Justice Scott A. Brister's Contributions to Texas Jurisprudence Most recent 2008 opinions written by Justice Brister 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) 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. 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) Justice Brister delivered a dissenting opinion. (Justice Willett not sitting) Kerlin v. Sauceda, No. 05-0653 (Tex. Aug. 29, 2008)(O'Neill) (oil and gas royalties, claims barred by limitations) Justice Brister delivered a concurring opinion, in which Justice Hecht, Justice Medina, and Justice Willett joined. In Re McAllen Medical Center, No. 05-0892 (Tex. Aug 29, 2008)(Corrected Opinion by Brister) 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. G.E. v. Moritz, No. 04-0871 (Tex. June 13, 2008)(Brister) (workplace injury, premises liability, independent contractor, no duty holding precludes land owner liability for contractor's injury) Justice Green delivered a dissenting opinion Leland, DDS v. Brandal, No. 06-1028 (Tex. June 13, 2008)(O'Neill) (HCLC 30-day-extension to file expert report)(Remand proper for grant of 30-day extension by trial court where expert report in support of HCLC was found deficient for the first time in interlocutory appeal) Justice Scott Brister delivered a dissenting opinion In Re McAllen Medical Center, Inc., No. 05-0892 (Tex. May 16, 2008) (Majority Opinion by Scott Brister) (mandamus relief available to compel dismissal of medical malpractice suits) Justice Wainwright delivered a dissenting opinion, in which Chief Justice Jefferson and Justice O'Neill joined. Consumer not supposed to win in arbitration: Supreme Court, in opinion by Brister, overturns homeowners's arbitration award against builder Perry Homes v. Cull, No. 05-0882 (Tex. May 2, 2008)(Opinion by Scott A. Brister) (holding that home owners lost right to arbitrate by litigating and conducting discovery) 05-0882 PERRY HOMES, A JOINT VENTURE, HOME OWNERS MULTIPLE EQUITY, INC., AND WARRANTY UNDERWRITERS INSURANCE COMPANY v. ROBERT E. CULL, AND S. JANE CULL; from Tarrant County; 2nd district (02-04-00052-CV, 173 S.W.3d 565, 08-31-05) The Court reverses the court of appeals' judgment, vacates the arbitration award, and remands the case to the trial court. 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. Did juvenile murder defendant effectively invoke right to counsel? - Supreme Court, highest court for civil appeals, addresses constitutional criminal law issue in juvenile murder case In the Matter of HV, No. 06-0005 (Tex. Apr. 11, 2008)(Brister) (juvenile law, Miranda warning, requirements for effective invocation of right to counsel) 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. Supreme Court sides with majority of courts of appeals on questions of interlocutory appeals in medical malpractice cases 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. Justice Willett delivered a concurring opinion. Justice Brister helps workers comp insurance carrier get share of wrongful death damages sought by family of worker killed on the job Texas Mutual Ins. Co. v. Ledbetter, No. 06-0814 (Tex. Apr. 4, 2008)(Brister) (insurance subrogation claim, workers' compensation, recovery from third-party tortfeasor, non-suit) TEXAS MUTUAL INSURANCE COMPANY v. PAULA LEDBETTER, REPRESENTATIVE OF THE ESTATE OF CHARLES WADE LEDBETTER, INDIVIDUALLY AND AS NEXT FRIEND OF DUSTIN WADE LEDBETTER, A MINOR, AND TONJA LEDBETTER AND JAMIE LEDBETTER, INDIVIDUALLY; from Jones County; 11th district (11-05-00098-CV, 192 S.W.3d 912, 06-01-06) 2 petitions motion for emergency relief from declaratory judgment action dismissed as moot 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 Chief Justice Jefferson, Justice Hecht, Justice O'Neill, Justice Wainwright, Justice Medina, Justice Green, and Justice Willett joined, and in which Justice Johnson joined as to Parts I through III and Part V. Texas Supreme Court, in opinion by Justice Brister, absolves auctioneer of responsibility for