With today’s order list, the Texas Supreme Court issued 11 decisions.
A glance at the list of cases shows a strong medical theme — and, indeed, nine are medical-malpractice cases. In Lewis v. Funderburk, No. 06-0518, the Court decided a key question about interlocutory appeals of inadequate expert reports that had divided the courts of appeals. Justice Brister wrote for the majority opinion for eight Justices.
The Court concluded that the courts of appeals do have interlocutory appellate jurisdiction to review claims made seeking dismissal and attorneys fees for case involving an inadequate (and not merely an absent) expert report. For these purposes, the Court held, an expert report that was inadequate was one that had “not been served” and thus could trigger a fee award.
The Court rejected, however, the doctor’s request that the claim be dismissed outright because the plaintiff had tried to change expert witnesses. The Court held that the statute permits plaintiffs to “chang[e] experts midstream” in the course of replacing an inadequate expert report with an adequate one. (( Separate concurring opinions were also filed by Justice O’Neill, who joined the majority only in part, and by Justice Willett. The two concurring opinions sparred over the effect of a trial court’s extension of time to file a corrected expert report. That question remains open, however, because the majority concluded that it had not been raised by this petitioner. ))
With the core jurisdictional question cleared up, the Court was able to issue eight per curiam reversals in cases raising that same issue. Those were:
From Houston (First Court): Danos v. Rittger, No. 07-0312
From Forth Worth: Moore v. Gatica, No. 07‑0094; Diaz-Rohena v. Melton, No. 07‑0173; Center for Neurological Disorders v. George, No. 07‑0174; Collini v. Pustejovsky, No. 07‑0227; Graham Oaks Care Center, Inc. v. Farabee, No. 07‑0228; and Metwest, Inc. v. Rodriguez, No. 07‑0422.
From Waco: Hill Regional Hospital v. Runnels, No. 07‑0368
Attorneys Fees for Express Warranty Claims Under the UCC
One medical-sounding case actually concerned contract attorneys fees. In Medical City Dallas v. Carlisle Corporation, No. 06-0660, the Court held that the Texas statute authorizing attorneys fees to be awarded for claims of the breach of an oral or written contract, Tex. Civ. Prac. & Rem. Code § 38.01(8), includes claims of the breach of an express warranty. The warranty action in this case arose under the UCC. The Court first concluded that the UCC’s silence on the question of attorneys fees did not prevent another state statute from authorizing those fees. The Court then concluded that Section 38.01 was broad enough to include claims for express warranty, consistent with the Court’s earlier statement (but not holding) to that effect in PPG Industries, Inc. v. JMB/Houston Center Partners L.P., 146 S.W.3d 79 (Tex. 2004).
Invoking the Right To Counsel for Juvenile Offenders; Conflicts Jurisdiction
The other decision in today’s order list is In re H.V., No. 06-0005, a juvenile-justice case about the right to counsel. The Court first had to clear an appellate-procedure question about the bounds of its interlocutory jurisdiction under a 2003 statute relating to the suppression of evidence. The Court concluded that the Legislature had failed to broaden the Court’s interlocutory appellate jurisdiction and thus, in order to decide this case, it would have to find normal conflicts jurisdiction.
That presented a problem because the statute for conflicts jurisdiction contemplates a conflict between courts of appeals or between the court of appeals and the Supreme Court — it does not mention conflicts with decision of the Court of Criminal Appeals, which handles non-juevenile criminal matters. The Court thus had to look for lower-court decisions rather than being able to look directly at the Court of Criminal Appeals decisions for a conflict. (( The Court seems to suggest that the Legislature may want to address this in the next legislative session. It’s hard to argue with that. ))
And the Court was able to find a conflict by using the broader definition of “conflicts jurisdiction” that were enacted in 2003 as part of a broader tort-reform initiative. Loosely employing that framework, the Court concluded that there was uncertainty in the courts of appeals over this question. The Court seemed to make clear, however, that its mode of reasoning was limited to juvenile-justice cases — that it turned on the presence of double-jeopardy (which would prevent retrial of certain questions), on the unique nature of criminal cases (especially, as the Court notes, about murder), and the effect that uncertainty may have on ongoing criminal investigations. In other words, the Court seems to be saying, don’t try to cite this “conflicts jurisdiction” precedent in a civil context.
The Court was divided 5-4, however, over the resolution of the criminal-procedure question. The circumstances are described here:
When asked whether he wanted to waive his rights and speak to police, H.V. said he wanted to speak to his mother, but was told he could not. H.V. then responded that he “wanted his mother to ask for an attorney.” When the magistrate responded that only he (not his mother) could ask for an attorney, H.V. replied, “But, I’m only sixteen.” The magistrate then reiterated that only he could ask for an attorney, after which H.V. eventually said he would talk to the police. In a second written statement, H.V. claimed Oltmanns accidentally shot himself with H.V.’s gun, after which H.V. placed him in a bathtub where he bled to death. Based on a drawing by H.V., police recovered the gun from a storm sewer close to H.V.’s home.
Finding that H.V. had invoked his right to counsel during custodial interrogation, the trial court suppressed both H.V.’s second written statement and the gun, and the court of appeals affirmed. The State brings this appeal…
Justice Brister wrote for a five-Justice majority, joined by Justice O’Neill, Justice Medina, Justice Johnson, and Justice Willett. The Court examined the law about how to tell if a suspect has invoked his right to counsel and posed the question whether a juvenile’s age was a proper factor to consider in determining if the request for counsel has been sufficiently concrete. The Court did not answer that question, however, because it concluded that H.V.’s statement (he “wanted his mother to ask for an attorney”) was sufficiently definite to trigger constitutional protections. In that regard, the Court affirmed the court of appeals’s conclusion. But the Court disagreed with the court of appeals’s conclusion that certain physical evidence (the gun) should have been suppressed as “fruit of the poisonous tree” from that interrogation. The Court concluded that the gun should, nonetheless, have been admitted, and the Court reversed that portion of the suppression order.
Chief Justice Jefferson wrote an opinion concurring in part and dissenting in part that was joined in full by Justices Wainwright and Justice Green, and joined in part by Justice Hecht. These Justices would have held that age is a proper factor to consider — but that even taking H.V.’s age into account, his statement was not sufficiently definite to trigger the right to counsel. Accordingly, the dissent would have reversed the suppression order and permitted H.V.’s subsequent statements to be admitted against him.