Significant Victories

In the Matter of B.B.M., 291 S.W.3d 463 (Tex. App.—Dallas 2009, pet. denied)  Reversing a jury verdict in which a jury had awarded managing conservatorship of a child to a non-parent couple instead of to the natural father. Leighton Durham, Partner and Kirk L. Pittard, Partner

In re Deere & Co., 299 S.W.3d 819 (Tex. 2009) (orig. proceeding) (per curiam) Rejecting John Deere’s argument that a discovery order covering multiple makes and models of equipment was overly broad and unduly burdensome and establishing that a defendant bears the burden of proving the bases for objections raised in discovery. Kirk L. Pittard, Partner

Ferguson v. Building Materials Corp. of Am., 295 S.W.3d 642 (Tex. 2009)  Reversing a summary judgment granted against a personal injury plaintiff based on the doctrine of judicial estoppel due to an inadvertent omission in a bankruptcy filing. Kirk L. Pittard, Partner and Leighton Durham, Partner

City of Irving v. Seppy, 301 S.W.3d 435 (Tex. App.—Dallas 2009, no pet.) Affirming the denial of a plea to the jurisdiction filed by the City of Irving based on a claim of sovereign immunity. Leighton Durham, Partner

Benish v. Grottie,  281 S.W.3d 184 (Tex. App.—Fort Worth 2009, pet. denied) Affirming denial of motion to dismiss based on challenge to an expert report in a medical malpractice case. Also holding that an expert need not opine as to willful and wanton negligence in a chapter 74 report despite argument that case is governed

Vestal v. Wright, No. 2-08-237-CV, 2009 WL 2751020 (Tex. App.—Fort Worth Aug. 31, 2009, pet. denied) (mem. op.)  Affirming denial of a doctor and his urology group’s motion to dismiss based on a challenge to an expert report in a medical malpractice case. Kirk L. Pittard, Partner

In re Brittingham-Sada, No. 04-09-00488-CV, 2009 WL 2568341 (Tex. App.—San Antonio Aug. 19, 2009, orig. proceeding) (mem. op.)  Defeating attempt to dismiss case on personal and subject-matter jurisdictional grounds.

In re Brittingham-Sada, No. 04-09-00480-CV, 2009 WL 2517110 (Tex. App.—San Antonio, Aug. 12, 2009, orig. proceeding) (mem. op.) Defeating mandamus attempt to avoid discovery on jurisdictional grounds.

Texas Mut. Ins. Co. v. Durst, No. 04-07-00862-CV, 2009 WL 490056 (Tex. App.—San Antonio Feb. 25, 2009, no pet.) (mem. op.) Affirming judgment after jury verdict in workers compensation judicial review case.

In re Brittingham-Sada, No. 04-08-00688-CV, 2009 WL 263361 (Tex. App.—San Antonio Feb. 4, 2009, orig. proceeding) (mem. op.)  Defeating mandamus attempt to dismiss case on forum non conveniens grounds.

State ex rel. CYFD v. John R., 203 P.3d 167 (N.M. Ct. App. 2009) Reversing termination of father’s parental rights where district court erred in failing to appoint counsel for child who was over the age of 14, even where child had a disability and was not functioning at the mental age of 14; holding

Sherouse v. Ratchner, 573 F.3d 1055 (10th Cir. 2009) In suit against police officers challenging arrest under 42 U.S.C. § 1983, reversing in part judgment on jury verdict for defendants, holding that probable cause to support arrest was lacking where officer observed inherently innocuous behavior with a plausible innocent explanation. Caren I. Friedman, Partner

In re Texas Best Staff Leasing, Inc., No. 01-08-00296-CV, 2008 WL 4531028 (Tex. App.—Houston [1st Dist.] Oct. 9, 2008, orig. proceeding)  Successfully defending trial court order denying motion to compel arbitration.

Unauthorized Practice of Law Committee v. American Home Assurance Co., 261 S.W.3d 24 (Tex. 2008) Amicus brief Leighton Durham, Partner

Turner v. Hendon, 269 S.W.3d 243 (Tex. App.—El Paso 2008, pet. denied) Reversing and rendering a judgment based on legally insufficient evidence in a case involving a challenge to a deed conveying real property. Kirk L. Pittard, Partner

Moeller v. Blanc, 276 S.W.3d 656 (Tex. App.—Dallas 2008, pet. denied) After defense verdict in medical malpractice case, obtaining reversal and remand for new trial on basis of a Batson challenge.

