DP&S is proud to announce that Santa Fe partners Roz Bienvenu, Justin Kaufman, and Caren Friedman will be serving on three important New Mexico rules committees in 2023. Roz was recently appointed to the Uniform Jury Instructions Civil Committee, where she will serve a one-year term with eligibility to serve for an additional six years. Roz has extensive experience assisting DP&S’s trial lawyer clients with jury instructions, and her appointment will give her the opportunity to help improve the uniform instructions and committee commentary to clarify New Mexico law. Justin has been serving on the Rules of Civil Procedure for State Courts Committee since his appointment by the New Mexico Supreme Court in 2021. This committee reviews, revises, and drafts new rules applicable to civil cases across the state. Caren has been serving on the Appellate Rules Committee since her re-appointment by the Supreme Court in 2020. The Court had previously appointed her to this committee in 2005 and to serve as chair from 2007 to 2010. The Appellate Rules Committee drafts and amends the rules governing proceedings in the New Mexico Court of Appeals and the New Mexico Supreme Court.
Congratulations to Santa Fe partner, Caren Friedman, who presented argument on behalf of the Plaintiff in the New Mexico Court of Appeals on January 12, 2023. Plaintiff was catastrophically injured when the grossly overloaded and untethered scaffold on which he was working collapsed. In New Mexico, a negligence claim against an employer is barred by the exclusivity provision of the Workers Compensation Act. Caren argued that the employer’s intentional acts and omissions and utter disregard for the consequences allow Plaintiff’s claim to proceed. The Court will determine whether the district court erred in granting summary judgment in favor of the employer. You can listen to Caren’s argument in Camarena v. Superior Contracting Corp. d/b/a American Nat’l Insulation and Sealants, N.M. App., A-1-CA-39598; A-1-CA-39269 here.
Congratulations to Santa Fe partners, Caren Friedman and Rosalind Bienvenu, who, along with trial counsel Joseph Zebas of Hobbs, New Mexico, successfully convinced the New Mexico Court of Appeals to reverse summary judgment in a medical malpractice case. The defendant hospital mixed up two patients with the same name and then administered incorrect blood pressure medications to the plaintiff, causing a life-threatening drop in blood pressure. The district court granted summary judgment in favor of the defendant based on causation. The Court of Appeals reversed and remanded the case for further proceedings, agreeing that plaintiff’s medical expert testimony permitted a reasonable inference of causation, making summary judgment improper. You can read the opinion in Walker v. Carlsbad Medical Center here.
Congratulations to Santa Fe partners Caren Friedman, Rosalind Bienvenu, and Justin Kaufman, who successfully convinced the New Mexico Court of Appeals to affirm the judgment in a complex water law appeal. DP&S, along with Paul Hultin and the New Mexico Environmental Law Center, represented a consortium of individuals and entities (“Protestants”) who opposed Aquifer Science’s water application, which sought to appropriate groundwater for a speculative, luxury, resort-style development with two golf courses in the East Mountains near Albuquerque. In a formal published opinion, the Court of Appeals agreed that the New Mexico State Engineer’s denial of Aquifer Science’s application was proper because granting the application would result in the impairment of existing wells and would be contrary to the conservation of water. On the conservation prong of the governing statute, Protestants argued that the State Engineer should take into consideration climate change when addressing water applications, prompting the Court of Appeals to call on the State Engineer and the New Mexico Legislature to “provide guidance regarding climate change and conservation before it is judicially imposed.” Finally, the Court of Appeals affirmed a cost award of nearly $400,000 to Protestants as the prevailing parties, and, as a matter of first impression, held that Protestants are entitled to post-judgment interest on that award. You can read the opinion in Aquifer Science, LLC v. Verhines, et al. here.
Congratulations to Kirk Pittard who was featured in the Summer 2022 edition of Baylor Law School’s Docket Call. You can read the article here.
Congratulations to DP&S attorney, Shelby White, who won another qualified immunity appeal to the Fifth Circuit. The appeal was by two police officers who used excessive force to remove and arrest a student at a high school basketball game. The trial court denied the officers’ claim of qualified immunity because of material fact disputes between the officers’ and student’s version of events. On appeal, the Fifth Circuit affirmed the trial court’s ruling, finding that video of the incident did not conclusively establish that the officers’ use of force was reasonable, and that the law clearly prohibited use of the level of force against a teenager who was “not committing a crime, not a threat to others, and not resisting or attempting to flee the police.” You can read the opinion here.
