Texas Supreme Court Opinions (Tex. 2010-2008)

2010 Opinions by Justice Wainwright

SWBT Co. v. Marketing on Hold, Inc,. No. 05-0748 (Tex. Feb. 19, 2010)(Majority opinion by Wainwright)
(class action undone, class de-certified in interlocutory appeal, standing)
SOUTHWESTERN BELL TELEPHONE COMPANY v. MARKETING ON HOLD, INC. D/B/A SOUTHWEST
TARIFF ANALYST; from Cameron County; 13th district (13-03-00287-CV, 170 SW3d 814, 08-04-05)
emergency motion for expedited decision dismissed as moot
motion to dismiss denied
motion for damages and sanctions denied
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice Wainwright delivered the opinion of the Court, in which Justice Hecht, Justice Green, Justice
Johnson, and Justice Willett joined. [pdf]
Justice Harriet O'Neill delivered a dissenting opinion in SW Bell Telephone Co. v. Markeing on Hold (Tex.
2010) in which Chief Justice Jefferson and Justice Medina joined. (Justice Guzman not sitting)

City of Dallas v. Abbott, AG, No. 07-0931 (Tex. Feb. 19, 2010)(Majority opinion by O'Neill)(Public
Information Act (PIA)) (exceptions from mandatory disclosure)
CITY OF DALLAS v. GREG ABBOTT, ATTORNEY GENERAL OF TEXAS; from Travis County;
7th district (07-06-00161-CV, 279 SW3d 806, 08-13-07)
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 Hecht, Justice
Medina, Justice Green, and Justice Guzman joined.
Justice Wainwright delivered a dissenting opinion in City of Dallas v. Abbott,
in which Justice Johnson joined.
(Justice Willett not sitting)

2009 Texas Supreme Court Opinions
by Justice Dale Wainwright

D.R. Horton-Texas, Ltd. v. Markel International Ins. Co.
No. 06-1018 (Tex. Dec. 11, 2009)(Wainwright)
(CGL insurance coverage, duty to defend, duty to indemnify)
D.R. HORTON-TEXAS, LTD. v. MARKEL INTERNATIONAL INSURANCE COMPANY, LTD.; from Harris
County; 14th district (14-05-00486-CV, ___ SW3d ___, 10-26-06)
The Court affirms in part and reverses in part the court of appeals' judgment and remands the case to the
trial court.
Justice Dale Wainwright delivered the opinion of the Court [in pdf] (Justice Guzman not sitting)
View Electronic Briefs in D.R. HORTON-TEXAS, LTD. V. MARKEL INT'L INS. CO.

NO PARTNERSHIP FORMED, AND THUS NONE EXISTED, UNDER TEXAS REVISED PARTNERSHIP ACT.
SUPREME COURT BASES ANOTHER RULING ON THE TOTALITY OF THE CIRCUMSTANCES "TEST"
Ingram v. Deere, No. 06-0815 (Tex. Jul 3, 2009)(Wainwright)(dispute over existence of partnership
under TRPA, partnership criteria/factors, fiduciary duty) (existence of partnership not proven, take-nothing
judgment reinstated)
JESSE C. INGRAM, PH.D. AND BEHAVIORAL PSYCHOLOGY CLINIC, P.C. v. LOUIS DEERE, D.O. AND
HILLVALE MEDICAL GROUP ASSOCIATION D/B/A HILLVALE MEDICAL ASSOCIATION; from Dallas
County; 5th district (05-05-00063-CV, 198 SW3d 96, 04-27-06 Opinion of the Dallas court of Appeals)
2 petitions
The Court reverses the court of appeals' judgment and reinstates the trial court's judgment.
Justice Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht,
Justice Medina, Justice Green, and Justice Willett joined, in which Justice O'Neill and Justice Brister joined
except as to part II.D.5.a, and in which Justice Johnson joined except as to part II.D.2. [pdf]
Justice Johnson delivered a concurring opinion. [pdf]

JURISPRUDENTIAL CURIO: FIRST THE AGENCY SUES, THEN IT CLAIMS THE COURT DOES NOT (YET?)
HAVE JURISDICTION AND SEEKS DISMISSAL. HIGH COURT SAYS EXCLUSIVE JURISDICTION DOES NOT
APPLY TO SUBROGATION CLAIM.
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.

