2008 Opinions Authored by Justice Harriet O'Neill

Most recent Opinions by Justice O'Neill

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)  

State of Texas v. Brown, No. 05-0236 (Tex. Aug. 29, 2008)(Johnson)
(condemnation, fees to landowner reversed))
Justice
O'Neill delivered an opinion concurring in part and dissenting in part.

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.

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

O'Neill dissents (partially) in sect children custody case
In re TDFPS (CPS), No.  08-0391 (Tex. May 29, 2008)(per curiam) (CPS case against FLDS sect)
Justice
O'Neill delivered an opinion concurring in part and dissenting in part, in which Justice Johnson and
Justice Willett joined.
In re Texas DFPS (CPS), No. 08-0403 (Tex. May 29, 2008)(per curiam) (CPS mass custody case)
Justice O'Neill, joined by Justice Johnson and Justice Willett, concurring in part and dissenting in part for
the reasons explained in Justice O'Neill's separate opinion in No. 08-0391.
Higgings v. Randall County Sheriff's Office (Higgins II), No. 06-0917 (Tex. May 16, 2008) (sufficiency of
affidavit of inablility to pre pay costs of appeal, IFP) (Opinion by
Justice Harriet O'Neill)
Justice
Green delivered a dissenting opinion, in which Justice Wainwright and Justice Willett joined.
(Justice Johnson not sitting)

Justice O'Neill dissents in case in which health care provider was held liable for discharging
suicidal patient
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.)
- consolidated with -  
Pettit, D.O. v. Dowell (Tex. May 23, 2008)
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.

O'Neill concurred in Perry Homes v. Cull (Tex May 2, 2008)(court rules home-owners waived right to
arbitrate dispute with builder over
defective construction, arbitration law)

Mission Consolidated ISD v. Garcia, No. 05-0734 (Tex. Mar. 28, 2008)(Opinion by Justice Harriet 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 SW3d 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.

Ownes & 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.

Pruett v. Harris County Bail Bond Board, et al, No. 05-0283 (Tex. Mar. 28, 2008)(Justice 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.

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)

AIC Management v. Crews, No. 05-0270 (Tex. Jan 25, 2008)(Opinion by Justice Harriet O’Neill)
(
condemnation, 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 ___, 02-03-05)

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)
The Court reverses the court of appeals' judgment and remands the case to the trial court.
Justice  In this case, we must decide whether an insured’s failure to timely notify its insurer of a claim
defeats coverage under the policy if the insurer was not prejudiced by the delay. We hold, as we did in
Hernandez v. Gulf Group Lloyds, that an immaterial breach does not deprive the insurer of the benefit of
the bargain and thus cannot relieve the insurer of the contractual coverage obligation. 875 S.W.2d 691,
692 (Tex. 1994). Accordingly, we reverse the court of appeals’ judgment, render judgment that the insurer
could not deny coverage because of untimely notice, and remand the remaining issues to the trial court.
O'Neill delivered the opinion of the Court.
Justice Willett filed a concurring opinion.

2007 Opinions Written by Justice Harriet O'Neill

Morales v. Liberty Mutual Ins. Co., No. 05-0754 (Tex. Dec. 8, 2007)(Opinion by Justice O'Neill)
(
worker's comp. determination of employment status for worker's compensation eligibility purposes,
employee, course and scope, independent contractors, subscribers and nonscubscribers)
MARGARITA MORALES, INDIVIDUALLY AND AS NEXT FRIEND OF PAULETTE MORALES AND LAURA
MORALES, MINOR CHILDREN OF GUADALUPE D. MORALES, DECEASED v. LIBERTY MUTUAL
INSURANCE COMPANY AND CONTINENTAL CASUALTY COMPANY; from El Paso County; 8th district (08-
04-00135-CV, 169 S.W.3d 485, 07/28/05)   
The Court reverses the court of appeals' judgment and remands the case to the trial court.