McAteer v. Silverleaf Resorts Inc., 514 F.3d 411 (5th Cir. 2008) Amicus brief Leighton Durham, Partner

Lanphier v. Avis, 244 S.W.3d 596 (Tex.  App.—Texarkana 2008, pet. dism’d by agr.) Affirming a trial court’s denial of a defendant’s motion to dismiss in a medical malpractice case. Leighton Durham, Partner

Cantu v. Howard S. Grossman, P.A., 251 S.W.3d 731 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) On venue grounds, obtaining reversal of trial court judgment domesticating foreign judgment.

Boulle v. Boulle, 254 S.W.3d 701 (Tex. App.–Dallas 2008, pet. denied) Successfully protected a judgment rendered after a jury trial in a complicated commercial suit involving more than $250 million in alleged damages. Leighton Durham, Partner

Vansteen Marine Supply, Inc. v. Twin City Fire Ins. Co., No. 13-05-00231-CV, 2008 WL 599850 (Tex. App.—Corpus Christi Mar 6, 2008, pet. denied) (mem. op.)  In coverage action, affirming trial court’s judgment that insurer’s duty to defend did not require it to fund prosecution of counterclaim.

Williams v. Dallas County, No. 05-06-01142-CV, 2007 WL 3121670 (Tex. App.—Dallas Oct. 26, 2007, no pet.) (mem. op.) Successfully reversed summary judgment granted in favor of self-insured workers’ compensation carrier on the issue of the claimant’s “follow-on” injury Thad D. Spalding, Partner

Plano Parkway Office Condominiums v. Beaver Properties, 246 S.W.3d 188 (Tex. App.—Dallas 2007, pet. denied) Reversing a summary judgment in a case of first impression involving the interpretation of the Texas Condominium Act. Thad D. Spalding, Partner

Kallam v. Boyd, 232 S.W.3d 774 (Tex. 2007)  As amicus, persuading court to withdraw its grant of review as improvidently granted.

In re Igloo Products Corp., 238 S.W.3d 574 (Tex. App.—Houston [14th Dist.] 2007, orig. proceeding)  Successfully defending trial court order denying motion to compel arbitration.

Hagberg v. City of Pasadena, 224 S.W.3d 477 (Tex. App.—Houston [1st Dist.] 2007, no pet.)  Affirming judgment after jury verdict in workers compensation judicial review case.

Cortez v. McCauley, 478 F.3d 1108 (10th Cir. 2007) (en banc) In action brought under 42 U.S.C. § 1983 for unlawful arrest and unreasonable search and seizure, on review of partial summary judgment on qualified immunity grounds, holding that officers were on reasonable notice that their warrantless arrest violated the Fourth Amendment and was not

Akins v. Radiator Specialty Co., No. Civ. A 3:05-451, 2006 WL 2850444 (W.D. Pa. Sept. 29, 2006) Granting the Plaintiff’s motion for remand in a toxic tort Benzene exposure case based on a lack of complete federal preemption. Leighton Durham, Partner and Kirk L. Pittard, Partner

Perez v. Kleinart, 211 S.W.3d 468 (Tex. App.—Corpus Christi 2006, no pet.)    Reversing a defense verdict in a personal injury case and remanding for a new trial. Thad D. Spalding, Partner

Mireles v. Ashley, 201 S.W.3d 779 (Tex. App.—Amarillo 2006, no pet.) Reversing and remanding the trial court’s granting of a no evidence summary judgment in a negligent hiring case.  Kirk L. Pittard, Partner and Leighton Durham, Partner

Ex parte M.R.R., 223 S.W.3d 499 (Tex. App.—Amarillo 2006, pet. dism’d) Successfully affirmed judgment of expunction by defeating State’s argument that statutory limitation period does not apply to misdemeanor arrests Thad D. Spalding, Partner

Dallas County v. Hughes, 189 S.W.3d 886 (Tex. App.—Dallas 2006, pet. denied) Affirming the denial of Dallas County’s Plea to the Jurisdiction.  Kirk L. Pittard, Partner

Tijerina v. Mackie, No. 04-05-00213-CV, 2006 WL 397936 (Tex. App.—San Antonio Feb. 22, 2006, pet. denied) (mem. op.)  Affirming appellate jurisdiction of interlocutory appeal from probate order.

