2008 Opinions by Justice Wainwright (including concurrences, dissents)

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)
Brister delivered a concurring opinion, in which Justice Medina joined.
Green delivered an opinion concurring in part and dissenting in part, in which Justice Hecht joined.

Justice Wainwright writes opinion denying public employee right to sue under the
Texas Whistleblower Act; says plaintiff should have filed under another statute
City of Waco, Texas v. Lopez, No. 06-0089 (Tex. July 11, 2008)(Opinion by Justice Wainwright)
public employment)(Retaliation claim should have been brought under TCHRA rather than Whistleblower
Act, exclusive remedy)

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)
Wainwright delivered an opinion concurring in part and dissenting in part.
O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson and Justice Medina joined.

In re Team Rocket, LP, No. 06-0414 (Tex. May 23, 3008)(Opinion by Justice Green)(mandamus granted)
(mandamus granted to enforce first transfer of venue, nonsuit and refiling in third county disapproved)
Wainwright delivered a concurring opinion, in which Chief Justice Jefferson and Justice O'Neill

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)
Wainwright delivered a dissenting opinion, in which Chief Justice Jefferson and Justice O'Neill

Wainright okays new judicial approach to allow employers to have employees work for
free - thwart their suits for unpaid wages.
New opinion issued to justify denying claim for unpaid
wages in court with novel theory of res judicata that accords preclusive effect to commission ruling (rather
than to court of competent jurisdiction) and holds that a common law claim is barred even though the
agency did not have jurisdiction to entertain it and dismissed administrative claim as untimely. It did not
matter that the breach of contract claim had a four-year statute of limitations, and that limitations had not
run on that claim.
Igal v. Brightstar Information Tech Group. Inc., No. 04-0931(Tex. May 2, 2008) (substituted opinion by
Justice Wainwright) )(substituted opinion by Justice Dale Wainwright)
Dallas County; 11th district (11-03-00099-CV, 140 S.W.3d 820, 06-30-04)
The Court's opinion of December 7, 2007 is withdrawn and the opinion of this date is substituted.
The dissenting opinion by Justice Brister and the judgment, issued December 7, 2007, remain in place.

Wainwright writes opinion expanding doctors' rights to go after patients who bring
malpractice suits
Villafani v. Trejo, MD, No. 06-0501 (Tex. Apr. 18, 2008)(Wainwright) (medical malpractice suits, HCLC,
denial of sanctions, effect of nonsuit on defendant's right to appeal denial of motion for sanctions)  
JUAN MARIO VILLAFANI, M.D. v. ADELA TREJO; from Cameron County; 13th district (13-04-00449-CV,
___ S.W.3d ___, 10-06-05)
The Court reverses the court of appeals' judgment and remands the case to that court.
Justice Wainwright 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)
(10-04-00298-CV, 183 S.W.3d 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.
O'Neill delivered a dissenting opinion, in which Justice Medina joined.

2007 Opinions Written by Justice Dale Wainwright   

Wainright bars worker's court-filed claim for unpaid wages based on prior agency ruling,
Brister writes a strongly worded dissent
Igal v. Brightstar Information Technology Group, Inc. 04-0931 (Tex. Dec. 8, 2007)(Wainwright)
employment law, Texas Payday Act, res judicata based on commission's dismissal of statutory claim)
Dallas County; 11th district (11-03-00099-CV, 140 S.W.3d 820, 06/30/04)
The Court affirms the court of appeals' judgment.
Justice Wainwright delivered the opinion of the Court as to Parts I, II, III, IV.A, IV.B.2, and V, in which
Justice Green, Justice Johnson, Justice Willett, and Justice McCoy joined, and an opinion as to Part IV.B.
1, in which Justice Green, Justice Johnson, and Justice Willett joined.
Brister delivered a dissenting opinion, in which Chief Justice Jefferson, Justice O'Neill, and Justice
Medina joined.
(Justice Bob McCoy sitting by appointment pursuant to section 22.005 of the Texas Government Code)
(Justice Hecht not sitting)

Court answers certified question from Fifth Circuit involving dispute between two insurers  
Mid-Continent Ins. Co. v. Liberty Mutual Ins. Co., No. 05-0261 (Tex. Oct. 12, 2007)(Wainwright)
(apportionment of settlement amount between insurers, subrogation, contribution - certified question from
the Fifth Circuit)
The Court answers the questions certified by the United States Court of Appeals for the Fifth Circuit.
Justice Wainwright delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht,
Justice O'Neill, Justice Brister, Justice Medina, Justice Green, Justice Johnson, and Justice Willett joined.
Justice Willett delivered a concurring opinion.