Congratulations to Santa Fe partner and Chair of the New Mexico State Bar Appellate Practice Section, Rosalind Bienvenu, who moderated the Appellate Judges Candidate Forum on October 18.
The Forum featured nine candidates for seats on the New Mexico Supreme Court and the New Mexico Court of Appeals, including Justice Julie J. Vargas, Justice Briana H. Zamora, Judge Katherine A. Wray, and Judge Gerald E. Baca. The Forum, which was open to the public, provided an opportunity for the judicial candidates to answer questions designed to familiarize voters with their backgrounds and philosophies. The Forum can be viewed on the New Mexico State Bar’s YouTube page.
Congratulations to DP&S attorney, Shelby White, who–along with Thad Spalding, and trial attorney, Daryl Washington–successfully reversed a summary judgment order granting qualified immunity to a police officer. The case involved the fatal shooting of Tavis Crane by Arlington police officer Craig Roper after Crane was stopped when his toddler threw a candy wrapper out of the car window. The trial court granted summary judgment to Officer Roper on the basis of qualified immunity, finding that case law precedent built qualified immunity “into a nearly insurmountable obstacle.” On appeal, the Fifth Circuit found that there were fact issues that needed to be decided by a jury as to whether Roper acted used reasonable force, considering–among many other facts–the speed that Roper resorted to using deadly force. As such, the Court reversed summary judgment and remanded the claims against Officer Roper and the City of Arlington to the district court for trial. You can read the opinion here, and a Dallas Morning News article about the case here.
On September 9, 2022, Santa Fe Partner Rosalind Bienvenu, current Chair of the Board of Directors of the New Mexico State Bar’s Appellate Practice Section, moderated the Section’s 33rd Annual Appellate Practice Institute, a daylong webinar featuring distinguished panel members from the appellate bench and bar. The Institute addressed topics such as United States Supreme Court jurisprudence, recent developments in New Mexico appellate practice, best practices for appellate briefing and oral argument, and working with trial counsel to prepare for appeal.
DP&S is pleased to announce that Phil Kovnat has joined the firm as an attorney in the Santa Fe Office. Phil comes to us from the U.S. Equal Employment Opportunity Commission in Washington, D.C. and Philadelphia where he was an appellate and trial attorney handling all phases of litigation. Phil also worked closely with the Office of the Solicitor General and other offices within the Department of Justice on certiorari-level and merits-stage proceedings in the U.S. Supreme Court. Before joining the EEOC, Phil served as a law clerk to the Honorable Bruce D. Black in the United States District Court for the District of New Mexico, and then went on to clerk for the Honorable Dolores K. Sloviter of the United States Court of Appeals for the Third Circuit. Phil obtained his law degree from American University-Washington College of Law, where he served on the American University Law Review and the Washington College of Law Moot Court Honor Society, and is licensed to practice in the State of New York, as well as the United States Supreme Court, and the United States Courts of Appeals for the Third, Fourth, Fifth, Seventh, Ninth, Tenth, and D.C. Circuits.
Congratulations to Jeffrey Pitman and Benjamin Reyes of Pitman, Kalkhoff, Sicula & Dentice on their victory in the New Mexico Court of Appeals. Mr. Pitman and Mr. Reyes, along with Feliz Rael of The Law Offices of Feliz A. Rael, and Keller & Keller, successfully defended an $11 million jury verdict on appeal in a nursing home wrongful death case. In a published opinion, the Court of Appeals rejected the defendants’ bid to overturn the verdict and procure a new trial and, on cross-appeal, reinstated a jury finding that the various defendant-entities operated as a joint venture, making them all responsible for the nursing home’s conduct. DP&S partners Justin Kaufman and Caren Friedman assisted with the appellate strategy and briefing.
DP&S is proud to announce that Kirk Pittard is, once again, one of the Best Lawyers in America, in the Appellate Practice category.
Congratulations to DP&S partners Dana Levy and Kirk Pittard on back-to-back wins in the Texas Supreme Court!
On May 6, 2022, Dana successfully reversed a court of appeals’ opinion that the plaintiff’s expert report failed to satisfy Chapter 74 of the Texas Civil Practice and Remedies Code. In E.D. v. Tex. Health Care, P.L.L.C., No. 20-0657, — S.W.3d —, 2022 WL 1434658 (Tex. May 6, 2022), the Texas Supreme Court held that the expert report was sufficient, confirming that Chapter 74’s “‘fair summary’ benchmark is not an evidentiary standard.” You can read a Law360 article about Dana’s case here.