State v. Romero, 142 P.3d 887 (N.M. 2006) (representing amicus curiae) Holding that State does not have jurisdiction to prosecute enrolled tribal members for alleged crimes occurring within the exterior boundaries of an Indian Pueblo. Caren I. Friedman, Partner

Padilla v. Wall Colmonoy Corp., 145 P.3d 110 (N.M. Ct. App. 2006) On interlocutory appeal, affirming denial of employer’s motion to dismiss wrongful death case arising from workplace injury; retroactively applying Supreme Court precedent stating that exclusivity provision of Workers’ Compensation Act does not protect employer from tort suit where employer willfully or intentionally injures

Coleman v. City of Las Cruces, 137 P.3d 670 (N.M. Ct. App. 2006) Affirming jury verdict for injured pedestrian, holding that a plaintiff is not required to name an individual public employee as a defendant to recover damages under the Tort Claims Act; naming only a governmental entity is sufficient. Caren I. Friedman, Partner

Burrell v. Armijo, 456 F.3d 1159 (10th Cir. 2006) Holding that Indian Pueblo did not waive its sovereign immunity on breach of lease claim, and tribal officials were not liable under 42 U.S.C. § 1983 for actions taken under color of tribal law. Caren I. Friedman, Partner

Zurich American Ins. Co. v. Gill, 173 S.W.3d 878 (Tex. App.—Fort Worth 2005, pet denied) Affirming claim for workers compensation benefits when carrier does not comply with statutory deadlines for denying a claim. Kirk L. Pittard, Partner

Redland Ins. Co. v. Southwest Stainless, L.P., 181 S.W.3d 509 (Tex. App.—Fort Worth 2005, no pet.) Upheld judgment against surety on payment bond where surety complained of technical notice given to general contractor Thad D. Spalding, Partner

Audino v. Raytheon Co. Short Term Disability Plan, 129 Fed. App’x 882 (5th Cir. 2005) Obtained reversal of a summary judgment granted against a plaintiff in an ERISA benefits dispute action. Leighton Durham, Partner

Carroll v. Bank of New York, No. 10-03-00319-CV, 2005 WL 241224 (Tex. App.—Waco Feb. 2, 2005, no pet.) Appeal of a forcible entry and detainer action. Leighton Durham, Partner and Kirk L. Pittard, Partner

Williams v. Stewart, 112 P.3d 281 (N.M. Ct. App. 2005) In class action brought by family members of decedents whose body parts were taken surreptitiously and used in experiments at Los Alamos National Laboratory to test plutonium levels, reversing summary judgment on statute of limitation grounds granted in favor of physician who performed autopsies in

In re Mousa, No. 01-04-00485-CV, 2004 WL 2823172 (Tex. App.—Houston [1st Dist.] Dec. 9, 2004, orig. proceeding) (mem. op.) Obtaining writ of mandamus dissolving improperly filed lis pendens.

Leal v. Weightman, No. 01-03-01006-CV, 2004 WL 2251570 (Tex. App.—Houston [1st Dist.] Oct. 7, 2004, no. pet.) (mem. op.)  Affirming grant of summary judgment for return of money loaned on three out of four grounds; case subsequently dismissed.