Attorney's fee claim remanded
A.G. Edwards & Sons, Inc. v. Beyer., No. 05-0580 (Tex. Sep. 28, 2007)(Wainwright)(financial services,
breach of contract, joint account with right of survivorship, probate code, attorney's fees)
A.G. EDWARDS & SONS, INC. v. MARIA ALICIA BEYER; from El Paso County; 8th district (08-03-00495-
CV, 170 S.W.3d 684, 06/30/05)
The Court affirms the court of appeals' judgment in part, reverses in part, and remands the case to the
trial court. Justice Wainwright delivered the opinion of the Court.

New Opinion Issued in Dram Shop Act Case - 2006 Opinion Withdrawn
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 Jefferson. Dissent by O'Neill    

Attorney Committed Pleading Abuse in Medical Malpractice Case, but $50,000 Sanction Was Not
Supported By the Evidence; Case Remanded for Reconsideration of Amount of Penalty
Low v. Henry, No. 04-0452 (Tex. Apr. 20, 2007)(Wainwright)
[HCLC, Rule 13, sanctions for filing false baseless claims, nonsuit, notice and opportunity to respond]  
Because the attorney who filed the petition in this case obtained and directed the review of evidence that
disproved some of the allegations pled against some of the defendants, the trial court correctly found that
the attorney violated Chapter 10. However, we hold that the trial court abused its discretion in not
providing a sufficient basis to support the imposition of a $50,000 penalty. We reverse the court of
appeals’ judgment and remand the case to the trial court for proceedings consistent with this opinion.

Citizens Ins. Co. of America v. Daccach, No. 03-0505 (Tex. Mar 2, 2007)(Justice Wainwright)
[insurance, class certification, choice of law]
As part of a trial court’s rigorous analysis for certification of a Rule 42(b)(3) class, a trial court must
assess all of Rule 42’s requirements with awareness of res judicata’s preclusive effect on abandoned
claims. See Bernal, 22 S.W.3d at 435. Although we hold that res judicata principles are applicable in class
suits and could bar claims abandoned by the class representative, we do not dictate how plaintiffs should
structure their case or which legitimate legal strategies they will pursue. We simply note that legal
consequences attach to tactical and strategic decisions in class actions as in other lawsuits. While it is not
per se inappropriate to abandon claims or for the trial court to certify a specific-issue class, the
requirements of class certification must still be met. As we have cautioned above, a class representative’s
abandonment of claims can affect the class representative’s ability to satisfy these requirements. Here the
trial court failed to evaluate Rule 42’s prerequisites in light of the claims abandoned by the class
representative. Therefore, we reverse the court of appeal’s affirmance of the trial court’s class certification
order, decertify the class, and remand the case to the trial court for further proceedings consistent with
this opinion. Tex. R. App. P. 60.2(d).
Dissent by Chief Justice Jefferson
In support of his writing, Justice Wainwright relies on language in Marmon v. Mustang Aviation, Inc., a case
we decided a year before the Restatement (Second) of Conflict of Laws was approved for publication. See
Restatement (Second) of Conflict of Laws, Introduction (1971); Marmon v. Mustang Aviation, Inc., 430 S.W.
2d 182 (Tex. 1968). But the second Restatement embodied a major shift in conflict-of-law analysis,
abandoning “dogma” in favor the most significant relationship test and the factors relevant thereto
outlined in section 6(2). See Restatement (Second) of Conflict of Laws, Introduction. The Restatement
makes clear that these factors form the basis for courts’ choice-of-law determinations, “absent a binding
statutory mandate.” Id. The TSA “in this state” language is a far cry from a binding statutory mandate that
Texas law governs to the exclusion of the laws of the fifty nations from which the class members hale.
I would remand the case for a proper choice-of-law analysis. Because I disagree with the Court’s
treatment of that issue, I respectfully concur in the Court’s judgment but not in section IV of its opinion.