selling defective car later involved in deadly rollover New Texas Auto Auction Services, LP. v. Gomez de Hernandez, No. 06-0550 (Tex. Mar. 28, 2008)(Brister) (auctioneer liability, defective car, automobile safety, defective tires, recall, death) NEW TEXAS AUTO AUCTION SERVICES, L.P. D/B/A BIG H AUTO AUCTION v. GRACIELA GOMEZ DE HERNANDEZ, ET AL.; from Hidalgo County; 13th district (13- 03-00728-CV, 193 S.W.3d 220, 04-06-06) The Court reverses the court of appeals' judgment and reinstates the trial court's judgment. Justice Brister delivered the opinion of the Court. Fraudulent transfer of marital property not actionable as independent tort against spouse Chu v. Hong, No. 06-0127 (Tex. Mar. 28, 2008)(Brister)(family law, divorce, property transfer to third parties, fraudulent transfer, fraud on community by spouse not actionable as independent tort, no double recovery) WILLIAM CHU v. CHONG HUI HONG; from Tarrant County; 2nd district (02-04-00279 CV, 185 S.W.3d 507, 10-20-05) The Court reverses the court of appeals' judgment and renders judgment. Justice Brister delivered the opinion of the Court. Presuit discovery limited in medical malpractice cases In Re Jorden, MD, 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 Owens & 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. Arkoma Basin Exploration Co., No. 03-1066 (Tex. Jan. 25, 2008) (Justice 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, 08-21-03) motion to release security dismissed as moot The Court affirms in part and reverses in part the Dallas 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. (we hold that two of the eight limited partnerships presented legally sufficient evidence of fraud under Virginia law and of damages under Texas law. Accordingly, we affirm the court of appeals’ judgment as to [two defendans]. We reverse its judgment and render a take-nothing judgment against [the other defendants]. 2007 Opinions Authored by Justice Scott Brister Brister Dissents in Lamar Homes, Inc. v. Mid-Century Casualty Co., No. 05-0832 (Tex. Dec. 14, 2007) (Dissent by Brister on motion for rehearing) (insurance law, prompt payment statute, duty to defend, statutory construction) LAMAR HOMES, INC. v. MID-CONTINENT CASUALTY COMPANY Justice Brister delivered a dissenting opinion, in which Justice Hecht and Justice Willett joined. Justice Brister filed a dissenting opinion in Texas Municipal Power Agency v. PUC in which Justice Willett joined. Texas Municipal Power Agency v. PUC, No. 04-0751 (Tex. Dec. 14, 2007)(Majority Opinion by Justice Green) (regulatory policy, agency authority, statutory construction, declaratory judgment, PUC rate regulation) Justice Brister writes strongly worded dissent on worker's right to seek judicial relief when not paid. Majority rules for employer, giving res judicata effect to Workforce Commission decision dismissing untimely statutory payday claim Justice Brister delivered a dissenting opinion, in which Chief Justice Jefferson, Justice O'Neill, and Justice Medina joined. Igal v. Brightstar Information Technology Group, Inc. 04-0931 (Tex. Dec. 8, 2007)(Wainwright) (employment law, Texas Payday Act, res judicata based on commission 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 affirms the court of appeals' judgment. In re Merrill Lynch, No. 04-0865 (Tex. Aug. 24, 2007)(Brister)(arbitration) IN RE MERRILL LYNCH TRUST COMPANY FSB, MERRILL LYNCH LIFE INSURANCE COMPANY, AND HENRY MEDINA; from Nueces County; 13th district (13-04-00150-CV, 159 S.W.3d 162, 08-05-04) stay order issued January 24, 2005, lifted The Court conditionally grants the petition for writ of mandamus. Justice Brister delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Green, and Justice Willett joined, and in which Justice Hecht and Justice Medina joined as to Parts I, III-A, and IV, and Justice O’Neill joined as to Parts I, III, and IV, and Justice Wainwright and Justice Johnson joined as to Parts I, II, and IV. Justice Hecht delivered an opinion concurring