Texas Supreme Court Opinions (Tex. 2008)

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2008 Texas Supreme Court Cases with Opinions by Justice O'Neill

Kerlin v. Sauceda, No. 05-0653 (Tex. Oct. 10, 2008)(substituted Opinion by O'Neill)
(oil and gas law, statute of limitations not tolled)
Kerlin v. Sauceda, No. 05-0653 (Tex. Aug. 29, 2008)(Original, superseded, opinion by O'Neill)
(oil and gas royalties, claims barred by limitations)
GILBERT KERLIN, INDIVIDUALLY, GILBERT KERLIN, TRUSTEE, WINDWARD OIL & GAS CORP., AND PI
CORP. v. CONCEPCION SAUCEDA, ET AL.; from Cameron County; 13th district
(13-01-00062-CV, 164 SW3d 892, 06-09-05)
petitioners' motion to consolidate dismissed as moot
The Court reverses the court of appeals' judgment and renders judgment.
Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Wainwright,
Justice Medina, Justice Green, and Justice Johnson joined.
Justice Brister delivered a concurring opinion, in which Justice Hecht, Justice Medina, and Justice Willett
joined.

In re Poly-America, LP, No. 04-1049 (Tex. Aug. 29, 2008)(O'Neill)
(arbitration in employment context, retaliatory discharge, mandamus review of order compelling arbitration)
IN RE POLY-AMERICA, L.P., IND. AND D/B/A POL-TEX INTERNATIONAL, AND POLY-AMERICA GP, L.L.C.;
from Chambers County; 1st district
(01-03-01055-CV, 175 SW3d 315, 09-09-04)
The Court conditionally grants the petition for writ of mandamus.
Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, Justice Medina, Justice Green, and Justice Johnson joined.
Justice Brister delivered a dissenting opinion.
(Justice Willett not sitting)

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. (would remand
condemnation case for consideration of sanctions against the state)

Leland, DDS v. Brandal, No. 06-1028 (Tex. June 13, 2008)(O'Neill) (HCLC 30-day-extension to file expert
report)
JOHN LELAND, D.D.S. v. GEORGE C. BRANDAL AND RUTH L. BRANDAL; from Bandera County; 4th
district (04-05-00855-CV, 217 SW3d 60, 09-13-06)
The Court affirms the court of appeals' judgment.
Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Scott Brister delivered a dissenting opinion.

Justice O'Neill Dissents in CPS mass custody case against FLDS
Justice O'Neill delivered an opinion concurring in part and dissenting in part, in which Justice
Johnson and Justice Willett joined.
In re TDFPS (CPS), No. 08-0391 (Tex. May 29, 2008)(per curiam) (CPS mass case against FLDS sect)
IN RE TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES; from Schleicher County; 3rd
district (03-08-00235-CV, ___ S.W.3d ___, 05-22-08) motion for emergency relief denied
Per Curiam Opinion

Justice O'Neill delivered a dissenting opini o n in Pettit v. Dowell, in which Chief Justice Jefferson and
Justice Medina joined.
Providence Health Center v. Dowell, No. 05-0386 (Tex. May 23, 2008)(Hecht) (HCLC suicide risk
management, medical treatment) (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.

Higgings v. Randall County Sheriff's Office (Higgins II), No. 06-0917 (Tex. May 16, 2008)
(Opinion by Harriet O'Neill) (prisoner suit, defective affidavit of indigence which was not contested)
LAWRENCE HIGGINS v. RANDALL COUNTY SHERIFF'S OFFICE; from Randall County; 7th district
(07-05-00004-CV, ___ S.W.3d ___, 08-22-06)
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 O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Brister, and Justice Medina joined.
Justice Green delivered a dissenting opinion, in which Justice Wainwright and Justice Willett joined.
(Justice Johnson not sitting)