The following week, Kirk Pittard successfully reversed a court of appeals’ opinion dismissing an appeal on jurisdiction grounds. In Mitschke v. Borromeo, No. 21-0326, — S.W.3d —, 2022 WL 1510317 (Tex. May 13, 2022), the Texas Supreme Court overruled Philbrook v. Berry, 683 S.W.2d 378 (Tex. 1985), and clarified that (1) a motion for new trial filed in the original cause is sufficient to extend the appellate deadlines in a severed, final judgment, and (2) the application of stare decisis generally and in cases transferred from one court of appeals to another. You can read a Law360 article about Kirk’s case here.
Congratulations to DP&S partner, Thad Spalding, who successfully defeated a police officer’s qualified immunity appeal to the Fifth Circuit. The case involves the fatal shooting of a teenager, Jordan Edwards, by Balch Springs police officer Roy Oliver. Oliver moved for summary judgment, claiming his shooting–into a car full of teenagers who were leaving a party and driving away–was justified based on his belief that the vehicle was an immediate threat to his partner, Officer Gross. Officer Gross, however, testified that the vehicle was not a threat to him and the officers’ body cam video shows the vehicle passing and driving away from the officers at the time Oliver opened fire into the vehicle. The district court denied Oliver’s motion for summary judgment and Oliver appealed that ruling. The Fifth Circuit rejected Oliver’s appeal, allowing the claims against Oliver to proceed to trial. You can read the opinion here. You can also read a Dallas Morning News article about the case and the ruling here.
DP&S is proud to announce that Santa Fe-based partners Caren Friedman and Justin Kaufman have been named Southwest (New Mexico and Arizona) “Super Lawyers” for 2022, an honor based on professional achievement and peer recognition.
Caren was named in the Appellate practice category. She is one of only eight New Mexico appellate practitioners, and the only one from Santa Fe, to be recognized. This is Caren’s 16th consecutive year to be included on this list.
Justin was named in the Plaintiff’s Product Liability category. This is Justin’s 6th year to be named to the list, and he is the only New Mexico attorney listed in the category.
Last week, Kirk Pittard appeared on D. Todd Smith and Jody Sanders‘s Texas Appellate Law podcast to discuss serving as the appellate counsel on the trial team, and was invited to speak on this topic by the Dallas Bar Association’s Appellate Law Section. You can listen to Kirk’s podcast here.
DP&S is pleased to announce that our Santa Fe partner, Rosalind B. Bienvenu, has taken the helm of the New Mexico State Bar Appellate Practice Section. Roz will serve as the President of the Board of Directors for a one-year term in 2022. She will bring to the Section her exceptional skills as an appellate practitioner, and we wish her well!
DP&S is pleased to announce that, beginning January 3, 2022, Shelby White joined the firm’s Dallas office. Shelby brings a wealth of appellate experience to the firm, having spent three years with the Tarrant County District Attorney’s Appellate Section where she served as lead attorney in over 50 appeals. Before that, Shelby was with the appellate and litigation section of Harris, Finley & Bogle, PC in Fort Worth where she worked on commercial cases at the state and federal level in Texas, Oklahoma, and Pennsylvania, and briefed appeals to the Texas Supreme Court, the Fifth Circuit Court of Appeals, and numerous intermediate appellate courts. Shelby is a graduate of Baylor undergraduate and law schools, a past board member of the Tarrant County Young Lawyers Association, a past president of the Tarrant County Bar Association’s Appellate Section, where she still serves on the section committee, and a top attorney according to Fort Worth Magazine since 2015. Shelby will be an excellent addition to our team.
Congratulations to Cynthia Huerta, David Glenn, Reed Morgan, Jake Glenn, and Kirk Pittard for getting a $1,265,000 jury verdict in Johnson County on November 23, 2021. They represented a plaintiff who had worked for BNSF railroad for 37 years until he injured his knee and back while on the job.
DP&S is proud to announce that it has been named to the “Best Lawyers” 2022 “Best Law Firms” list as a “Tier 1” firm–the highest ranking available–in the Dallas/Fort Worth area in Appellate Practice! According to U.S. News–Best Lawyers® “Best Law Firms,” “[a]chieving a tiered ranking . . . signals a unique combination of quality law practice and breadth of legal expertise. Ranked ﬁrms, presented in three tiers, are recognized on a national and regional-based scale. Firms that received a tier designation reﬂect the highest level of respect a ﬁrm can earn among other leading lawyers and clients from the same communities and practice areas.” You can view all of the selected firms–including ours–and the method of selection, here.