In Re Pirelli Tire, LLC, No. 04-1129 (Tex. Nov. 2, 2007)(Justice O'Neil)(plurality opinion)(inconvenient
forum)
IN RE PIRELLI TIRE, L.L.C.; from Cameron County; 13th district (13-04-00584-CV, ___ S.W.3d ___, 12-03-
04)
motion to strike real parties in interest's letter briefing dismissed as moot
The Court conditionally grants the petition for writ of mandamus.
Justice O’Neill announced the Court’s disposition and delivered an opinion joined by Justice Hecht, Justice
Brister, and Justice Medina.
Justice
Willett delivered a concurring opinion joined as to Part I by Justice Wainwright.  
Justice
Johnson delivered a dissenting opinion, in which Chief Justice Jefferson joined.

In Interest of J.A.J., No. 07-0511 (Tex. Nov. 2, 2007)(O'Neill)(termination of parental rights, award of
conservatorship to CPS not assigned as error in appeal)
IN THE INTEREST OF J.A.J., A CHILD; from Harris County; 14th district (14-04-01031-CV, 225 SW3d 621,
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 affirms in part and reverses in part the court of appeals' judgment and
renders judgment.
Justice O'Neill delivered the opinion of the Court.

Westbrook v. Penley, No. 04-0838 (Tex. Jun. 29, 2007)(Justice O’Neill)(professional negligence tort
against paster; ecclesiastical matter not subject to civil court jurisdiction as a matter of constitutional law)
C.L. Westbrook, Jr. V. Peggy Lee Penley; from Tarrant County; 2nd district (02-02-00260-CV, 146 S.W.3d
220, 05/2/2004)
The Court reverses the court of appeals' judgment and dismisses the case for want of jurisdiction.
Justice O'Neill authored the opinion of the Court

In Re Christus Spohn Hospital, No. 04-0914 (Tex. Apr. 27, 2007)(Justice Harriet O'Neill)
(mandamus)(evidence, production, privilege, snap-back provision)

Justice O'Neill Finds State Immune to Claim for Unauthorised Use of Patented Technology under
a Takings Theory
         
State of Texas v. Holland, No. 05-0292 (Tex. Apr. 20, 2007)(Justice O'Neill)(contract dispute, royalties,
sovereign immunity)
In this case, the State presented uncontroverted evidence that Holland voluntarily provided, and the State
accepted, his filtration process along with his design assistance pursuant to contractual agreements with
SRP and PPP. Whether or not a contract may be implied between the State and Holland individually, the
State accepted Holland’s product and his services under color of its contracts with SRP and PPP, and not
pursuant to its powers of eminent domain. Any claim for patent infringement Holland might have would be
against SRP and PPP, not the State as a mere party to a contract with them. Lacking the requisite intent to
take Holland’s patented process under its eminent-domain powers, the State is not subject to liability under
article I, section 17 of the Texas Constitution. Accordingly, the trial court erred in denying the State’s plea
to the jurisdiction.

Court Considers Out-of-State Defendant's Challenge to Being Sued in Texas over Grand Canyon
River Rafting Death
Moki Mac River Expeditions v. Drugg, No. 04-0432 (Tex. Mar. 2, 2007) (By Justice Harriet O'Neill)
[in personam jurisdiction, long-arm jurisdiction, special appearance, foreign defendant]
A Texas court may assert specific jurisdiction over an out-of-state defendant if the defendant’s contact with
this state is purposeful and the injury arises from or relates to those contacts. In this wrongful-death case
against a Utah-based river-rafting outfitter, the defendant contends the plaintiff’s death on a Grand
Canyon hiking trail did not arise from or relate to its in-state commercial activities so as to establish specific
jurisdiction over it in Texas. We agree. Accordingly, we reverse and remand the case to the court of
appeals to determine whether general jurisdiction exists.
Justice
Phil Johnson dissented in Moki Mac River Expedition v. Drugg
The court of appeals performed the “fair play and substantial justice” analysis which the Supreme Court
has indicated both protects a non resident from improper exercise of jurisdiction by a forum, and yet might
allow a lesser showing for the exercise of jurisdiction over a defendant who purposefully directs activities
toward the forum. See Burger King, 471 U.S. at 477-78 (noting considerations which sometimes “serve to
establish the reasonableness of jurisdiction upon a lesser showing of minimum contacts than would
otherwise be required”). I agree with the court of appeals’ analysis and determination that the exercise of
specific jurisdiction over Moki Mac by Texas would not offend traditional notions of fair play and substantial
justice. ___ S.W.3d ___. I would affirm the judgment of the court of appeals. -
Phil Johnson, Justice  

