For the second day in a row, DP&S was proud to represent clients before the Texas Supreme Court. Dana Levy presented argument in In re Comaneche Turner, a case dealing with whether the deposition of a non-party doctor in a medical malpractice case still requires an expert report as a mandatory prerequisite, as if the non-party was, in fact, a party to the case. You can see Dana’s briefing here, and you can listen to her argument here.
Kirk Pittard presented argument this morning in LaDonna Degan, et al. v. Dallas Police and Fire Pension System Board of Trustees, a case certified to the Texas Supreme Court from the Fifth Circuit Court of Appeals to answer whether certain changes made to the pensioners’ ability to withdraw money from their own accounts violate the Texas Constitution. You can read the briefing here, and you can watch Kirk’s argument here.
Congratulations to Dallas partners Kirk Pittard, Leighton Durham, Thad Spalding, and Rick Thompson for being named “Super Lawyers” once again in the Appellate category by Super Lawyers Magazine, a Thomson Reuters publication, for 2019. Kirk was also named to the “Top 100” list for Dallas/Fort Worth.
Congratulations to DP&S partners Kirk Pittard and Rick Thompson who were recently named “Best Lawyers in America” in Appellate Practice by Best Lawyers magazine. You can see Kirk and Rick’s listing here.
Congratulations to DP&S attorney, Dana Levy, who successfully defended a jury verdict in Houston’s First Court of Appeals! In addition to rejecting the defendant’s many challenges to the jury’s causation and damage findings, Dana also convinced the court of appeals to reject an evidentiary argument regarding the improper admission of liability insurance. You can see Dana’s briefing here and read the opinion here.
Congratulations to Rick Thompson who won an important insurance appraisal case in the Texas Supreme Court. The case, Barbara Techs. Corp. v. State Farm Lloyds, No. 17-0640, 2019 WL 2710089 (Tex. June 28, 2019), involved hail damage to a business and the appraisal provision in the business’s insurance policy, which is designed to provide the insurer and the insured a process for determining the value of damage to a property. In this case, the Texas Supreme Court rejected an argument that payment of an appraisal award on a rejected claim absolves the insurer of liability under the Texas Prompt Payment of Claims Act, but also emphasized that in order to recover such damages, there will need to be an adjudication of the insurer’s liability on the claim and a prompt payment violation. Importantly, this opinion preserves a cause action under the Act post-appraisal under certain circumstances, and disapproves of cases that have held otherwise. You can read a copy of the opinion here.
Congratulations to Kirk Pittard for his win in The Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, No. 17-0730, 2019 WL 2710037 (Tex. June 28, 2019). The case involved medical malpractice under the Texas Tort Claims Act and whether a public hospital’s immunity from suit is waived if a negligent decision is coupled with use of tangible personal property which proximately causes injury. The Texas Supreme Court decided that, as long as the tangible personal property is a proximate cause of the injury, the Act does not require that the tangible personal property be used in a negligent manner in order for sovereign immunity to be waived. You can read the opinion here.
Congratulations to DP&S associate, Morgan McPheeters, who won an important venue ruling in a Texas Dram Shop Act case in the Dallas Court of Appeals on May 14th. In addition to successfully maintaining venue in Dallas County, the court of appeals also unanimously held–on an issue of first impression–that the plain language of the Dram Shop Act provides a civil cause of action against not just the bar itself, but also an individual employee who overserves an intoxicated person. You can read the opinion here.
Congratulations to Morgan McPheeters who was, once again, named a “Rising Star” in the appellate category by Texas “Super Lawyers” for 2019. You can see Morgan and the other appellate “rising stars” here.
Congratulations to Justin Kaufman and Rosalind Bienvenu who successfully defeated a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction filed by Navistar in New Mexico federal district court. Justin and Roz successfully argued that Navistar, who has been registered to do business in New Mexico since 1966, could be sued there for the wrongful death of Mr. Quinones, who was killed when his vehicle–designed and manufactured by Navistar–rolled over. In doing so, Judge Kenneth Gonzalez re-affirmed that a foreign corporation’s registration to do business in the state constitutes consent to New Mexico personal jurisdiction. You can read Judge Gonzalez’s opinion here, and a Law360.com article about the opinion here.
On Tuesday, Kirk presented argument on behalf of the Respondents in University of Texas M.D. Anderson Cancer Center v. Lance McKenzie and Deborah Diver, No. 17-0730. The case involves a question of sovereign immunity claimed by M.D. Anderson after one of its physicians used a particular chemical fluid–designed to disperse a chemotherapy drug during treatment–that caused the clients’ daughter’s brain to swell and ultimately killed her. You can watch Kirk’s argument here.
On Wednesday, Rick presented argument on behalf of the Petitioner in Barbara Technologies Corp. v. State Farm Lloyds, No. 17-0640. This case involves the Texas Prompt Payment of Claims Act and whether the insurer’s invocation of a policy’s appraisal process and then payment of the appraisal award, but only after forcing the insured to sue its insurer, protects the insurer from penalties–interest and attorney’s fees–under the Act. You can see Rick’s argument here.
DP&S is pleased to announce that Tammy Holt has joined the firm’s Dallas office, effective February 11, 2019. Tammy brings not only significant appellate experience to the firm, but also significant litigation experience, having tried a number of complex commercial cases. Prior to joining DP&S, Tammy was Of Counsel at Rose Walker from 2007 to 2012, and then took over a solo practice in 2013 and formed the Holt Law Firm where she continued her trial and appellate practice.