Congratulations to DP&S Santa Fe partner, Caren Friedman, who, along with trial counsel Kristina Martinez, successfully convinced the New Mexico Court of Appeals to reverse the final decree in a domestic relations case. Representing the Mother in this custody dispute, DP&S argued that the district court violated the Rules of Civil Procedure by failing to conduct a hearing on her objections to a domestic relations hearing officer’s recommendations. In a formal published Opinion, the Court of Appeals stated that “Mother’s interpretation [of the rule] is the most plausible expression of the drafter’s intent, and we adopt it here.” The Court observed that while hearing officers may assist the district court in determining factual and legal issues, “the core judicial function must always be performed by the judge.” Because the district court did not address the merits of Mother’s objections, the Court concluded that the hearing was “insufficient to satisfy the requirements” of the rule. The Court of Appeals remanded the case with instructions for the district court to conduct a hearing on the merits of Mother’s objections. You can read the opinion in Rawlings v. Rawlings here.
DP&S’s Houston partner, Dana Levy, was in the Texas Supreme Court again on a case involving responsible third party practice. Dana argued in defense of the trial court’s order, and a Dallas Court of Appeals opinion letting that order stand, which struck a responsible third party designation by the owner of a gas facility of the former minority-interest owner and contract-operator. You can watch Dana’s argument here.
DP&S is proud to announce that Kirk Pittard, Leighton Durham, Rick Thompson, and Thad Spalding have all been named “Super Lawyers” in the Appellate category by by Super Lawyers Magazine, a Thomson Reuters publication, for 2021.
Congratulations to DP&S partner, Roz Bienvenu, who worked with trial counsel William Angelley, Craig Schllapprizzi, and Tom Crosley, to successfully defend a Bexar County trial court’s order denying a special appearance by an aircraft manufacturer, Cirrus Design Corp., in a wrongful death products liability case. The plaintiff’s husband, an Air Force major stationed in Texas, was killed when the Cirrus aircraft he was piloting crashed in Bexar County. Cirrus argued that it should not be subject to suit in Texas because the plaintiff’s claims did not arise from or relate to any purposeful activity it conducted in Texas. The San Antonio Court of Appeals rejected this argument, finding that Cirrus conducts ample business activity in Texas and that the plaintiff’s claims were sufficiently related to that activity, relying on two recent, important jurisdiction cases, Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., 141 S. Ct. 1017 (2021), and Luciano v. SprayFoamPolymers.com, LLC, No. 18-0350, 2021 WL 2603840 (Tex. Jun. 25, 2021), which recently clarified the boundaries of specific personal jurisdiction and, in particular, the required nexus between a defendant’s in-state conduct and a plaintiff’s claims. You can read the opinion in Cirrus Design Corp. v. Berra, No. 04-20-00399-CV, — S.W.3d —, 2021 WL 3742683 (Tex. App.—San Antonio Aug. 25, 2021, no pet. h.), here.
DP&S is proud to announce that it has elevated Roz Bienvenu to the position of partner! Roz, now a partner in DP&S’s Santa Fe office, has worked with Justin Kaufman since 2015 and has been an instrumental part of not just the Santa Fe office, but the firm’s entire practice since 2018. We are so appreciative of all of Roz’s hard work and dedication to our clients, and we look forward to her continued success in her new role.
Congratulations to DP&S lawyers Kirk Pittard and Tammy Holt who were part of a trial team lead by Steve Laird, Robert Collins, Seth McCloskey, and Bracken Millar, that recently settled a double-fatality trucking case for $19 Million (for non-economic damages only) the day before the case was set to go to trial in Tarrant County.
We are proud to announce that, on June 1, 2021, Lauren Harbour joined DP&S’s Houston office. Lauren brings significant appellate and litigation experience, having first clerked for the Texas Supreme Court before focusing on complex commercial and insurance litigation, and appeals. Lauren was named a Texas Monthly “Rising Star” from 2017-2019.
Lauen is a 2009 graduate of South Texas College of Law where she was not only an Assistant Articles Editor on the South Texas Law Review, but also a member of the Varsity Moot Court team, where she received numerous best brief and best orator awards. The National Association of Women Lawyers even named Lauren “Outstanding Student of the Year” in 2009. Since then, Lauren has been elected to the Board of Directors for the Houston Young Lawyers’ Association, is a member of the Houston Young Lawyers’ Foundation, and serves on the Pro Bono committee for Houston Bar Association’s Appellate section.
Welcome to the firm, Lauren!