Perry Homes v. Cull, No. 05-0882 (Tex. May 2, 2008)(Opinion by Scott A. Brister)(arbitration award in favor
of consumers overturned; court says home owners implicitly waived right to arbitrate by their litigation
conduct)
Justice Brister delivered the opinion of the Court, in which Justice Hecht, Justice O'Neill, Justice Wainwright,
and Justice Medina joined, and in which Chief Justice Jefferson, Justice Green, Justice Johnson, and
Justice Willett joined as to parts I-V.
Justice O'Neill delivered a concurring opinion.
Justice Johnson wrote an opinion concurring and dissenting in part, which was joined by Chief Justice
Jefferson and Justice Green
Justice Willett delivered an opinion concurring in part and dissenting in part.

Lewis, MD v. Funderburk, No.. 06-0518 (Tex. Apr. 11, 2008) (Brister) (HCLC, interlocutory appeal)
RORY LEWIS, M.D. v. DEWAYNE FUNDERBURK, AS NEXT FRIEND OF WHITNEY FUNDERBURK; from
Limestone County; 10th district (10-05-00197-CV, 191 S.W.3d 756, 04-05-06)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined.
Justice O'Neill delivered a concurring opinion in Lewis v. Funderburk.
Justice Willett delivered a concurring opinion.

Pruett v. Harris County Bail Bond Board, et al, No. 05-0283 (Tex. Mar. 28, 2008)(Harriet O’Neill)
(local governmental entities, regulatory authority, ultra vires claim)
CARL R. PRUETT AND NATIONAL AMERICAN INSURANCE COMPANY v. HARRIS COUNTY BAIL BOND
BOARD, ET AL.; from Harris County; 1st district (01 02 01043 CV, 177 SW3d 260, 03-10-05)
The Court affirms in part and reverses in part the court of appeals' judgment.
Justice O'Neill delivered the opinion of the Court.

Mission Consolidated ISD v. Garcia, No. 05-0734 (Tex. Mar. 28, 2008)(Justice O’Neill)(public
employment, wrongful termination claim, TTCA, tort claims, TCHRA claim, immunity waiver)
MISSION CONSOLIDATED INDEPENDENT SCHOOL DISTRICT v. GLORIA GARCIA; from Hidalgo County;
13th district (13-04-00668-CV, ___ S.W.3d ___, 06-30-05)
– consolidated with –
05-0762 MISSION CONSOLIDATED INDEPENDENT SCHOOL DISTRICT v. MELINDA SOTUYO; from
Hidalgo County; 13th district (13-05-00021-CV, ___ S.W.3d ___, 06 30 05)
– consolidated with –
05-0763 MISSION CONSOLIDATED INDEPENDENT SCHOOL DISTRICT v. DEBORAH MEDINA; from
Hidalgo County; 13th district (13-05-00060-CV, ___ S.W.3d ___, 06 30 05)
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the
trial court.
Justice O'Neill delivered the opinion of the Court.

Nationwide Ins. Co. v. Elchehimi , No. 06-0106 (Tex. Mar. 28, 2008)(Wainwright) (insurance coverage,
breach of contract, claim denial)
NATIONWIDE INSURANCE COMPANY v. MOHAMAD ELCHEHIMI, INDIVIDUALLY AND AS PARENT AND
NEXT FRIEND OF KHALED ELCHEHIMI AND LUKMAN ELCHEHIMI, MINORS; from Ellis County; 10th district
(10-04-00298-CV, 183 S.W.3d 833, 12-28-05)
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 Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht,
Justice Brister, Justice Green, Justice Johnson, and Justice Willett joined.
Justice O'Neill delivered a dissenting opinion in Nationwide v. Elchehimi, in which Justice Medina
joined.