2007 Dissents and Concurrences by Justice Wainwright

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  

2006 Opinions Authored by Justice Dale Wainwright

In Re Texas Dep't of Family and Protective Services (TDPS), No. 04-1043 (Tex. Dec. 15, 2006)
termination of parental rights suit, deadlines)
O'Neill delivered a dissenting opinion

F.F.P. Operating Partners v. Duenez, No. 02-0381 (Tex. Nov. 3, 2006)(superseded opinion by Justice
Wainwright) [Dram Shop Act, intoxication, negligence, proportionate responsibility]
Chief Justice
Jefferson delivered a dissenting opinion
Justice O'Neill delivered a dissenting opinion  

Thomas v. Long, No. 03-0204 (Tex. Apr. 21, 2006)(Justice Wainwright)
(interlocutory appeal, ILA, summary judgment vs. plea to the jurisdiction)

Note: Justice Wainright also wrote and joined a number of dissenting opinions in 2006
2008 Texas Supreme Court Election Contest
J. Dale Wainwright vs. Sam Houston


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     Republican Incumbent Dale Wainwright vs. Democrat Sam Houston

2008 Re-Election Campaign. Justice J. Dale Wainwright occupies position 7 on the Court. He is a
Republican. His term expires in 2008. Dallas attorney
Baltasar D. Cruz (link to campaign blog) and
Houston Attorney
Sam Houston aka Samuel A. Houston (link to campaign web site) sought the Democratic
nomination to challenge Justice Dale Wainright in the 2008 general election. Sam Houston won the
primary contest with 1,128,063 votes over Cruz, who garnered 890,334. Incumbent Wainright (
web site) did not draw a challenger in the Republican primary. Finding fault with Wainwright's productivity
on the court, the
Dallas Morning News has endorsed Wainwright's Democratic opponent in the general
election contest. Also see -->
Web page on Texas Appellate Judicial Campaigns and Elections | Texas  
Supreme Court Opinion Production - Totals by Judge   

Candidates' Answers to Questions Posed by the League of Women Voters (2008 Voter Guide)
Recent Texas Supreme Court Opinions
by Justice J. Dale Wainwright
Republican Incumbent
Dale Wainwright
Democratic Challenger
Sam Houston
Please describe the training and experience that qualify you for this
office? (50 words)
I am the incumbent seeking reelection for
Texas Supreme Court, Place 7, and I have an
abiding faith in America=s values. I am the
experienced candidate having served over
five years on the high Court, almost four years
as a trial judge, and over a decade in private
practice before ///
Practiced law in Texas since graduating
Baylor Law School in 1987. Tried dozens of
cases to verdict; handled appeals in Courts of
Appeals and the Texas Supreme Court. Board
certified, personal injury trial law and civil
trial advocacy. Member, American Board of
Trial Advocates. Consistently rated AV by
Martindale Hubbell.
What does the term “activist judge” mean to you? Does this term
affect the public’s perception of the judiciary? Please explain (75
A non-activist judicial philosophy applies the
original intent of constitutional provisions and
the expressed intent of the Legislature in
deciding cases. This principled application of
the law, as written, is consistent with the
constitutional separation of powers doctrine and
promotes fairness and predictability in the law.
On the other hand, an activist judge decides
cases in a manner that improperly changes the
written law to effect his own personal or political
agenda. The public recognizes ///
An activist judge is one who places his or her
own feelings about a case over what the law
dictates. When judges decide cases based
on their personal beliefs instead of by proper
application of the law, trust in the legal system
is eroded. This is particularly true when
we have partisan elections requiring large
amounts of money for elections.
What method of selection of judges is most
likely to result in a qualified, diverse, and
independent judiciary? (75 words)
The Texas Constitution requires the election
of judges. There are concerns with electing
judges: fundraising, insufficient information
among the electorate on judicial candidates
and perceived political pressure. We certainly
should improve how we select judges, including
changing how judicial campaigns are
funded and better educating the public on the
experience and qualifications of candidates
for judicial office. Other methods of selecting
judges have pros and cons as well.
In a perfect world, I believe a non-partisan
election would be preferable. However, if the
judicial elections remain partisan, they should
be held on a different date than the general
election. Under the current system, judges
maintain office primarily as a result of party
affiliations and the “up ballot” votes. This
needs to change. Judges should be elected
based on their background and philosophy.
Should a judge or justice recuse himself or herself from cases in
which the participating lawyers, their firms, or parties to the suit have
contributed substantially to the judge’s or justices’ election? Please
explain. (75 words)
Judge must maintain integrity on the bench
and avoid the appearance of impropriety.
Laws and ethical rules seek to enforce this
objective. If a contribution to a jurist impairs
his ability to be fair and impartial, he should
either not accept the contribution or recuse
himself from the contributor’s cases
The increased need for funding has resulted in
a loss of credibility among judges. There is a
perception, at least, that judges side with political
donors as opposed to ruling according
to the law. Further, campaign contributions
and the need to campaign for re-election have
politicized the judicial process to the point that
it is perceived by many to be a biased system
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Chief Justice Wallace B. Jefferson
Justice Nathan L. Hecht
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