Congratulations to Thad Spalding and trial counsel Jon Hanna, Robert White, and Greta Braker, who successfully convinced the El Paso Court of Appeals that summary judgment based on the Workers’ Compensation Act’s exclusive remedy provision was not proper because of fact issues as to whether killed and injured passengers’ travel from a drilling site to a bunkhouse originated in or related to Amerimex’s business. Amerimex, who previously argued that its driver who caused the crash was not in the course and scope of his employment with them, claimed that the passengers—also Amerimex employees—were in the course and scope of their employment with the company. The El Paso Court of Appeals determined that even if the driver may have been in the course and scope of his employment, that did not mean the passengers were too, given that the passengers were not paid for their travel time to the bunkhouse, were not even required to stay in the bunkhouse, and were not on the clock after they left the drill site. You can see Thad’s oral argument here, and read the court of appeals opinion here.
DP&S is proud to announce that every lawyer in our Santa Fe office has been named Southwest (Arizona and New Mexico) “Super Lawyers” for 2021, an honor based on professional achievement and peer recognition.
Justin Kaufman was named a “Super Lawyer” in the Plaintiff’s Products Liability category. This is Justin’s 5th year to be named to the list, and he is one of only two New Mexico attorneys, and the only Santa Fe attorney, to be listed in this category.
Congratulations to Dana Levy who convinced the El Paso Court of Appeals to reverse a summary judgment granted in favor of an oil well services company and against our injured client. The court found fact issues as to the company’s liability for a collision caused by one of its workers, who was returning to remote well site after purchasing necessary supplies. Specifically, the court found that the existence of an employment relationship and whether the worker was acting in the course and scope of his employment were questions that needed to be answered by a jury. You can see Dana’s oral argument here, and read the court’s opinion here.
Once again, DP&S was proud to sponsor the Ultimate Writer Competition at Baylor Law School. Students compete not only for a cash prize, but also the opportunity to interview for a possible internship with our firm. This year’s winners were William de los Santos, first place; Grace Bregard, second place; Catherine Helm, third pace; and Timothy Phillips and Tom Evans, honorable mentions. You can read more about the winners and the competition here.
Congratulations to Tammy Holt who successfully defeated a Mandamus Petition filed by a Defendant claiming that In re North Cypress entitled him to broad medical expense discovery and claiming that the doctor’s objections should be overruled because (1) he sought the amounts actually reflected as payment in full on the doctors’ books (as opposed to seeking insurance reimbursement rates), and (2) the parties subpoenaed were experts because they were testifying regarding future medical expenses. In denying the petition, the court held that In Re North Cypress was “readily distinguishable” did not allow discovery “of the fees charged and accepted from other patients for the same medical services that were provided or recommended to the plaintiff.” You can read the 13th Court’s opinion here.
Congratulations to Lana Beverly who, along with trial counsel, Brian Steward, successfully defended the medical expert report by a radiologist who testified regarding another radiologist’s failure to diagnose the plaintiff’s breast cancer. On appeal, Lana persuaded the court that the expert radiologist was qualified to provide a causation opinion regarding the delayed cancer diagnosis and that the expert radiologist’s opinion that the delayed diagnosis permitted the progression of metastatic disease was adequate to satisfy the causation standard for purposes of Chapter 74. You can read the Court’s opinion here.
DP&S was in the Texas Supreme Court twice this week! Thad Spalding, along with co-counsel, Tex Quesada, argued Tuesday on behalf of an injured worker in a case dealing with a general contractor’s right of control over a worksite. You can see the argument here. The next day, Kirk Pittard argued a case addressing medical record affidavits and the standards applicable to counter-affidavits under a Texas statute. You can see Kirk’s argument here.
Congratulations to DP&S’s Santa Fe partner, Caren Friedman, on her victory in the New Mexico Court of Appeals in a domestic relations appeal arising under the Uniform Child Custody Jurisdiction and Enforcement Act. The appeal raised six issues, and the Court unanimously affirmed the judgment, including an attorney fee award.
Congratulations to DP&S’s Santa Fe partner, Caren Friedman, who presented argument on behalf of the Appellant in the New Mexico Supreme Court on January 15, 2021. The case is a direct appeal to the Supreme Court under the New Mexico Constitution because the Appellant was sentenced to life imprisonment. Caren argued for the reversal of a first-degree murder conviction on constitutional and evidentiary grounds. You can listen to Caren’s argument here.
Congratulations to Rick Thompson who, along with co-counsel Matthew Butler, successfully defeated an effort by a solid waste operator to challenge to Westlake’s authority to impose a license fee on all commercial solid waste operators within the town. You can read Rick and Matthew’s briefing here, and the Fort Worth Court of Appeals opinion here.