Owe n s & Minor, Inc. v . Ansell Healthcare Products, Inc., No. 06-0322 (Tex. Mar 28, 2008)(Green)
(cert. question from 5th Cir.) (products liability, indemnification, litigation costs)
OWENS & MINOR, INC. AND OWENS & MINOR MEDICAL, INC. v. ANSELL HEALTHCARE PRODUCTS,
INC. AND BECTON, DICKINSON AND COMPANY
motion to consolidate denied
The Court answers the question certified by the United States Court of Appeals for the Fifth Circuit.
Justice Green delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, and Justice Brister joined.
Justice Brister delivered a concurring opinion.
Justice O'Neill delivered a dissenting opinion, in which Justice Medina, Justice Johnson, and Justice
Willett joined.

In Re Jorden, M .D ., No. 06-0369 (Tex. Mar. 28, 2008)(Brister)
(HCLC, MedMal, permissibility of presuit discovery, Rule 202 deposition)
IN RE JACK JORDEN, M.D., ET AL.; from Smith County; 12th district
(12-06-00040-CV, 191 S.W.3d 483, 04-27-06)
relators' joint motion for emergency temporary relief dismissed as moot
The Court conditionally grants the petition for writ of mandamus.
Justice Brister delivered the opinion of the Court.
Justice O'Neill 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)

Arkoma Basin Exploration Co., No. 03-1066 (Tex. Jan. 25, 2008) (Brister)
(jury award of fraud damages reversed against some defendants)
ARKOMA BASIN EXPLORATION COMPANY, INC., ET AL. v. FMF ASSOCIATES 1990-A, LTD., ET AL.;
from Rockwall County; 5th district (05-02-00669 CV, 118 S.W.3d 445, 08-21-2003)
motion to release security dismissed as moot
The Court affirms in part and reverses in part the court of appeals' judgment and renders judgment.
Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, Justice Green, Justice Medina, Justice Johnson, and Justice Willett joined.
Justice O'Neill filed a concurring and dissenting opinion in Arkoma Basin Exploration Co. v. FMF
Associates 1990-A.

AIC Management v. Crews, No. 05-0270 (Tex. Jan 25, 2008)(O’Neill) (eminent domain, condemnation,
sufficiency of legal description, UDJA, jurisdiction of Harris County Civil Courts at Law)
AIC MANAGEMENT v. RHONDA S. CREWS, CURTIS CALDWELL CREWS, ANNETTE CREWS, DENISE
CLAUDEN CREWS, AND CLAUDE CREWS, JR., THE HEIRS OF EMMA CREWS, VALDA CREWS, AND
EVA FAY GROSS, AND ALDINE INDEPENDENT SCHOOL DISTRICT; from Harris County; 1st district
(01-03 01178-CV, ___ S.W.3d ___, 02-03-2005) (Opinion of the First Court of Appeals - by Higley)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice O'Neill delivered the opinion of the Court.
Justice Willett filed a concurring opinion.

In re BP Products North America, Inc., No. 07-0119 (Tex. Jan. 25, 2008)(Gaultney, sitting by assignment)
(discovery dispute, apex deposition, Rule 11 agreement, motion to quash notice of deposition, protective
order, discovery mandamus granted)
Justice Gaultney delivered the opinion of the Court.
(Justice Gaultney sitting by commission pursuant to Section 22.005 of the Texas Government Code)
(Justice O'Neill not sitting)

Paj, Inc. v. The Hanover Ins. Co., No. 05-0849 (Tex. Jan. 11, 2008)(Opinion by Justice O'Neill)
(insurance law, effect of failure to comply with notice of claim requirements)
PAJ, INC. D/B/A PRIME ART & JEWEL v. THE HANOVER INSURANCE COMPANY; from Dallas County; 5th
district (05-04-01047-CV, 170 S.W.3d 258, 08/26/05)
The Court reverses the court of appeals' judgment, renders judgment in part, and remands the case to the
trial court in part.
Justice O'Neill delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Brister, Justice
Medina, and Justice Green joined.
Justice Willett delivered a dissenting opinion, in which Justice Hecht, Justice Wainwright, and Justice
Johnson joined.