Congratulations to Jessica Foster, Justin Kaufman, and Roz Bienvenu who, along with trial counsel, Paul Hultin, secured an important ground water victory this week in New Mexico, on behalf of the New Mexico Environmental Law Center and the San Pedro Creek Estates Homeowners’ Association, among many others. The Second Judicial District Court of New Mexico applied the “conservation” element of the state’s ground water permit statute, NMSA 72-12-3, to uphold the Office of the State Engineer’s denial of a major developer’s application to withdraw ground water in the East Mountains near Albuquerque. Judge Shannon Bacon decided the case against the developer and in favor of the neighboring landowners whose wells would be significantly impacted by the proposed development. This decision sets important precedent going forward as to what a developer must demonstrate to show adequate “conservation” in a permit application under New Mexico’s ground water statute. You can read Judge Bacon’s findings and conclusions here. Coverage of the decision by the Albuquerque Journal and the Santa Fe New Mexican can be read here and here, respectively. You can also read all about the trial that led to this important decision here.
This week, Thad Spalding presented argument in the Texas Supreme Court in Rey Garza v. Roxana Regalado Harrison and Joseph Santellana, individually and as representative of the Estate of Jonathen Anthony Santellana, Deceased, a case involving whether an off-duty police officer, working security for his apartment complex, is immune from suit after shooting and killing Jonathen Sanatellan. Thad’s argument can be seen here.
As we say goodbye to our good friend Peter Kelly, who starts his new chapter as a Justice on Houston’s First Court of Appeals today, we start one as well–as Durham, Pittard & Spalding, LLP. Good luck Peter and a very Happy New Year to everyone!
Congratulations to Dean Boyd and Lucas Williams of Attorney Dean Boyd PLLC and KD&P’s Morgan McPheeters on a $250,000 verdict in a car wreck case in Dallas County involving a defendant who decided to avoid gridlocked traffic by cutting over double white lines and through plastic barriers into the HOV lane, causing a wreck that resulted in severe and painful injuries to the plaintiffs. You can read the verdict here.
KD&P is pleased to announce that Rick Thompson joined the firm’s Dallas office as a partner on November 1, 2018. Rick is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization and was formerly a partner at Hankinson, LLP and an Assistant Solicitor General at the Solicitor General’s Office of the Attorney General of Texas. Welcome to the firm, Rick!
KD&P is proud to announce that Dallas associate, Jessica Foster, is featured in the Fall Newsletter published by the Texas A&M University School of Law Natural Resources Systems Program. A copy of the digital newsletter, with an abbreviated version of Jessica’s interview, can be found here. The full interview can be found here. Jessica is a 2016 graduate of the Texas A&M School of Law.
Congratulations to KD&P’s Houston partner, Peter Kelly, who was elected to serve on Houston’s First Court of Appeals yesterday. Peter will take office beginning January 1, 2019, and will make an outstanding justice on the First Court of Appeals. The firm will miss Peter dearly, but the firm’s loss is the Houston area’s gain. We are extremely proud of Peter, wish him great success in this new venture, and look forward to reading his opinions!!
Kelly, Durham & Pittard, LLP is proud to announce that Associate Morgan McPheeters was awarded the Dallas Trial Lawyers Association’s 2018 John Howie Award for her “courageous pursuit of justice in the face of adversity” and ultimate victory at the Texas Supreme Court in State of Texas v. T.S.N. Morgan’s work on this case helped change expunction law to ensure that Texans who have been arrested but not convicted of a crime receive a fresh start. Morgan accepted the award at the DTLA luncheon on October 18, 2018.
Peter argued on Tuesday, Texas Health Presbyterian Hosp. v. D.A. and M.A., regarding whether the heightened standard of proof applicable to emergency care physicians applies to a birth injury case in which the mother was not first seen or treated in the emergency room. Peter’s argument can be seen here.
On Thursday, Kirk argued on behalf of Dallas first-responders in Larry Eddington, et al. v. Dallas Police and Fire Pension System, in a case dealing with whether the first-responders’ retirement benefits are protected by the Texas Constitution. Kirk’s argument can be seen here.
Congratulations to KD&P associate, Morgan McPheeters, who successfully defended a Chapter 74 medical expert report in Houston’s 14th Court of Appeals! The case, Pettway v. Olvera, No. 14-17-00532-CV, 2018 WL 4016949 (Tex. App.—Houston [14th Dist.] Aug. 23, 2018, no pet. h.) (mem. op.), affirms the sufficiency of a report of a a board-certified orthopedic surgeon who offers his opinion as to the standard of care required of an emergency physician prescribing crutches. You can read the opinion here, and a Law360.com article about it here.
Congratulations to Justin Kaufman, who was sworn in today to the State Bar of Texas by our own Kristi Lassiter at our Dallas office. Justin, who heads up KD&P’s Santa Fe office, is now licensed to practice in Texas, New Mexico, and New York.
The first, Garcia v. Wal-Mart Stores Texas, involved a slip-and-fall in which the Court reversed a summary judgment finding that circumstantial creation evidence—evidence that the owner of a premises created the dangerous condition—can support an inference of knowledge on the part of the owner. You can read that opinion here.