Congratulations to Tammy Holt, who–on a motion for rehearing–convinced a panel of the Dallas Court of Appeals to reverse itself and award Plaintiffs the total damages ($1,070,050) awarded by jury, rather than a drastically reduced amount ($200,000) based on the amount originally pled. Rejecting its original position that the Plaintiffs’ attempt to amend its petition to be consistent with the jury’s verdict was an impermissible attempt to amend the pleadings “post-judgment,” the court of appeals adopted “the more reasonable view” that, because Plaintiffs sought leave to amend their petition before the Amended Final Judgment was signed, the amended pleading was timely. You can read Tammy’s motion here, and the court of appeals opinion here.
Congratulations to DP&S associate, Lana Beverly, who along with trial counsel Steve Laird and Seth McCloskey, successfully defeated State Farm’s mandamus petition in the Fort Worth Court of Appeals. Lana convinced the court of appeals that the trial court was correct when it allowed discovery to be conducted regarding State Farm’s claims-handling process and procedures related to its uninsured/underinsured Motorist coverage and was not prohibited by the Texas Supreme Court’s opinion in Brainard. You can read Lana’s briefing here and the court’s opinion here.
Congratulations to DP&S partner, Caren Friedman, who prevailed before the New Mexico Supreme Court! Caren represented individuals whose appeal was dismissed by the New Mexico Court of Appeals as untimely. Caren successfully convinced the New Mexico Supreme Court to reinstate Plaintiffs’ appeal. The Supreme Court held that the Court of Appeals improperly gave “greater weight to procedural formalities than to basic rights of appeal” and should have deferred to the district court’s decision to grant an extension of the Plaintiffs’ notice of appeal deadline based on excusable neglect. You can read the opinion here.
Congratulations to DP&S’s Santa Fe Partner, Caren Friedman, who was named a Southwest (New Mexico and Arizona) “Super Lawyer” in the Appellate category for 2020. This is Caren’s 14th year to be included on this list, and she is one of only five New Mexico attorneys to be included in the Appellate category.
Congratulations to DP&S’s New Mexico partner, Caren Friedman, on her victory in the New Mexico Court of Appeals in a domestic relations appeal. The Court of Appeals unanimously affirmed the district court’s method of calculating the community’s interest in Husband’s retirement benefits and valuing Wife’s share. The Court of Appeals also affirmed the district court’s refusal to allow Wife’s late-disclosed expert to testify, where Wife offered her expert report months after the evidentiary hearing. You can read the court’s opinion here.
DP&S is pleased to announce that, once again, its Dallas partners Kirk Pittard, Leighton Durham, Thad Spalding, and Rick Thompson have been named “Super Lawyers” in the Appellate category by Super Lawyers Magazine, a Thomson Reuters publication, for 2020. Kirk was also named, once again, to the “Top 100” list for Dallas/Fort Worth and–for the first time–to the “Top 100” in Texas.
Congratulations to Dana Levy who successfully convinced the Dallas Court of Appeals to reinstate a medical malpractice case that had been dismissed. On appeal, Dana convinced the court that a cardiologist with hospital administration experience was qualified to opine as to a hospital’s policies and procedures for providing cardiac care. You can read Dana’s briefing here, and the Court of Appeals’ opinion here.
Congratulations to Tammy Holt and trial counsel, Rey Perez, who won an appeal in the San Antonio Court of Appeals this week. The interlocutory appeal was filed by a private entity who contracted with a governmental entity to manage a nursing home. Claiming derivative sovereign immunity, the private entity tried to claim that it could not be sued because, by contracting with the government, it was entitled to the same immunity from suit the government enjoys. The trial court declined to dismiss the case. The private entity appealed and, without reaching the substance of the derivative sovereign immunity claim, the court of appeals dismissed the appeal holding that contracting with a government entity did not transform the contractor into a “governmental entity” entitled to appeal under the interlocutory appeal statute. You can read Tammy’s briefing here and the court’s opinion here.
The case involved the death of the Petitioners’ 20-year-old daughter when the airbag system in her Ford Ranger truck failed to deploy. To pile tragedy upon tragedy, after years of litigation, the district court granted summary judgment to Ford Motor Company as a sanction against Petitioners’ trial counsel. When that same trial counsel then proceeded to miss the deadline for filing an appeal, the New Mexico Court of Appeals dismissed the appeal as untimely. Caren argued in the New Mexico Supreme Court for the reinstatement of the Petitioners’ appeal, so that their lawsuit may be decided on its merits. You can listen to Caren’s argument here.