in part and dissenting in part, in which Justice Medina joined and in which Justice O’Neill joined as to Part I. Justice Johnson delivered an opinion concurring in part and dissenting in part, in which Justice Wainwright joined. Central Ready Mix Concrete Co., Inc. v. Islas, No. 05-0940 (Tex. Jun. 29, 2007)(Opinion by Justice Brister)(liability for work-related injury) Central Ready Mix Concrete Company, Inc. V. Luciano Islas; from Hidalgo County; 13th district (13-03-00099-CV, ___ S.W.3d ___, 02/24/2005) motion to order respondent to revise his response dismissed as moot motion to strike dismissed as moot The Court reverses the court of appeals' judgment and renders judgment. Justice Brister delivered the opinion of the Court. In Re Allied Chemical Corp. No. 04-1023 Tex. Jun. 15, 2007)(Jun. 15, 2006)(Brister)(mandamus) (procedural law) IN RE ALLIED CHEMICAL CORPORATION, ET AL.; from Hidalgo County; 13th district (13-04-00491-CV, ___ S.W.3d ___, 11-04-04) stay order issued March 28, 2005, lifted motion to lift stay, dismissed as moot second supplemental motion to lift stay, dismissed as moot motion to dismiss mandamus proceeding as moot, denied The Court conditionally grants the petition for writ of mandamus. Justice Brister delivered the opinion of the Court, joined by Justice Hecht, Justice Medina, Justice Green, and Justice Willett Justice Hecht delivered a concurring opinion Chief Justice Jefferson delivered a dissenting opinion, joined by Justice O'Neill, Justice Wainwright, and Justice Johnson Justice Wainwright delivered a dissenting opinion State of Texas v. Oakley, No. 06-0050 (Tex. Jun. 8, 2007)(Brister)(wrongful imprisonment compensation claim, assignability) THE STATE OF TEXAS v. BARBARA OAKLEY, AS GUARDIAN OF THE ESTATE AND PERSON OF RICHARD DANZIGER; from Travis County; 3rd district (03‑05‑00007‑CV, 181 S.W.3d 855, 12/16/2005) - consolidated with - State of Texas v. Oakley, No. 06-0172 (Tex. Jun. 8, 2007)(Brister)(cause of action for wrongful imprisonment) THE STATE OF TEXAS v. BARBARA OAKLEY, AS GUARDIAN OF THE ESTATE AND PERSON OF RICHARD DANZIGER; from Travis County; 3rd district (03‑05‑00271‑CV, ___ S.W.3d ___, 01/20/2006 The Court reverses in part and affirms in part the court of appeals' judgment and remands the case to the trial court. Justice Brister delivered the opinion of the Court Farmers Group, Inc. v Lubin, No. 05-0169 (Tex. Apr. 27, 2007)(Brister)(AG class action suit) Justice Hecht delivered a separate opinion in Farmers Group, Inc. v. Lubin Was the patient also at fault in failed diagnosis where the patient was a doctor? Jackson v. Axelrad, No. 04-0923 (Tex. Apr. 20, 2007)(Brister)(HCLC, medical malpractice) In this unusual medical malpractice case, both physician and patient were doctors. Each claimed the other was negligent, and a jury agreed both were. As the jury assessed slightly more fault to the plaintiff (51 percent) than the defendant (49 percent), the trial court entered a take-nothing judgment. A divided court of appeals reversed and remanded for a new trial, disregarding the finding of the plaintiff’ s negligence because laymen generally have no duty to volunteer information during medical treatment. But the plaintiff here was not a layman, and jurors judging his actions could consider his expertise, especially as he emphasized it throughout the trial. Because there was some evidence the plaintiff doctor failed to report a critical symptom when he should have, we reverse the court of appeals’ judgment and reinstate the jury’s verdict. A New Twist in the Evolving Immunity Doctrine: City of Galveston Held Immune in State v. City Suit City of Galveston v. State of Texas, No. 04-0890 (Tex. Mar. 2, 2007)(Justice Brister) [sovereign immunity, statutory immunity waiver, permission to sue] Texas has long required the Legislature’s permission to bring suit against governmental entities.