The second opinion, Littell v. Houston Indep. Sch. Dist., involved a civil rights case in which, in the Court’s words, “[d]uring a sixth-grade choir class, an assistant principal allegedly ordered a mass, suspicionless strip search of the underwear of twenty-two preteen girls. All agree the search violated the girls’ constitutional rights under Texas and federal law. Even so, the district court dismissed the girls’ lawsuit against the school district for failure to state a claim. We reverse.” The school district argued that it had a constitutionally-qualified policy regarding body searches of students. Peter and Dana argued that having a written policy in a notebook on a shelf is useless unless teachers and administrators are actually trained in those policies. At oral argument, Peter quoted James Brown to make the point: “Sayin’ it and doin’ it is two different things.” The Fifth Circuit rejected the school district’s arguments, allowing all of the claims (1983, state constitutional, and injunctive) to proceed on the merits. This second win garnered Peter “Appellate Lawyer of the Week” honors from Texas Lawyer. You can read the opinion here, and John Council’s Texas Lawyer article about the case here.
Congratulations to KD&P associate Morgan McPheeters who won an important expunction case in the Texas Supreme Court, affirming the right of wrongfully accused people, acquitted of a crime, to have the records related to that acquitted offense expunged from public records. You can read a copy of the opinion here.
Congratulations to Peter Kelly, who won an important case in the Texas Supreme Court this week addressing an employer’s responsibility for its employees’ conduct, convincing the Texas Supreme Court to reverse the El Paso Court of Appeals, clarify the standard for holding employers liable for their employees’ acts, and remanding the case for trial on the merits. You can read the Texas Supreme Court’s opinion in Painter v. Amerimex Drilling I, Ltd. here .
Congratulations to KD&P associate, Jessica Foster, whose report on groundwater rules applicable to communities along the Texas-Mexico border was published today by Texas A&M School of Law! You can see the press release regarding Jessica’s paper here, and you can read the report here.
Congratulations to KD&P Associate, Morgan McPheeters, who was named a “Rising Star” in the Appellate Practice category by Texas “Super Lawyers” for 2018. You can see the short list of Appellate “Rising Stars,” including Morgan, here.
Congratulations to Peter Kelly and Dana Levy who received a great opinion in a medical malpractice case from Houston’s First Court of Appeals in Glenn v. Leal. The case is important because it rejects the application of a “willful and wanton” negligence standard to emergency medical care provided in an obstetrical unit where the patient is not first evaluated in an emergency room. This case also holds that the “paid or incurred” statute and the Affordable Care Act cannot be used in an effort to reduce the recovery of future medical expenses. You can read the opinion here.
KD&P is very proud of its associate, Morgan McPheeters, who presented argument today in the Texas Supreme Court on behalf of the Respondent in State of Texas v. T.S.N., an important case dealing with the expunction rights of the wrongfully accused. You can see Morgan’s briefing here and you can watch Morgan in action here.
Congratulations to KD&P Partner, Kirk Pittard, who won a significant victory in the Texas Supreme Court. In a funeral home negligence case, the supreme court rejected the argument that a contract is required to impose a duty on a funeral home to not mishandle the body of a deceased person. Instead, the court concluded that there exists a common law duty to the deceased’s next of kin. Chief Justice Hecht wrote the opinion for a unanimous court. You can read the opinion in SCI Texas Funeral Services, Inc. v. Nelson here.
KD&P is pleased to announce that Justin Kaufman and Rosalind Bienvenu have joined KD&P’s Santa Fe office, effective February 12, 2018. Justin, formerly a partner with Robins Cloud, joins KD&P as partner and will manage KD&P’s New Mexico practice from the Santa Fe office. Rosalind, formerly an associate with Robins Cloud, joins KD&P as an associate where she will continue to handle civil appeals and strategic litigation support in both state and federal courts.
Congratulations to KD&P Partner, Kirk Pittard, who was part of a trial team including Reid Martin, Jack Walker and Marisa Schouten of Martin Walker, P.C., that obtained a $43 million verdict against East Texas Medical Center in a medical malpractice case in Smith County. You can see the jury verdict here.
2018 begins the same way 2017 ended for KD&P partner, Kirk Pittard–by arguing before the Texas Supreme Court, this time in an important family law case, In the Interest of H.S., in which the Court must decide the statutory standing requirements necessary for a non-parent to petition the court to alter parents’ decision-making authority over their children. Links to the parties’ briefing can be found here, and a link to today’s oral argument can be found here.
Congratulations to KD&P associate, Michael Kawalek, who was named a “Best Lawyer under 40” by D Magazine in the January 2018 issue! Notably, of those named “Best Lawyers,” Michael was one of only three attorneys named in the “Appellate” category.
Congratulations to KD&P associate, Morgan McPheeters, who was nominated and selected to serve as a member of the Advocates Committee Board of Directors for the Texas Trial Lawyers Association (TTLA). TTLA is a professional association that works to protect the 7th Amendment right to trial by jury and empower trial attorneys to best represent their clients—thereby making Texas a better, safer, and healthier place to live and work.
The Advocates Committee is composed of TTLA members who have been in the organization for 10 years or less and provides a means for TTLA’s younger members to participate in and shape TTLA’s objectives. As a Board Member, Morgan will serve a three-year term and will work to further TTLA’s objectives through legislative support, TTLA PAC support and fundraising, membership recruitment, and women’s events.