Congratulations to Dallas partners Kirk Pittard and Rick Thompson who have been, once again, named “Best Lawyers” in the Appellate Practice category by The Best Lawyers in America for 2020. You can see Kirk and Rick’s listing here.
Congratulations to Lana Beverly who won an appeal in front of Houston’s First Court of Appeals this week. The case involved a facility for young people with disabilities in which the Defendants filed a second Ch. 74 motion to dismiss claiming the case was a medical malpractice case and required an expert report. Given that this was the second time Defendants had asserted this argument, Lana successfully convinced the Court of Appeals that the law of the case, as determined the first time Defendants made this argument, controlled the case and did not allow a second attempt to claim that the case was a medical malpractice case. You can read Lana’s briefing here and read the opinion here.
Congratulations to firm client Parker Waichman LLP on securing a denial of a motion to dismiss filed by Defendant Novartis Pharmaceuticals Corp. in a case pending in the District of New Mexico alleging that Novartis hid serious side effects of its blood cancer drug Tasigna. Novartis argued that the plaintiff failed to allege the exact date he was diagnosed with the side effects, and thus he should not be able to move forward with his negligence and product liability claims. U.S. District Judge James A. Parker disagreed, finding that the plaintiff was not required to preemptively refute Novartis’ affirmative defenses, and that his lawsuit can proceed. You can read the Court’s opinion here. You can also read a Law360.com article about the case here.
Congratulations to Thad Spalding who, along with Kevin Parker, Richard LaGarde, and Manfred Sternberg, was successful in convincing the Texas Supreme Court to deny immunity to GTECH, a private contractor hired by the Texas Lottery Commission to design and manufacture instant scratch-off tickets. You can see the Nettles briefing and argument here and here, and the Steele briefing and argument here and here, and you can read the Court’s majority opinion here. You can also read a Law360.com article about the case here.
Congratulations to Dana Levy on her successful defense of medical malpractice expert reports before Houston’s Fourteenth Court of Appeals. The court of appeals affirmed the trial court’s denial of Chapter 74 motions to dismiss filed by various health care providers, finding that the challenged experts were qualified and that their reports satisfied Chapter 74’s gate-keeping functions in all respects. You can read Dana’s briefing here, and the court of appeals opinion here.
Congratulations to Dany Levy, DP&S’s newest partner! Dana joined the firm in 2017 as Of Counsel and, since January 2019, has headed up the firm’s Houston office. We are proud of all that Dana has accomplished and look forward to many more successes.
Congratulations to Tammy Holt and Thad Spalding who, along with trial counsel Kenneth Chaiken, successfully reversed a summary judgment in a dispute over the terms and requirements of a Cross Purchase Agreement, and whether that agreement required remaining shareholders in a closely-held corporation to purchase their client, a retiring shareholder’s shares. The Court of Appeals also rendered judgment in their client’s favor and remanded the case for purposes of valuing the shares pursuant to the terms of the parties’ agreement. You can read the opinion here.
Congratulations to DP&S attorney Tammy Holt who successfully reversed a summary judgment granted against the plaintiff in a dog bite case! Tammy successfully convinced the court of appeals that the plaintiff’s claims of strict liability, negligent handling, and gross negligence were supported by deposition testimony that dog was “leery” around strangers, prone to nip at heels, and that owners considered putting the dog away when plaintiff visited, but decided not to. The court of appeals also refused to hold that compliance with a local leash law negated an element of plaintiff’s claim when the plaintiff did not allege a violation of the leash law. You can read the San Antonio Court of Appeals decision here.
Congratulations to Dana Levy who successfully defended a $500,000 default judgment in Houston’s Fourteenth Court of Appeals! Dana prevailed by arguing that the defendant’s 2019 appeal of a 2015 default judgment was untimely. The court of appeals agreed, rejecting the defendants’ argument that the default judgment was interlocutory because an unserved defendant was never nonsuited. You can see Dana’s briefing here, and read the opinion here.
DP&S, for the fourth year in a row, proudly sponsored the Ultimate Writer Program at Baylor Law School. Students compete not only for a cash prize, but also the opportunity to interview for a possible internship with our firm. Congratulations to this year’s winner, Christina Rosendahl, second place contestant, William de los Santos, and third place entry, Casey Cochran. You can read more about the winners and the competition here.