Columbia Medical Center of Law Colinas, Inc. v. Hogue, No. 04-0575 (Tex. Jun 17,
2009)(Wainwright) (dissenting from majority's denial of petitioner's motion for clarification
of the mandate)
COLUMBIA MEDICAL CENTER OF LAS COLINAS, INC. D/B/A LAS COLINAS MEDICAL CENTER v.
ATHENA HOGUE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF ROBERT HOGUE, JR.,
DECEASED, CHRISTOPHER HOGUE, AND ROBERT HOGUE, III; from Dallas County; 5th district
(05-03-00279-CV, 132 SW3d 671, 04-13-04)
petitioner's motion to clarify mandate denied
Justice Wainwright delivered an opinion, in which Justice Hecht and Justice Brister joined, dissenting to the
denial.

Ford Motor Co. v. Castillo, No. 06-0875 (Tex. 2009)(Johnson)
(defendant entitled to opportunity to conduct discovery on affirmative defenses 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 misleading message 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.

Exxon Corp. v. Emerald Oil & Gas Co., L.C., No. 05-0729 (Tex. Mar. 27, 2009)(Wainright)(oil and
gas law, statutory construction, cause of action for improperly plugging well, standing of subsequent
lessee)
EXXON CORPORATION AND EXXON TEXAS, INC. v. EMERALD OIL & GAS COMPANY, L.C.; from
Refugio County; 13th district (13-99-00757-CV, 228 SW3d 166, 01-27-05)
The Court reverses the court of appeals' judgment and renders judgment.
Justice Wainwright delivered the opinion of the Court.
(Justice O'Neill not sitting)

Exxon Corp. v. Miesch, No. 05-1076 (Tex. Mar. 27, 2009)(Wainwright)(plugging of oil well to prejudice
future production subsequent to dispute over royalties, false statement to Railroad Commission, fraud,
statute of limitations, oil and gas law,)
EXXON CORPORATION AND EXXON TEXAS, INC. v. EMERALD OIL & GAS COMPANY, L.C. AND
LAURIE T. MIESCH, ET AL.; from Refugio County; 13th district (13-00-00104-CV, 180 SW3d 299,
11-29-05)
The Court reverses and renders judgment, in part, and affirms, in part, the court of appeals' judgment,
and remands the case to the trial court.
Justice Wainwright delivered the opinion of the Court.
(Justice O'Neill not sitting)

Prodigy Communications Corp. v. Agricultural Excess & Surplus Insurance, No. 06-0598 (Tex. Mar. 27,
2009)(Jefferson) (insurance law coverage issue, 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.

2008 Texas Supreme Court Cases with Opinions by Justice Dale Wainwright

PRODUCTIVITY: In Fiscal Year 2008 Justice Wainwright delivered 18 opinions: Nine majority
opinions, four per curiam opinions, two dissents, one concurrence, one opinion concurring and
dissenting in part, and one opinion on denial of petition for review.

Columbia Medical Center of Los Colinas v. Hogue, No. 04-0575 (Tex. Aug. 29, 2008)(Wainwright)
(HCLC med-mal gross negligence damages, contributory negligence, trifurcation of trial)
COLUMBIA MEDICAL CENTER OF LAS COLINAS, INC. D/B/A LAS COLINAS MEDICAL CENTER v.
ATHENA HOGUE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF ROBERT HOGUE, JR.,
DECEASED, CHRISTOPHER HOGUE, AND ROBERT HOGUE, III; from Dallas County; 5th district
(05-03-00279-CV, 132 SW3d 671, 04-13-04)
The Court affirms in part and reverses in part the court of appeals' judgment.
Justice Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson, Justice O'Neill,
Justice Brister, Justice Medina, Justice Johnson, and Justice Willett joined, and in Parts II-A, II-C, and II-D of
which Justice Hecht and Justice Green joined.
Justice Brister delivered a concurring opinion, in which Justice Medina joined.
Justice Green delivered an opinion concurring in part and dissenting in part, in which Justice Hecht joined.

City of Waco, Texas v. Lopez, No. 06-0089 (Tex. July 11, 2008)(Opinion by Justice Wainwright)
(public employment, Whistleblower Act, TCHRA, discrimination, exclusive remedy, failure to satisfy
prerequisites for suit by not filing with agency first)
CITY OF WACO, TEXAS v. ROBERT LOPEZ; from Limestone County; 10th district (10-04-00085-CV, 183
SW3d 825, 12-14-05)
The Court reverses the court of appeals' judgment and dismisses the case.
Justice Wainwright delivered the opinion of the Court.