Last week, KD&P was proud to present argument in two different cases before the Texas Supreme Court. Peter Kelly led off, presenting argument on behalf of the Petitioner in Steven Painter, et al. v. Amerimex Drilling I Ltd., and Kirk Pittard followed, presenting argument on behalf of the Respondent in SCI Texas Funeral Services Inc. v. Cody Nelson. Peter’s argument can be viewed here, and Kirk’s argument can be viewed here.
Congratulations to KDP partner Kirk Pittard for a recent win in the Tyler Court of Appeals. The defendant in this medical malpractice case attempted to postpone a second special setting with a last minute petition for mandamus. After briefing and oral argument, the Tyler Court of Appeals denied the mandamus allowing the case to proceed against East Texas Medical Center. The style of the case is In re East Texas Medical Center, No. 12-17-00183-CV, 2017 WL 4675511 (Tex. App.—Tyler Oct. 18, 2017) (orig. proceeding) and the opinion can be found HERE.
KDP Partner, Leighton Durham, was part of a trial team in an automobile products liability case in which the jury returned a verdict for the plaintiff for $41,935,624.17.
It is our pleasure to announce that KD&P’s partners, Peter Kelly, Kirk Pittard, Leighton Durham, and Thad Spalding, have all been named “Super Lawyers” in the Appellate category by Super Lawyers Magazine, a Thomson Reuters publication, for 2017.
KD&P is pleased to welcome Jessica Foster as its newest associate. Jessica is a 2016 graduate of Texas A&M School of Law in Fort Worth, where she received a full Presidential Scholarship and served as an Articles Editor for the Texas A&M Law Review and as a teacher’s assistant for Legal Research and Writing courses. Jessica also brings significant water law expertise to the firm, having co-authored a publication for Rocky Mountain Mineral Law Foundation explaining Texas and Oklahoma’s laws for acquiring water for oil and gas operations and, more recently, conducting extensive research on transboundary groundwater governance along the Mexico-Texas border, research which is to be published as part of an inaugural report in a new Texas A&M University series integrating science and the law.
Congratulations to Mike Doyle of Doyle LLP and Peter Kelly of Kelly, Durham & Pittard, LLP whose hard work led to a $6.4 million verdict in favor of Dr. Gomez. Mike Doyle was lead trial counsel, and tried a fantastic case against one of the top lawyers in Texas. Peter helped him get there by persuading the Texas Supreme Court to let Dr.Gomez have access to the hospital’s internal communications. You can read a Houston Chronicle story about the case and the verdict here, and John Council wrote about it in the Texas Lawyer.
Congratulations to Steve Laird, Stephen Daniel, Steve Samples and Kirk Pittard who just secured a $6,095,000 verdict in Judge Tapscott’s Court in Dallas today in an 18 wheeler trucking accident case. Pat Montes assisted with witness preparation. The damages awarded were just for the plaintiffs’ non-economic damages. The defendants’ pre-trial offer to settle was $35,000.
Congratulations to KD&P associate Morgan McPheeters for successfully defending an expunction order obtained by Jeremy Rosenthal, of Rosenthal & Wadas, on behalf of his client in Collin County. The order at issue expunged records relating to an arrest for felony aggravated assault for which the client was subsequently acquitted. The State, claiming that the entire expunction statute is “arrest based,” argued that the records could not be expunged because, when the client was arrested, she was also arrested on a totally unrelated misdemeanor theft charge to which she ultimately pled guilty. In a case of first impression, the court of appeals rejected the State’s “arrest-based” interpretation, concluding that, based on the plain language of article 55.01(a)(1) of the Code of Criminal Procedure, a guilty plea to a wholly unrelated offense does not prohibit the expunction of records related to the acquitted offense, even where the arrest arises out of both. You can read the opinion here.
Congratulations to Maria Wormington of Wormington & Bollinger and Christy Wollin and Peter Kelly of Kelly, Durham & Pittard for an excellent appellate win in the Fort Worth Court of Appeals in which the court held that the lower standard of care—“wilful and wanton”—applicable in hospital emergency rooms does not apply to healthcare provided to expectant mothers being treated in an obstetrical unit. The opinion can be found here. Peter Kang, with Law360, wrote an article about the opinion. You can read that article here.
KD&P is pleased to announce that on December 28, 2016, its Dallas office has a new home–the old Cedar Crest house at 2223 W. Jefferson Blvd., in Oak Cliff. John Council wrote a nice article about our move and the new house in the January 2017 edition of Texas Lawyer. You can read the article here.
Congratulations to David and Cris Feldman who, along with Kirk Pittard, successfully convinced the trial court to partially lift a temporary restraining order that had been in place prohibiting the release of any benefits to retired police officers and firefighters from the Deferred Retirement Option Plan. Today’s ruling paves the way for the Dallas Police and Fire Pension Fund Board to reinstate the payment of the monthly retirement installment benefits upon which many of these retired officers and firefighters rely. Fox 4’s Diana Zoga covered the ruling and interviewed Kirk about the case. You can see her story here.