Congratulations to Dana Levy, and trial counsel Jason Stephens, on successfully defeating a mandamus petition filed in the Dallas Court of Appeals, seeking relief from the trial court’s striking of a responsible third party designation. The defendant, an owner of a gas facility where our client was injured, tried to designate and assign blame to a former minority-interest owner and contract-operator of the property. The court of appeals held that the minority owner, who sold its interest in the premises to the majority owner prior to the personal injuries at issue, owed no duty to the injured plaintiff because, under premises-liability principles, any such duty passed to the majority owner when its interest was sold. You can read Dana’s briefing here and the court’s majority opinion here.
DP&S is proud to announce the addition of Caren I. Friedman as a partner in the firm’s Santa Fe office. After serving as a judicial clerk in the Tenth Circuit, and later specializing in appellate practice, Caren has garnered a reputation as one of New Mexico’s top appellate attorneys. Caren joins colleagues Justin Kaufman and Roz Bienvenu and brings more than two decades of appellate expertise to the firm’s New Mexico office.
Congratulations to Dana Levy, who won an important medical malpractice case in the Texas Supreme Court! Dana successfully overturned a court of appeals holding that would have required a party to produce an expert report simply for purposes of seeking discovery from a nonparty physician. The Texas Supreme Court held in In re Turner that the expert-report requirement to proceed with a health-care-liability claim does not apply to a non-party doctor’s deposition when the doctor is a fact witness with knowledge relevant to claims against the defendant Hospital, even if the doctor may also face the possibility of becoming a defendant. You can read the opinion here. You can also see Dana’s briefing and argument that led to this fantastic result here and here, respectively.
DP&S associate, Jessica Foster, presented argument Thursday in the Texas Supreme Court in Cherlyn Bethel, et al. v. Quilling, Selander, Lownds, Winslett & Moser, P.C., a case that presents important issues regarding the scope of Rule 91a, a relatively new early-dismissal procedural rule, and attorney immunity, in a case that involves the destruction of crucial evidence. You can see Jessica’s briefing here, and you can watch her argument here.
Congratulations to DP&S partner, Kirk Pittard, along with a trial team that included Steve Laird, Seth McCloskey, Tim Brandenburg, and Pete Kestner, who, after a two-week trial, secured a $12.5 million settlement in an 18-wheeler-motorcycle collision case in Rockwall County. The collision occurred when the plaintiff, who was alleged to be going 60 m.p.h. in a 40 m.p.h. zone and attempting to time the green light as he entered the intersection, hit a Mercer 18-wheeler that had run a red light. The plaintiff, who survived the accident, is now blind and paralyzed. It was an all-hands-on-deck effort that led to the settlement just before closing argument.
Congratulations to David Harris, Craig Sico, and Louie Cook of Sico Hoelscher Harris LLP on a $40.5 million verdict in a wrongful death trucking case in Santa Fe County against Werner Enterprises. DP&S’s Justin Kaufman and Rosalind Bienvenu assisted on the trial team through the course of the 2-week trial. The jury found Werner, one of the largest trucking companies in the U.S., negligent for causing the death of Kathryn Armijo in a 2017 crash. The jury also found Werner liable for punitive damages.
According to evidence, Werner, through its own inadequate operations and training programs for its student drivers via Roadmaster Drivers School, had a systematic disregard for basic safety policies and training of new drivers. Werner, a company with more than $2 billion in annual gross revenue, each year hires approximately 4,500 new drivers with no prior truck driving experience. This is the second significant verdict against Werner Enterprises in the past 18 months. In May of 2018, Werner was hit with $89.6 million verdict by a civil jury for systematic safety and training failures in a multiple fatality case involving a student driver. You can read the verdict here.
DP&S partner, Kirk Pittard, recently wrote a law review article that has been published in the Summer 2019 edition of the Texas Tech Law Review concerning the recovery of medical expenses under Texas Civil Practice & Remedies Code § 41.0105 subsequent to the 2003 Tort Reform legislation. See Recovery of Medical Expenses Under Texas Civil Practice & Remedies Code § 41.0105 – The Paid or Incurred Statute, 51 Tex. Tech L. Rev. 731 (Summer 2019).
DP&S is proud to announce that, on September 30, 2019, Lana Beverly joined its Dallas office. Lana brings significant appellate and litigation experience, coming from a litigation boutique that specialized in catastrophic personal injury and wrongful death matters in addition to complex commercial litigation cases. Lana received her B.A., with distinction, from the University of North Carolina at Chapel Hill in 2006, and earned her J.D. from the University of North Carolina School of Law in 2010. Immediately after law school, Lana was selected to be a judicial clerk for the Honorable Tom Price of the Texas Court of Criminal Appeals. Lana has been recognized by Thomson Reuters in Texas Monthly as a “Texas Rising Star” in 2018 to 2019.
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.