Separate Opinions by Justice Harriet O'Neill (Dissents and Concurrences)

k
Justice O'Neill delivered a concurring opinion in In Re Autonation, Inc.   In Re Autonation, Inc., No. 05-0311
(Tex. Jun. 29, 2007)(Opinion by Justice Willett)(contractual forum selection clause enforced, mandamus
granted)(covenant not to compete, noncompete)
In re Autonation, Inc. and Auto M. Imports North, Ltd. D/b/a Mercedes-Benz of Houston-North; from Harris
County; 14th district (14-05-00362 CV, ___ S.W.3d ___, 04/15/2005)
stay order issued December 5, 2005, lifted
The Court conditionally grants the petition for writ of mandamus.
Justice Willett delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice
Wainwright, Justice Brister, Justice Medina, Justice Green, and Justice Johnson joined.


Opinion in Dram Show Act Case Withdrawn and Re-Issued
F.F.P. Operating Partners, L.P. v. Duenez, No. 02-0381 (Tex. May 11, 2007)(subst. opinion by Wainwright
(Opinion released Nov. 3, 2006 withdrawn)(Dram Shop Act)
Dissent by Justice Jefferson. Dissent by Justice O'Neill    

Justice O'Neill dissents in arbitration case

Meyer v. WMCO-GP, No. 04-0252, No. 04-0252 (Tex. Dec. 22, 2006)(Justice Hecht)(arbitration law)
Justice
O'Neill delivered a dissenting opinion in Meyer v. WMCO-GP (nonsignatory)
I also agree with the court of appeals that the terms of the arbitration clause in the purchase and sales
agreement between Bullock and WMCO express an intent to require arbitration of a relatively narrow scope
of disputes – disputes “between the parties to [the] Agreement involving the construction or application of
any of the terms, covenants, or conditions of [the] Agreement . . . .” 126 S.W.3d 313, 319. This language is
considerably narrower than the standard, broad arbitration clause requiring arbitration of “‘[a]ny
controversy or claim arising out of or relating to this contract, or the breach thereof . . . .’” Beckham v.
William Bayley Co., 655 F. Supp. 288, 291 (N.D. Tex. 1987) (quoting Hoellering, Arbitrability of Disputes,
41 Bus. Law. 125 (Nov. 1985) (citing K. Seide, A Dictionary of Arbitration and Its Terms 21 (1970)). The
strong policy favoring arbitration “cannot serve to stretch a contractual clause beyond the scope intended
by the parties.” Id. at 291-92. Under these circumstances, the trial court did not abuse its discretion in
refusing to compel arbitration. I respectfully dissent.

Land Rover U.K. Ltd. v. Hinojosa, No. 04-0794 (Tex. Dec. 15, 2006)(per curiam)(guardian ad litem fee
unreasonable excessive)

Justice O'Neill Dissents in mandamus proceeding stemming for suit seeking termination of
parental rights
In Re Texas Dep't of Family and Protective Services, No. 04-1043 (Tex. Dec. 15, 2006)(Wainwright)
(
termination of parental rights suit, deadlines)
Justice
O'Neill delivered a dissenting opinion
On the dates Higdon and Ludwig filed their mandamus petitions in the court of appeals, August 11 and 12,
2004, respectively, no appeal was then available because the trial court had not yet rendered a final
judgment. I seriously doubt that the Court would question the propriety of mandamus relief if, for example,
the trial court had denied Higdon and Ludwig’s motion to dismiss and issued a six-month continuance.
Further, although the trial court did enter a judgment terminating parental rights and appointing the
Department the children’s managing conservator on August 13th, after the mandamus petition was filed,
the trial court had no power to render any judgment but dismissal under both the court of appeals’ and this
Court’s construction of the Family Code. At this point in the proceedings, it is questionable whether Ludwig
or Higdon will be able to appeal the trial court’s judgment. See Tex. R. App. P. 26.1(b) (notice of appeal in
accelerated appeal must be filed within 20 days after the judgment or order is signed).