Baylor law student Cassie Hansen is the winner of Baylor Law School’s first Ultimate Legal Writing Competition! Kelly, Durham & Pittard, LLP is proud to be a sponsor of this writing program, and congratulates Cassie for winning the contest. KD&P also congratulates the second and third place finishers, Jamie Oberg, a third-year law student, and Ashlie Morgan, a recent graduate, for their excellent legal writing skills. You can read about the contest, and see pictures of the award ceremony, here.
Congratulations to Dean Boyd and Jamie Kroon of the Attorney Dean Boyd firm, and Leighton Durham of Kelly, Durham & Pittard on an $8.9M verdict in Dallas County following the bench trial of a case in which the plaintiff, Bobby Tunnell, suffered massive injuries when the car in which he was a passenger hit the defendant’s cow, rolled 8 times and eventually exploded. If not for the heroic efforts of his son pulling him from the burning truck, Mr. Tunnell would have died.
This is the “cow in the road medical malpractice case”—a case in which the owner of the cow, who made no real effort to fence his cattle, happened to be a former doctor who claimed that he should be protected by Texas’ medical malpractice statute. After the defendant’s effort to dismiss the case was rejected by the trial court and the court of appeals, and the defendant and his lawyers’ sanctioned, the case finally proceeded to trial and verdict in Judge Tobolowsky’s court. You can see more about the case here. Congratulations to all of those involved!
When Mayor Mike Rawlings filed suit today, seeking to halt retirees’ withdrawal of funds from the Dallas Police & Fire Pension Fund, NBC Ch. 5 and CBS Ch. 11 discussed the issue with Kirk. You can see the NBC story here, and the CBS story here.
KD&P is pleased to welcome Michael Kawalek as its newest associate. Formerly an associate with Bell, Nunnely, & Martin LLP, and Bickel & Brewer before that, Michael is a 2010 graduate of the University of Texas School of Law and brings some significant complex litigation experience to the firm.
Congratulations to David Lopez and Leslie Hyman, of Pulman, Cappucio, Pullen, Benson & Jones, LLP, who, along with the help of Peter Kelly, successfully defended their judgment before Houston’s First Court of Appeals. The appeal involved the validity of an abstract of judgment filed under a Hispanic judgment debtor’s maternal surname. David, Leslie, and Peter successfully convinced the court of appeals that the abstract was sufficient to give notice of the judgment to the public. You can read the opinion here.
Congratulations to KD&P partners Peter Kelly, Kirk Pittard, Leighton Durham, and Thad Spalding who were once again named “Super Lawyers” in the Appellate category by Super Lawyers Magazine, a Thomson Reuters publication. Peter Kelly was even more super, being named to the Houston region’s list of Top 100 lawyers overall for the second year in a row.
KD&P is proud to sponsor a new writing competition at Baylor Law School, “The Ultimate Writer Competition,” through its Legal Writing Center. Top prize, in addition to cash, is a clerkship opportunity with our firm.
Congratulations to KD&P partner Thad Spalding and associate Christy Wollin for their win Friday in the Fort Worth Court of Appeals. The case arose out of the faulty installation of the HVAC unit in the Young family’s new house which resulted in severe mold damage to the home and personal injury to the family. After the trial court dismissed the parents’ claims for failing to disclose them in bankruptcy, and then sanctioned the young-adult children for even filing their claims, Thad and Christy were able to convince the Fort Worth Court of Appeals to reverse the judgment, allow the parents’ claims to proceed to trial, and set aside the sanctions award against the kids. You can read the opinion here.
Congratulations to KD&P’s Thad Spalding, and trial counsel—Marty Rose and Bryan Rose of Rose Walker—for successfully defending a common law trademark infringement, trademark dilution, and unfair competition jury verdict on behalf of their client, Premier Pools—a North Texas, family-owned pool builder who had been in business for almost 30 years before an out-of-state licensor started to unfairly compete in the North Texas market using a nearly identical name. After Marty and Bryan convinced a Dallas jury that the licensor’s and Texas licensee’s conduct constituted trademark infringement, trademark dilution, and unfair competition, Premier Pools was awarded lost profits, disgorged profits, and permanent injunctive relief. The licensor and Texas licensee appealed and, on August 12, 2016, the Dallas Court of Appeals affirmed all of the jury’s findings and the bulk of the trial court’s judgment. You can read the Dallas court’s opinion here.
Congratulations to Peter Kelly who, on July 26, 2016, successfully upheld a commercial verdict in the Fourteenth Court of Appeals. The case–a commercial fraud-by-nondisclosure case involving the development and operation a fried chicken franchise–involved a duty to disclose on the part of the defendants that arose when the defendants only partially disclosed the ownership of the real property on which the store as built. Peter successfully convinced the Court of Appeals to uphold nearly $600,000 in damages, including $100,000 in exemplary damages. You can read the opinion here.
Congratulations to Dava Greenberg-Spindler and Kirk Pittard who won a family law case yesterday in the Fort Worth Court of Appeals. Dava and Kirk represented the parents of a child. The child’s grandparents filed a suit affecting the parent-child relationship (SAPCR) seeking managing conservatorship over the child. Dava and Kirk successfully convinced the court of appeals that the grandparents did not have standing to file the SAPCR because they did not have actual care and control over the child for the statutory required six months. Therefore, the child gets to stay with her mother and father. You can read the opinion here.
