 2009)
(Substituted concurrence by Johnson)(HCLC failure to comply with expert report requirement in health care
liability suit, proper appellate remedy)
IN RE MARY LOUISE WATKINS, M.D.; from Cameron County; 13th district (13-05-00765-CV & 13-06-00080-CV,
192 SW3d 672, 05-04-06)
The concurring opinion by Justice Johnson issued January 23, 2009 is withdrawn and the concurring opinion
issued this date is substituted. The remaining opinions, issued January 23, 2009, remain in place
.
Mann Frankfort Stein & Lipp Advisors v. Fielding, No. 07-0490 (Tex. Apr. 17, 2009)(Johnson)
(enforceability of covenant not to compete, at will employment, confidentiality, employment at will doctrine)
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

Ford Motor Co. v. Castillo, No. 06-0875 (Tex. 2009)(Johnson)
(product liability defendant given opportunity to conduct discovery on affirmative defense to breach of
settlement claim based on improper juror conduct)(Ford given chance to show it was justified in backing out of
settlement agreement because of allegedly miscommunication from jury that precipitated settlement)
FORD MOTOR COMPANY v. EZEQUIEL CASTILLO, ET AL.; from Cameron County; 13th district (13-04-00638-
CV, 200 SW3d 217, 06-08-06)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Johnson delivered the opinion of the Court.
Justice Wainwright delivered a concurring opinion, in which Justice Medina joined.

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, prejudice factor)
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.

In re Labatt Food Service, LP, No. 07-0419 (Tex. 2009)(Johnson)
(arbitration mandamus, arbitration of wrongful death claim by nons ignatories compelled by mandamus)        IN
RE LABATT FOOD SERVICE, L.P.; from Bexar County; 4th district (04-07-00312-CV, ___ SW3d ___, 05-16-07)
The Court conditionally grants the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court.

2008 Texas Supreme Court Opinions by Justice Phil Johnson, Dissents and
Concurrences

COMPARATIVE PRODUCTIVITY: Justice Phil Johnson authored 22 of the 212 opinions issued by the Court in
FY 2008. Johnson's share includes 6 majority opinions, 3 per curiams, 6 opinions on denial of review, 4
dissents, 1 concurrence, and 1 opinion concurring in part and dissenting in part. Johnson's contribution of
opinions is average. Productivity on the court varies quite a bit. Justice Medina turned in the fewest opinions
(16); on the other end of the spectrum, Justice Brister has 38 opinions to his credit, followed by Justice O'Neill
with 32. The administrative office of the Court does not report statistics by calendar year.

In Re G.E. Co., No. 07-0195 (Tex. Dec. 5, 2008) (Johnson)
(forum non conveniens mandamus granted, asbestos suit)
IN RE GENERAL ELECTRIC COMPANY, ET AL.; from Harris County; 1st district (01-06-01105-CV, ___ SW3d
___, 03-02-07)
stay order issued March 20, 2007, lifted
The Court conditionally grants the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court.
(Justice O'Neill not sitting)

Coastal Oil & Gas Corp. v. Garza Energy Trust, No. 05-0466 (Tex. Aug. 29, 2008)(Hecht)
(oil and gas, trespass, rule of capture)
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.

In re Baylor Medical Center at Garland, No. 06-0491 (Tex. Aug. 29, 2008)(Brister)(HCLC, mandamus
proceeding abated to afford new trial judge opportunity to reconsider issue of granting / ungranting new trial,
plenary power)
abatement order issued | stay order issued
The Court abates this cause pursuant to Texas Rule of Appellate Procedure 7.2.
Justice Johnson delivered a dissenting opinion. (would address problem raised by the case through rulemaking)

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.

State of Texas v. Brown, No. 05-0236 (Tex. Aug. 29, 2008)(Johnson)
(condemnation, fees to landowner reversed))
THE STATE OF TEXAS v. J. GRADY BROWN, JR.; from Denton County; 2nd district
(02-04-00035-CV, 158 SW3d 68, 01-27-05)
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 renders judgment.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, Justice Brister, Justice Medina, Justice Green, and Justice Willett joined.
Justice O'Neill delivered an opinion concurring in part and dissenting in part.

In Interest of MN, a Child, No. 07-0698 (Tex. Aug. 29, 2008)(Johnson)
(termination of parental rights, appellate procedure, extension to file statement of points for appeal)
IN THE INTEREST OF M.N., A CHILD; from Taylor County; 11th district
(11-06-00228-CV, 230 SW3d 248, 05-10-07)
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 that court.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
O'Neill, Justice Wainwright, Justice Brister, Justice Medina, and Justice Green joined.
Justice Willett delivered a dissenting opinion.

Pleasant Glade Assembly of God v. Schubert, No. 05-0916 (Tex. June 27, 2008) (Majority Opinion by Justice
Medina) (constitutional law, church and state religion disputes, first amendment free exercise 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.

FKM Partnership, Ltd. v. Bd. of Regents of Univ. of Houston System, No. 05-0661 (Tex. Jun 6, 2008) (Phil
Johnson) (condemnation, implications of reduction of amount of land to be taken on land owner's recovery of
fees, partial nonsuit, property owner's entitlement to recovery of fees and expenses)
FKM PARTNERSHIP, LTD., A TEXAS LIMITED PARTNERSHIP v. BOARD OF REGENTS OF THE UNIVERSITY
OF HOUSTON SYSTEM; from Harris County; 14th district (14-03-00392-CV, 178 S.W.3d 1, 04-14-05) 2
petitions
The Court affirms the court of appeals' judgment and remands the case to the trial court.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
O'Neill, Justice Wainwright, Justice Brister, Justice Medina, and Justice Green joined.
Justice Willett delivered an opinion concurring in part and dissenting in part.

Perry Homes v. Cull, No. 05-0882 (Tex. May 2, 2008)(Opinion by Scott A. Brister)
(arbitration, waiver of right to compel arbitration by litigation conduct)
Justice Johnson wrote an opinion concurring and dissenting in part in Perry Homes v. Cull, which was joined by
Chief Justice Jefferson and Justice Green

Unauthorized Practice of Law Committee v. American Home Assurance Co., Inc., No. 04-0138 (Tex. Mar. 28,
2008)(Hecht) (in-house counsel, legal profession, unauthorized practice of law UPLC)
Justice Johnson delivered a dissenting opinion, in which Justice Green 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)
The Court answers the question certified by the United States Court of Appeals for the Fifth Circuit.
Justice Hecht delivered a concurring opinion, in which Justice Brister, Justice Medina, and Justice Willett joined.
Justice Johnson delivered a concurring opinion.

City of Rockwall, Texas v. Hughes, No. 05-0126 (Tex. Jan 25, 2008) (Johnson) (annexation, arbitration
construction of statutory provision governing arbitration of municipal annexation disputes)
THE CITY OF ROCKWALL, TEXAS v. VESTER T. HUGHES, AS SOLE INDEPENDENT EXECUTOR OF THE
ESTATE OF W. W. CARUTH, DECEASED; from Rockwall County; 5th district (05-04-01562-CV, 153 S.W.3d
709, 01-20-2005)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright, Justice
Medina, and Justice Green joined.
Justice Willett filed a dissenting opinion, in which Justice Hecht, Justice O'Neill, and Justice Brister joined.