====

Justice Wainwright delivered an opinion concurring in part and dissenting in part in
Providence Health Center v. Dowell, No. 05-0386 (Tex. May 23, 2008)(Hecht) (Med-Mal suits, 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.

In re Team Rocket, LP, No. 06-0414 (Tex. May 23, 3008)(Opinion by Justice Green)(mandamus)
(mandamus granted to enforce first transfer of venue, nonsuit and refiling in third county disapproved)
IN RE TEAM ROCKET, L.P., MLF AIRFRAMES, INC., AND MARK L. FREDERICK; from Fort Bend County;
14th district (14-06-00136-CV, ___ S.W.3d ___, 04-25-06)
stay order issued June 13, 2006, lifted
The Court conditionally grants the petition for writ of mandamus.
Justice Green delivered the opinion of the Court.
Justice Wainwright delivered a concurring opinion in In re Team Rocket, (criticising change in
mandamus jurisprudence as set out in earlier dissent in In re McAllen) in which Chief Justice Jefferson and
Justice O'Neill joined.

In Re McAllen Medical Center, Inc. (Tex. May 16, 2008) (Brister) (mandamus
relief available to med mal defendants to obtain dismissal of malpractice suit, health care liability
claims)
In Re McAllen Medical Center, Inc. No. 05-0892 (Tex. May 16, 2008) (Majority Opinion by Scott Brister)
(mandamus relief granted to compel dismissal of medical malpractice suits by trial court, med. mal suits)
IN RE MCALLEN MEDICAL CENTER, INC., D/B/A MCALLEN MEDICAL CENTER AND UNIVERSAL
HEALTH SERVICES, INC.; from Hidalgo County; 13th district (13-05-00441-CV, ___ S.W.3d ___, 10-
05-05) real parties in interest's motion to abate dismissed as moot
relators' unopposed motion for partial dismissal granted
real parties in interest's motion to seal document granted
relators' motion to seal motion exhibits and restrict review to in camera inspection only granted
The Court conditionally grants the petition for writ of mandamus.
Justice Brister delivered the opinion of the Court, in which Justice Hecht, Justice Medina, Justice
Green, Justice Johnson and Justice Willett joined.
Justice Wainwright delivered a dissenting opinion, in which Chief Justice Jefferson and Justice O'Neill
joined.

Igal v. Brightstar Information Tech Group. Inc., No. 04-0931(Tex. May 2, 2008) (Wainwright)
(employment law, Pay Day Act claim, res judicata, claim preclusion based on agency ruling)
SALEH W. IGAL v. BRIGHTSTAR INFORMATION TECHNOLOGY GROUP, INC. AND BRBA, INC.; from
Dallas County; 11th district (11-03-00099-CV, 140 S.W.3d 820, 06-30-04)
The Court's opinion of December 7, 2007 is withdrawn and the opinion of this date is substituted. The
dissenting opinion by Justice Brister and the judgment, issued December 7, 2007, remain in place.

Villafani v s . Trejo, M.D., No. 06-0501 (Tex. Apr. 18, 2008)(Wainwright) (HCLC, ILA, denial of sanctions,
effect of nonsuit on defendant's right to appeal denial of motion for sanctions)
JUAN MARIO VILLAFANI, M.D. v. ADELA TREJO; from Cameron County; 13th district (13-04-00449-CV,
___ S.W.3d ___, 10-06-05)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Wainwright 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 which Justice Medina joined.

Bowden v. Phillips Petroleum Co., No. 03-0824 (Tex. Feb. 15, 2008)(Justice Wainwright)
(class action de-certification, oil and gas mineral resources law, royalty owners, interlocutory appeal)
KATHRYN AYLOR BOWDEN, BEULAH POORMAN VICK, OMER F. POORMAN, MONTE CLUCK, ROYCE
YARBROUGH, AND BENNY TED POWELL v. PHILLIPS PETROLEUM COMPANY, GPM GAS
CORPORATION, PHILLIPS GAS MARKETING COMPANY, PHILLIPS GAS COMPANY, AND GPM GAS
TRADING COMPANY; from Fort Bend County; 14th district (14-02-00634-CV, 108 S.W.3d 385, 05/01/03)
The Court reverses in part and affirms in part the court of appeals' judgment and remands the case to the
trial court.
Justice Wainwright delivered the opinion of the Court.
(Justice Brister not sitting)

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)