Congratulations to KD&P associate, Morgan McPheeters, who successfully convinced Houston’s First District Court of Appeals to affirm the trial court’s ruling, allowing her client’s personal injury claims against the City of Houston to proceed. After a police dog attacked and injured his minor son, Jesus Roman filed suit against the City of Houston, alleging that the Houston police officers charged with handling the dog were negligent. The City, however, claimed it was immune from suit under the Texas Tort Claims Act because the officers’ conduct was actually an intentional tort for which cities are immune from suit. The court of appeals rejected the City’s argument, holding that the injuries caused by the police dog were claims arising out of the City’s negligent use of tangible personal property—claims for which the Act allows the City to be sued. You can read the court of appeals’ opinion here.
KD&P’s loss would be the Fourteenth Court of Appeals’ gain. KD&P’s Houston partner, Peter M. Kelly, was recently asked to be the Democratic candidate for one of the positions on Houston’s Fourteenth Court of Appeals, and will be on the ballot in this November’s election. John Council wrote an article in this month’s Texas Lawyer that details the how and why Peter was asked to throw his hat in the ring. You can read the article here.
Congratulations to KD&P associate Morgan McPheeters who won another case in the Dallas Court of Appeals. This time, Morgan successfully defended a default divorce decree obtained by a spouse against her incarcerated husband. In the process, the court of appeals rejected the husband’s attempt to challenge the judgment on due process grounds where he failed to file a motion for new trial or otherwise introduce evidence satisfying the Craddock factors. You can read the opinion here.
Congratulations to Kirk Pittard and Thad Spalding, who were named “Best Lawyers” in the Appellate category in the May 2016 issue of D Magazine. This is Kirk’s sixth time to be named to the list, and Thad’s fifth. You can see the entire list of Dallas’s “best lawyers” in the Appellate category here.
Congratulations to KD&P partner, Leighton Durham, and associate, Morgan McPheeters, and trial counsel, Laura Tamez of the Herrera Law Firm, who successfully defended a trial court’s refusal to dismiss a medical malpractice case based on the defendants’ challenge to the Chapter 74 expert reports. You can read the opinion here.
Congratulations to Thad Spalding who was able to convince the Fifth Circuit to reverse a judgment against his client, even after the trial court determined that his client had been sold a helicopter that was not airworthy. Based on that win, Texas Lawyer named Thad its “Appellate Lawyer of the Week.” You can read the opinion here, and you can find the Texas Lawyer article about the case and Thad here.
Congratulations to Thad Spalding and Morgan McPheeters who successfully defended a summary judgment in a legal malpractice case in the Dallas Court of Appeals. Dan Tostrud and Matthew Last, with Cobb Martinez Woodward, successfully moved for summary judgment in the trial court in favor of an attorney in a legal malpractice case arising out of the handling of a judicial forfeiture proceeding, where the former client’s only evidence of causation was the conclusory affidavit of another attorney who simply claimed that he had successfully handled other forfeiture proceedings in the past and, because this particular case had not been successful, the attorney was therefore negligence. The Dallas Court of Appeals agreed with the trial court and affirmed the summary judgment. You can read the opinion here.
Congratulations to Christy Wollin, an Associate in KD&P’s Dallas office, who was named a “Rising Star” in the Appellate Practice category for the third year in a row. You can see the entire list of Appellate “Rising Stars,” including Christy, here. Way to go, Christy!
Congratulations to Jason Gibson and Casey Jordan of The Gibson Law Firm who, along with the help of Peter Kelly, successfully prosecuted a wrongful death case against Manhattan-Vaughn on behalf of Angel Garcia’s family. Angel Garcia was killed on December 4, 2013, during the construction of Kyle Field. His family filed suit, and on February 10, 2016, the jury awarded Garcia’s family $54 million. You can read more about the case in the Houston Chronicle here.
Congratulations to Kirk Pittard and Leighton Durham who successfully convinced the Dallas Court of Appeals to not only dismiss an appeal, but to sanction both the defense attorney and his doctor client for pursuing a frivolous appeal. The “cow in the road” appeal, which stems from serious injuries our client suffered when he ran into a cow owned by a former doctor, began when the former doctor argued that, simply because he was a doctor, the personal injury case was actually a healthcare liability claim which required a Chapter 74 expert report. The trial court denied the doctor’s motion, and the doctor appealed. Following the Texas Supreme Court’s opinion in Ross v. St. Luke’s Episcopal Hospital, 462 S.W.3d 496 (Tex. 2015), Leighton sent opposing counsel a letter notifying him that, in light of Ross, the appeal was frivolous and should be dismissed. When he refused to do so, Kirk and Leighton asked that the appeal be dismissed and that they be awarded all attorneys’ fees incurred in defending the frivolous appeal. On February 9, 2016, the Dallas Court of Appeals agreed that the appeal was frivolous and sanctioned both the defense counsel and the doctor. You can read about the case in the Texas Lawyer here, or Law360.com here. A copy of the court’s opinion can be found here.
KD&P is pleased to welcome its newest associate, Dava Greenberg-Spindler, to the Dallas office. Dava is a native San Antonian, and a 2015 graduate, magna cum laude, of Texas Tech University School of Law. Welcome to the firm Dava.