[55] There is no reason the Attorney General or the Department of Transportation could not have applied for such permission here. Accordingly, we reverse the court of appeals’ judgment and render judgment dismissing the State’s claim. Dissent by Justice Willet State Farm Life Ins. Co. v. Martinez, No. 05-0812 (Tex. Feb 16, 2007)(Justice Scott Brister) [insurance law, bad faith, statutory penalty, interpleader of funds, avoid additional interest, attorney's fees] 2007 Cases with Separate Opinion by Justice Scott Brister County of Dallas v. Wiland, No. 04-0247 (Tex. Feb. 16, 2007)(Justice Hecht) County of Dallas v. Wiland, No. 04-0247 (Tex. Feb. 16, 2007) (Separate opinion by Justice Brister) County of Dallas v. Walton, No. 04-0631 (Tex. Feb. 16, 2007)(Justice Hecht) County of Dallas v. Walton, No. 04-0631 (Tex. Feb. 16, 2007)(Separate opinion by Justice Brister) The Coca-Cola Co v. Harmar Bottling Co., No. 03-0737 (Tex. Oct. 20, 2006)(Justice Hecht) [monopolies, anti-competitive business practices, marketing] Justice Brister delivered a dissenting opinion in Coca-Cola Co. v. Harmar Bottling Co. 2006 Majority Opinions Authored by Justice Scott Brister Tony Gullo Motors v. Chapa, No. 04-0961 (Tex. Dec. 22, 2006)(Justice Brister) Tony Gullo Motors v. Chapa, No. 04-0961 (Tex. Dec. 22, 2006)(concurrence by Johnson) Tony Gullo Motors v. Chapa, No. 04-0961 (Tex. Dec. 22, 2006)(dissent by O'Neill) Lexington Ins. Co. v. Strayhorn, No. 04-0429 (Tex. Dec. 1, 2006)(Brister)(taxes, insurance company) Fiess v. State Farm Lloyds, No. 04-1104 (Tex. Aug. 31, 2006)(Aug 31, 2006)(Justice Brister) Fiess v. State Farm Lloyds, 202 S.W.3d 744 (Tex. 2006) Fiess v. State Farm Lloyds, No. 04-1104 (Tex. Aug. 31, 2006)(Aug 31, 2006)(Brister)(certified question from 5th Circuit) (Insurance law, mold claim) Justice Medina delivered a dissenting opinion in Fiess v. State Farm (certified question from 5th Circuit regarding mold coverage, Texas homeowners insurance policy) Dissent by Justice Medina in Fiess v. State Farm Lloyds City of San Antonio v. Hartman, No. 05-0147 (Tex. Aug. 31, 2006)(Justice Scott Brister) Minnesota Life Ins. Co. v. Vasquez, No. 04-0477 (Tex. Apr. 7, 2006)(Justice Scott Brister) [insurance law, bad faith, additional damages, extra contractual damages] (claims for extra-contractual damages should not be a routine addition to every breach-of-policy case) Tesco v. Strong, No. 04-0269 (Tex. Mar. 17, 2006)(Brister) Dissent by Hecht [judicial recusal, disqualification of justice with prior association of law firm representing party in appeal] In Re Hon. Karen Angelini, No. 06-0088 (Tex. Feb. 24, 2006)(Justice Scott Brister) [judicial office, filing deadline problem] In re Hon. Robert Francis, No. 06-0040 (Tex. Jan 27, 2006)(Justice Scott Brister) [primary elections, ballot access, error correction] In Re Hon. Charles Holcomb, No. 06-0042 (Tex. Jan. 27, 2006)(mandamus)(Justice Brister) [judicial campaign, error in filing for primary] In Re Jim Sharp, No. 06-0061 (Tex. Jan. 27, 2006)(mandamus)(Justice Scott Brister) [primary filing, curing error] Also see ---> 2006 Texas Supreme Court Per Curiam Opinions | 2007 Tex. Sup. Ct. Opinions Opinions written by other justices: Chief Justice Wallace B. Jefferson | Justice Nathan L. Hecht Justice Harriet O'Neill | Justice Dale Wainwright | Justice Scott A. Brister | Justice David Medina Justice Paul W. Green | Justice Phil Johnson | Justice Don R. Willett | Justice Bland (by assignment) Insurance Company May Avoid Additional Liability by Interpleading Proceeds State Farm Life Ins. Co. v. Martinez, No. 05-0812 (Tex. Feb 16, 2007)(Justice Scott Brister) It has long been the rule in Texas that if an insurer promptly interpleads policy proceeds, it cannot be subjected to statutory penalties for delayed payment even if it missed the statutory deadlines. The Legislature’s 1991 changes to the Insurance Code suggest the courts should not continue imposing a different deadline. But nothing in those changes suggests that statutory penalties should apply after interpleader occurs. Thus, we hold the court of appeals here