Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of October 26, 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.

Barber v. Dean,   No. 02-07-00353-CV    (Oct. 29, 2009)   (Meier, J., joined by Cayce, C.J., and Livingston, J.).

Held:   With the exception of the trial court’s order sustaining CTSG’s objection to Dr. Wagner’s qualifications to render an expert opinion as to CTSG’s direct liability and dismissing Appellants’ direct liability claims against CTSG, the trial court abused its discretion by granting Appellees’ objections to Dr. Wagner’s report and dismissing Appellants’ claims against Appellees. Dr. Wagner’s report is adequate to demonstrate his qualifications to render an expert opinion as to whether Appellees departed from accepted standards of medical care regarding the positioning and padding of Malcolm’s arm and to represent an objective good faith effort to comply with the definition of an expert report.

Aviall Servs., Inc. v. Tarrant Appraisal Dist. & Tarrant Appraisal Review Bd.,   No. 02-08-00199-CV    (Oct. 29, 2009)   (Gardner, J., joined by Cayce, C.J., and Livingston, J.).

Held:   Aviation parts shipped to a federal enclave located within the geographical boundaries of Texas were not transported “outside this State” for purposes of the freeport ad valorem tax exemption as allowed by the Constitution of the State of Texas and enabling legislation.

Playoff Corp. v. Blackwell,   No. 02-06-00249-CV    (Oct. 29, 2009)   (Gardner, J., joined by Dauphinot and McCoy, JJ.) (op. on reh’g).

Held:   The court denied Blackwell’s motion for rehearing and/or motion for en banc reconsideration. Although the term “fair market value” is ordinarily sufficiently definite to render a contract containing the term enforceable, an alleged oral employment contract calling for payment of 25% of employer corporation’s fair market value to employee upon termination of employment was unenforceably indefinite because the uncontroverted evidence showed that the parties contemplated further negotiations and a future agreement that would define the method of calculating fair market value. Thus, the trial court did not err by granting a take-nothing judgment notwithstanding the verdict on employee’s breach of contract claim. The trial court also did not err by denying the defendants’ motion for attorney’s fees under the Texas Commission on Human Rights Act.

Fort Worth Transp. Auth. and McDonald Transit, Inc. v. Thomas,   No. 02-08-00236-CV    (Oct. 29, 2009)   (Gardner, J., joined by Dauphinot, J.; Livingston, J., dissents with opinion).  [Note: Both opinions are at the same link in one document.]

Held:   The trial court correctly granted Appellee’s motion for summary judgment because Appellee did not fail to exhaust his contractual remedies and Appellants terminated Appellee’s employment in violation of the collective bargaining agreement. The collective bargaining agreement did not require Appellee to demand arbitration, and Appellee complied with the collective bargaining agreement by proceeding through all three steps of the collective bargaining agreement’s grievance process. Also, the collective bargaining agreement and employee handbook, considered together, indicate the parties intended to exclude FMLA leave from the definition of absence under the collective bargaining agreement. Thus, excluding Appellee’s FMLA leave, Appellee had not been absent from work for more than one year at the time Appellants terminated Appellee’s employment.

Dissent:    The majority incorrectly holds that a unilateral employee handbook may alter a collective bargaining agreement (CBA) and serve as the basis for Appellee’s breach of contract claim despite (1) explicit language in the handbook and the CBA establishing that the handbook cannot create contractual rights and signaling the superiority of the CBA’s provisions, (2) precedent from this court establishing that employee handbooks do not create implied contractual obligations, (3) precedent from this court holding that effect must be given to all contractual provisions so that none are rendered meaningless, and (4) inherent difficulties that the majority’s decision creates in interpreting and executing the termination provision of the CBA. Because the CBA justified Appellee’s termination from employment since he was undisputedly absent “from work for any reason other than military leave for a period of more than one (1) year,” the trial court’s order granting Appellee’s summary judgment motion should be reversed.

Cox v. Waste Mgmt. of Tex., Inc.,   No. 02-08-00446-CV    (Oct. 29, 2009)   (Livingston, J., joined by McCoy and Meier, JJ.).

Held:   The trial court did not err by granting Waste Management’s summary judgment motion on Appellant’s claims under chapter 21 of the labor code for the following reasons: (1) the law precludes Appellant’s quid pro quo sexual harassment claim because he did not suffer any tangible employment action, (2) Waste Management conclusively proved its affirmative defense to Appellant’s hostile work environment sexual harassment claim, and (3) the law precludes Appellant’s retaliation claim because Waste Management did not take an adverse employment action against him. The trial court also did not err by granting Waste Management’s summary judgment motions on Appellant’s other claims because (1) as a matter of law, the summary judgment evidence cannot support Appellant’s assault claim, and (2) for various reasons, Appellant did not adequately challenge the grounds for summary judgment granted against his negligent retention or supervision claim or his intentional infliction of emotional distress claim.

Speegle v. Harris Methodist Health Sys.,   No. 02-08-00228-CV    (Oct. 29, 2009)   (per curiam). [Note: This Opinion was withdrawn December 17, 2009.]]

Held:    Under federal law, hospital is not required to seek payment for medical services from Medicare when the Medicare beneficiary’s hospital bill is covered by liability insurance. In such a case, Medicare benefits are secondary to benefits payable by a third party and hospital is entitled to lien on Medicare beneficiary’s claim against the third party under chapter 55 of the Texas Property Code. To the extent section 146.002 of the Texas Civil Practice and Remedies Code requires hospitals to bill Medicare when it is a secondary payor, it is preempted by federal law.

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