Congratulations to Rose Walker attorneys, Marty Rose and Chris McDowell, and their client, ThermoTek, who–along with the support of Thad Spalding–obtained a $7.5M jury verdict on November 20, 2015 following a three-week trial in a Federal District Court in Dallas. ThermoTek, who was originally sued by the Defendants, defeated the Defendants’ claims and successfully pursued its own claims for fraud and unfair competition when those Defendants convinced ThermoTek to make them distributors of ThermoTek’s medical device and then used that relationship to improperly create their own, nearly identical, product and use that product to unfairly compete with ThermoTek. A Law360.com article regarding the case can be found here.
Congratulations to Peter Kelly who, on November 19, 2015, successfully convinced the Corpus Christi Court of Appeals to affirm a trial court’s order refusing to dismiss his client’s case pursuant to Chapter 74 of the Texas Civil Practice and Remedies Code–the Texas Medical Liability Act. The client, a housekeeper, sued her employer, Corpus Christi Medical Center, for injuries she suffered when she was assigned by the Medical Center to a task that required her to lift very heavy items, a task that was not part of her normal duties. The Corpus Christi Court of Appeals refused to find that Ms. Martinez’s claim was a health care liability claim and, thus, Chapter 74 did not apply. You can find a copy of the court’s opinion here.
Congratulations to Kirk Pittard who successfully defended a trial court’s order requiring that State Farm of Lloyds produce electronically-stored information in the native format in which such information is usually kept. State Farm sought mandamus relief, but the Corpus Christi Court of Appeals concluded that mandamus relief was not warranted and required that State Farm produce the information in its native or near native format. You can read the opinion here.
KD&P and Houston partner, Peter Kelly, are honored to have worked with lead counsel Jim Lewis on an amicus brief in the Texas Supreme Court on behalf of Aid to Victims of Domestic Abuse (a United Way Agency) and the Texas Trial Lawyers Association, asking that the court reverse a lower court opinion that held that a female employee who was violently sexually assaulted by her supervisor in her workplace bathroom is limited to the same administrative remedies as a victim of non-violent, non-physical sexual harassment or discrimination. A copy of that brief can be found here.
Congratulations to KD&P partners Peter Kelly, Kirk Pittard, Leighton Durham, and Thad Spalding who were all named “Super Lawyers” in the Appellate category by Thomson Reuters and the publishers of Texas Monthly magazine. A special congratulations to Peter Kelly for also being named among the Houston region’s Top 100 lawyers overall.
Congratulations to Peter Kelly and Will Adams for their successful defense of a judgment in excess of $800,000 in a nonsubscriber case against a negligent employer. Peter and Will defeated nearly all of the employer’s factual and legal sufficiency arguments regarding the liability and damage findings, as well as arguments related to the exclusion of certain evidence, improper jury argument, and charge error. Most notably, however, the court of appeals refused to reduce the medical expenses awarded under the “paid or incurred” statute based on the medical providers’ sale of the injured party’s medical bills to a medical factoring company. You can read the court’s opinion in Katy Springs & Mfg., Inc. v. Favalora here.
Congratulations to Morgan McPheeters who won her first appeal in the Fort Worth Court of Appeals! Morgan successfully upheld a default judgment in favor of a personal injury plaintiff, where the defendant attempted to challenge the judgment through a bill of review more than four years after the judgment was entered, claiming extrinsic fraud in the manner in which substituted service was executed. You can read the court’s opinion here.
Congratulations to Peter Kelly who convinced the Fourteenth Court of Appeals in Houston to affirm a $1.1 million judgment obtained by Jason Gibson and Andrew Smith against Kroger following an incident in which a meatcutter lost four fingers on his dominant hand.
Among other issues on appeal, Kroger argued that its duties should be limited to those owed by premises owners to invitees–meaning no duty to train or supervise, hire competent co-employees, provide appropriate instrumentalities, etc. The court rejected that argument based on the Supreme Court’s recent opinion in Austin v. Kroger. Kroger also argued that the trial court erred in admitting certain photographs taken by the plaintiff after he returned to work, claiming that the pictures were thus the result of a criminal trespass and thus inadmissible under the exclusionary rule. The court rejected this argument as well. You can find a link to the opinion here.
Congratulations to Partner, Peter Kelly who has been appointed to a second three-year term on the Texas Supreme Court Advisory Committee. Currently comprised of 46 judges, former judges, and practitioners, the Committee assists the Supreme Court in the continuing study, review, and development of rules and procedures for the courts of Texas, taking into consideration the rules and procedures of other courts in the United States and proposals for changes from whatever source received. The Committee drafts rules as directed by the Court; solicits, summarizes, and reports to the Court the views of the bar and the public on court rules and procedures; and makes recommendations for change.
Congratulations to Leigh Bradford who convinced the Dallas Court of Appeals to reverse the trial court’s dismissal of a medical malpractice case based on the sufficiency of the Chapter 74 expert report. The Dallas Court of Appeals determined that the trial court abused its discretion in dismissing the claims against a doctor, finding that the Chapter 74 expert report sufficiently demonstrated a causal relationship between the physician’s negligence and the death of Mr. Mitchell. You can read the court’s opinion here.
In response to a very defense-oriented article which argued that, despite the plain language of the statute, a plaintiff could obtain punitive damages for fraud only if some level of “super-fraud” had been proved, Peter Kelly wrote a rebuttal published by the Texas Lawyer on June 1, 2015 that clarified the statutory requirements for obtaining punitive damages in fraud cases.