properly imposed statutory penalties for the delay before interpleader was filed, but improperly imposed them thereafter. . . . Conclusion Accordingly, we hold that Toni is not entitled to prejudgment interest, penalty interest, or attorney’s fees incurred after State Farm filed its interpleader. We reverse the court of appeal’s judgment, and remand to the trial court for redetermination of interest and attorney’s fees in accordance with this opinion. Court Throws Out Award of Extra-contractual Damages in Bad Faith Case Against Insurer Minnesota Life Ins. Co. v. Vasquez, No. 04-0477 (Tex. Apr. 7, 2006)(Justice Brister) The mortgage insurer in this bad-faith case took six months to pay off the insured’s mortgage because (1) the death certificate made coverage unclear and (2) the hospital took four months to produce the remaining medical records. Finding the insurer had knowingly engaged in an unfair or deceptive act, a jury awarded extra-contractual damages on top of the $41,000 mortgage the insurer paid after suit was filed. Applying a statutory cap, the trial court entered a reduced judgment for additional damages, mental anguish, and attorney’s fees, and the court of appeals affirmed. Unquestionably, the insurance company here might have done better. But when insurers are negligent, the Texas Insurance Code does not grant policyholders extra-contractual damages. Instead, such damages are reserved for cases in which an insurer knew its actions were false, deceptive, or unfair. There is no such evidence here. Claims for extra-contractual damages should not be a routine addition to every breach-of-policy case. The Constitution requires “[e]xacting appellate review” of damages that punish rather than compensate. As the lower courts failed to enforce that standard here, we reverse. . . . We agree that when coverage is not reasonably clear, an insurer cannot sit on its hands or draw out an investigation to keep things that way. Under the Insurance Code, an insurer that fails to pay claims promptly must pay for actual damages it causes as a result. But payments beyond that cannot be based on negligence or hindsight; there must be evidence that the insurer was actually aware that it was handling the claim in a way that was false, deceptive, or unfair. As there is no such evidence here, the lower courts erred in awarding extra-contractual damages. Accordingly, we reverse the court of appeal’s judgment and remand to the trial court for entry of judgment in accordance with this opinion. Texas Supreme Court Hands Down Major Decision affecting Mold Damage Claims - Answers Certified Question Referred for Decision by the Fifth Circuit Fiess v. State Farm Lloyds, No. 04-1104 (Tex. Aug. 31, 2006)(Justice Scott Brister) (certified question from 5th Circuit regarding mold coverage, Texas homeowners insurance policy) Dissent by Justice Medina in Fiess v. State Farm Lloyds The question in this case is not whether insurers should provide mold coverage in Texas, a public policy question beyond our jurisdiction as a court. The question instead is whether the language in an insurance policy provides such coverage C no more and no less. . . . Conclusion. Courts adhere to prior precedents for reasons of efficiency, fairness, and legitimacy. For more than a century this Court has held that in construing insurance policies “where the language is plain and unambiguous, courts must enforce the contract as made by the parties, and cannot make a new contract for them, nor change that which they have made under the guise of construction.” If the political branches of Texas government decide that mold should be covered in Texas insurance policies, they have tools at their disposal to do so; Texas courts must stick to what those policies say, and cannot adopt a different rule when a “crisis” arises. Accordingly, for the reasons and to the extent stated in this opinion, we answer the certified question “No.” |
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