Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of July 27, 2009

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

Verhoev v. Progressive County Mut. Ins. Co.,    No. 02-08-00055-CV    (July 30, 2009)   (Gardner, J., joined by Dixon W. Holman, J. (Senior Justice, Retired, Sitting by Assignment); Walker, J., dissents and concurs with opinion). [Note: These Opinions were withdrawn December 3, 2009.]

Held:   When insurer issued auto liability and uninsured/underinsured motorist policy to former husband and wife, policy listed both former husband and wife as named insureds, and former wife was injured while riding in former husband’s insured vehicle, former husband’s liability coverage was limited to statutory minimum of $20,000, but former wife was entitled to UM/UIM coverage up to the full limit of the policy.

Dissent & Concurrence:    The majority’s analysis and construction of the UM/UIM provision is correct and should apply equally to exclusion C concerning liability under the policy. When the analysis dictated by the law and principles cited by the majority is utilized, exclusion C does not apply to the liability coverage. Thus, the insurer’s obligation under the liability coverage is up to the full limit of the policy, not the $20,000 statutory minimum.

Schriver v. Tex. Dep’t of Transp.,   No. 02-08-00337-CV    (July 30, 2009)   (Cayce, C.J., joined by Walker, J.; Livingston, J., concurs with opinion).  [Note: Both opinions are at the same link in one document.]

Held:    Waiver of sovereign immunity for a breach of contract claim predicated on an underlying eminent domain action requires the existence of an agreement by which the governmental entity contracted to acquire property for a public purpose. When negotiations to acquire property do not result in the formation of a contract, there is no waiver of immunity.

Concurrence:   If the parties to this suit had completed their statutorily required settlement negotiations and had properly formed a contract, thus avoiding Appellee’s liability in an eminent domain proceeding, for which immunity is waived, Appellee would have no immunity for a breach of that contract under the rationale expressed in City of Carrollton v. Singer, 232 S.W.3d 790, 799–800 (Tex. App.—Fort Worth 2007, pet. denied).

In re Cindy Rhodes,   No. 02-09-00043-CV    (July 28, 2009)   (Gardner, J. joined by Dauphinot and Meier, JJ.).

Held:    Because Real Party in Interest’s affidavit conclusively establishes that he acquired actual knowledge of the judgment fourteen days after it was signed, he cannot invoke rule 306a to extend the timetable for filing a motion for new trial.

City of Corinth v. NuRock Dev., Inc.,   No. 02-07-00422-CV    (July 30, 2009)   (Cayce, C.J., joined by Dixon W. Holman, J. (Senior Justice, Retired, Sitting by Assignment); Livingston, J., concurs with opinion).  [Note: Both opinions are at the same link in one document.]

Held:    Appellant was not immune under the Eleventh Amendment from federal Fair Housing Act claim; therefore, under the Texas Supreme Court’s plurality opinion in Texas A & M University–Kingsville v. Lawson, 87 S.W.3d 518 (Tex. 2002), and this court’s opinion in City of Carrollton v. Singer, 232 S.W.3d 790 (Tex. App.—Fort Worth 2007, pet. denied), Appellant’s settlement of the claim did not immunize it from suit brought by Appellees for breach of the settlement agreement. However, Appellees did not present a valid takings claim because improvements to the road at issue were accepted under the settlement agreement, not under Appellant’s eminent domain powers. Moreover, Appellant did not waive immunity under the Declaratory Judgments Act because it sought construction of the settlement agreement and not a statute or ordinance. Finally, Appellees’ claim for injunctive relief is not ripe because the possibility of future arbitrary and capricious conduct is too remote to support a claim for permanent injunction.

Concurrence:    Chapter 271 of the local government code, which retroactively applies to certain contracts involving governmental entities to waive those entities’ immunity from suit, may be applicable in the trial court upon remand. Also, a government entity should not totally regain immunity that it has lost through filing affirmative claims by simply dismissing or nonsuiting those claims. Next, the majority’s opinion should not be interpreted to alter the court’s decision in City of Carrollton v. Singer, 232 S.W.3d 790, 800 (Tex. App.—Fort Worth 2007, pet. denied). Finally, although Appellees’ claim for injunctive relief is ripe because Appellees’ pleadings show than an injury is likely to occur in the future, that claim should be dismissed because Appellees sued the wrong governmental defendant for the claim.

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