Congratulations to Kevin Camp who, along with the help of Kirk Pittard, obtained a $5.24 million verdict in favor of their client, John Blommer, against BNSF Railway back in October of last year. On May 25, 2015, the verdict was highlighted by the Texas Lawyer as the second-highest toxic tort verdict in 2014.
On May 25, 2015, John Council and the Texas Lawyer featured Leighton Durham and the cow in the road case again. In this installment, the Texas Lawyer zeros in on a motion to dismiss Leighton filed with the Dallas Court of Appeals, urging the court to not only dismiss the defendants’ appeal but also award Leighton’s client the attorney’s fees incurred in having to ask the court to do so.
Another month, another big win for Peter Kelly, this time in In re Memorial Herman Hosp. Sys., No. 14-0171, — S.W.3d —, 2015 WL 2438752 (Tex. May 22, 2015). In this case, Dr. Gomez brought suit against Memorial Hermann, his former employer, seeking damages caused by the hospital’s defamatory “whisper campaign” against him. The hospital claimed that all the relevant documents were protected by the medical peer review privilege; on mandamus, the Texas Supreme Court held that the “anticompetitive action” exception to the privilege applies, and ordered the vast majority of the documents produced.
On April 24, 2015, the Texas Supreme Court decided Brown & Gay Eng’g, Inc. v. Olivares, No. 13-0605, — S.W.3d —, 2015 WL 1897646 (Tex. April 24, 2015), a case in which a private engineering firm retained by a governmental entity to design and build a toll road asserted “derivative sovereign immunity” in an effort to protect itself from liability for a three-fatality accident caused by its own negligent design. Peter Kelly convinced the Texas Supreme Court to decline to expand the doctrine of governmental immunity to extend to private entities that contract with the government, and allowed the underlying lawsuit against the engineering firm to proceed. Justice Lehrmann’s opinion can be found here, and a concurring opinion by Chief Justice Hecht can be found here.
KD&P is pleased to announce that Morgan McPheeters passed the Texas Bar Exam! Morgan is now licensed to practice law in Texas and New Mexico. Congratulations Morgan!
KD&P is pleased to announce that, for the fifth year in a row, Kirk Pittard has been recognized by D Magazine as one of the best lawyers in Dallas in the Appellate practice category. Congratulations Kirk!
On Friday, April 10, 2015, Leighton Durham and trial counsel, Dean Boyd, successfully defeated the defendant’s now widely-publicized effort to have their client’s case dismissed pursuant to Texas’s medical malpractice statute solely on the basis that the cow’s owner, and defendant in the case, is a retired doctor. A Texas Lawyer article discussing the case can be found here.
Peter Kelly is urging the Texas Supreme Court to reconsider its March 6, 2015 decision in The Fredericksburg Care Co., L.P. v. Juanita Perez, et al. (No. 13-0573), and the Texas Trial Lawyers Association, the Texas Association of Defense Counsel, the Texas Chapter of the American Board of Trial Advocates, and even Texas Mutual Liability Trust, a medical malpractice insurer, have joined him in that request. The opinion holds that the Federal Arbitration Act preempts a provision of Texas’s medical malpractice statute that allows medical malpractice cases to be subject to arbitration, but only if certain statutory notices are provided in the arbitration agreement and the agreement is signed by the patient’s attorney. The opinion can be found here, Peter’s briefs and those of the other amici can be found here, and a Texas Lawyer article about the case can be found here.
On March 26, 2015, KD&P partner Peter Kelly presented argument to the Texas Supreme Court on behalf of the Texas Trial Lawyers Association regarding Texas’s statutory punitive damages caps. A summary of the case, Mirta Zorrilla v. Aypco Constr. II, LLC, et al., No. 14-0067, and Peter’s argument can be found here. Peter’s argument begins at the 30 minute mark.
On March 24, 2015, KD&P partner Kirk Pittard testified before the Texas House of Representatives’ Committee on Business and Industry against HB 1603, a “chancery court” bill which would create special courts for special commercial interests in contravention of the Texas Constitution and which would be detrimental to the citizens of Texas. Kirk’s testimony can be seen here beginning at 3:05:00.
KD&P is pleased to announce that, for the second year in a row, Christy Wollin has been named a “Rising Star” in the Appellate category by Super Lawyers Magazine, a publication of Thomson Reuters and the publishers of Texas Monthly. Congratulations, again, Christy!
Kelly, Durham & Pittard, LLP is pleased to announce the addition of Morgan A. McPheeters as a new associate in the Dallas office. Morgan is a 2014 cum laude graduate of Baylor Law School, with a concentration in business litigation, is already licensed to practice law in New Mexico and just sat for the Texas Bar Exam last month. Welcome to the firm Morgan.
On February 25, 2015, Peter Kelly defended a discovery order requiring the disclosure of peer-review committee documents before the Texas Supreme Court. Peter presented argument on behalf of the Respondent, Dr. Miguel Gomez, in In re Hermann Hosp. Sys., No. 14-0171. The issue concerns whether (1) the statutory medical-committee privilege protects documents potentially discoverable under the “anticompetitive exception” to the statutory privilege and (2) the exception requires that an antitrust claim be pled. A Law360.com article regarding the case can be viewed here (“Hospital Fights Privileged Docs“) and a summary of the issue and Peter’s argument can be viewed here.