This Court has suggested that a party may be excused from pursuing an appellate remedy when a trial
court acts with a “complete lack of authority” in a manner that adversely affects our legal system, or if it
commits an error that is clear and simple to correct. In re Prudential Ins. Co., 148 S.W.3d at 137. In this
case, the Court agrees that the trial court lacked authority to do anything but dismiss the Department’s
action. The error was clear, and the solution straightforward — an order directing the trial court to dismiss
the case. While the overall effect on the legal system of the trial court’s failure to dismiss may not be
widespread, the consequence to the family in this case is deep and potentially irremediable. If the avenue
of appeal proves to be foreclosed in this case, the family will be permanently dissolved even though the
path to review that Ludwig and Higdon chose was entirely appropriate at the time. Under these
circumstances, I would deny the Department’s petition for writ of mandamus.

Land Rover U.K. Ltd. v. Hinojosa, No. 04-0794 (Tex. Dec. 15, 2006)(per curiam)(guardian ad litem fee
unreasonable excessive)

Brookshire Grocery Co. v. Taylor, No. 03-0408 (Tex. Dec. 1, 2006)(Hecht)
Justice
Johnson delivered a concurring opinion om Brookshire Grocery Co.v. Taylor
Justice O'Neill delivered a dissenting opinion, joined by Justice Medina

In Re Palm Harbor Homes, No. 04-0490 (Tex. Jun. 9, 2006)(mandamus)(Justice Johnson)
[arbitration, motion to compel arbitration, arbitration clause, binding, nonbinding, unconscionable]
In Re Palm Harbor Homes, No. 04-0490 (Tex. Jun. 9, 2006)(mandamus)(Concurrence by O'Neill)


2006 Majority Opinions by Justice Harriet O'Neill

Hallco Texas, Inc. v. McMullen County, No. 02-1176 (Tex. Dec. 29, 2006)(Justice Harriet O’Neill)
[zoning power, landfill, water quality, environmental protection, takings claim rejected]
Justice
Hecht delivered a dissenting opinion in Hallco v. McMullen County

Ben-Bolt-Palito Blanco Cons. ISD v. Texas Political Subdivisions, No. 05-0340 (Tex. Dec. 29, 2006)(O’Neill)
[sovereign immunity law, waiver, new statute containing limited waiver, consent to suit,
Tooke progeny]
We agree that the Fund possesses governmental immunity. However, after the court of appeals rendered
its judgment, the Legislature enacted a limited immunity waiver for breach of contract claims against
governmental entities.[1] We conclude that the statutory waiver applies to this insurance-coverage dispute.
Accordingly, we reverse the judgment of the court of appeals.
Justice
Willett delivered a dissenting opinion in Ben-Bolt ISD v. Tex. Pol. Subdivisions  

City of Houston v. Clark, No. 04-0930 (Tex. Jun. 30, 2006)(Justice Harriet O’Neill)
In this case, we must decide whether Chapter 143 of the Local Government Code, known as the Fire
Fighter and Police Officer Civil Service Act, authorizes municipalities to appeal adverse decisions of
independent hearing examiners. We hold that it does. Accordingly, we reverse the court of appeals’
judgment of dismissal and remand the case to that court for consideration of the City of Houston’s appeal.

City of Marshall v. City of Uncertain, No. 03-1111 (Tex. Jun. 9, 2006)(Justice O’Neill)   
[water rights dispute, Commission for Environmental Quality

City of Houston v. Jackson, No. 04-0465 (Tex. Apr. 7, 2006)(Justice O’Neill)    
[sovereign immunity law, cities, firefighter pay]          

Olveda v. Sepulveda, MD, No. 04-0707 (Tex. Mar. 3, 2006)(Dissent from denial of petition for review, by
Justice Harriet O’Neill)

In Re Lumbermens’ Mutual Casualty Co., No. 04-0245 (Tex. Feb 3, 2006)(mandamus)(Justice O’Neill)

Chair King v. GTE Mobilnet of Houston, No. 04-0570 (Tex. Feb. 3, 2006)(Justice O’Neill)         

Also see --->
2006 Texas Supreme Court Per Curiam Opinions | 2007 Per Curiam Opinions |
Opinions by fellow 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 |


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