Lisanti v. Dixon, 147 S.W.3d 638 (Tex. App.—Dallas 2004, pet. denied) Affirming a punitive damages award in a Sabine Pilot wrongful termination case. Kirk L. Pittard, Partner

Gibson v. Ellis, 126 S.W.3d 324 (Tex. App.—Dallas 2004, no pet.) Upheld jury verdict in favor of defendant attorney in legal malpractice case, including award of sanctions in favor of defendant attorney Thad D. Spalding, Partner

Gallardo v. Ugarte, 145 S.W.3d 272 (Tex. App.—El Paso 2004, pet. denied)  Involved the reversal of a dismissal of a medical malpractice case concerning the adequacy of a 4590i expert report. Kirk L. Pittard, Partner

Ter-Vartanyan v. R&R Freight, Inc., 111 S.W.3d 779 (Tex. App.—Dallas 2003, pet. denied) Upholding admissibility of expert reconstruction testimony of investigating officer Thad D. Spalding, Partner

Hoffman-LaRoche, Inc. v. Kwasnik, 109 S.W.3d 21 (Tex. App.—El Paso 2003, orig. proceeding) Successfully defended a trial court’s order denying Hoffman-LaRoche, Inc.’s special appearance. Leighton Durham, Partner

Johannsen v. Nabors Indus., Inc., No. 14-03-00056-CV, 2003 WL 1566560 (Tex. App.—Houston [14th Dist.] Mar. 27, 2003, no pet.) (mem. op.)  Obtaining determination that judgment that did not include attorney fee award was final, and attorney fees were no longer available.

Ebbert v. DaimlerChrysler Corp., 319 F.3d 103 (3d Cir. 2003) Reversing summary judgment for employer in suit brought by employee under the Americans with Disabilities Act. Caren I. Friedman, Partner

Fenney v. Dakota, Minnesota & Eastern R.R. Co., 327 F.3d 707 (8th Cir. 2003) Reversing summary judgment for employer in suit brought by employee under the Americans with Disabilities Act. Caren I. Friedman, Partner

Brown & Root, Inc. v. Moore, 92 S.W.3d 848 (Tex. App.—Texarkana 2002, pet. denied)  Affirming a punitive damages award in an asbestos case. Kirk L. Pittard, Partner

Long Distance Intern., Inc. v. Telefonos de Mexico, S.A. de C.V., 49 S.W.3d 347 (Tex. 2001) Obtaining reversal of summary judgment based on interpretation of repealed Mexican telecommunications regulation. 

EEOC v. J.H. Routh Packing Co., 246 F.3d 850 (6th Cir. 2001) Reversing judgment on the pleadings entered in favor of company charged with discrimination under the Americans with Disabilities Act. Caren I. Friedman, Partner

EEOC v. Roadway Express, Inc., 261 F.3d 634 (6th Cir. 2001) Affirming order to show cause to compel compliance with subpoena due to company’s failure to turn over documents relevant to Commission’s charge of race and sex discrimination. Caren I. Friedman, Partner

Pollard v. E.I. DuPont de Nemours & Co., 532 U.S. 843 (2001) (representing EEOC as co-counsel with Solicitor General on behalf of United States as amicus curiae) In Title VII hostile work environment claim, holding that front pay is not an element of compensatory damages subject to the statutory cap in the Civil Rights Act

Farrell v. Planters Lifesavers Co., 206 F.3d 271 (3d Cir. 2000) (representing amicus curiae) In Title VII case, holding that district court applied wrong standards in determining that employee failed to establish a prima facie case of retaliation and quid pro quo sexual harassment; reversing in part summary judgment for employer. Caren I. Friedman, Partner

EEOC v. W & O, Inc., 213 F.3d 600 (11th Cir. 2000) Affirming awards of punitive damages to class of women under the Pregnancy Discrimination Act against employer who had a written policy barring pregnant waitresses from waiting tables past their fifth month of pregnancy; concluding that there was sufficient evidence for jury to find

EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373 (4th Cir. 2000) Reversing summary judgment for employer in suit brought under the Americans with Disabilities Act; in spite of plaintiff’s statement in Social Security Disability Insurance application about her inability to work, the Commission was not estopped from asserting that plaintiff was a qualified individual with

Perseus, Inc. v. Canody, 995 S.W.2d 202 (Tex. App.—San Antonio, 1999, no pet.) Affirming judgment in favor of plaintiff in dram shop case tried to a verdict.

Valdes v. Wal-Mart Stores, Inc., 158 F.3d 584, 1998 WL 648571 (5th Cir. 1998) (not designated for publication)  Reversing and remanding for lack of subject matter jurisdiction on ground that non-diverse store manager owed independent duty to premises plaintiff.

Isbell v. Ryan, 983 S.W.2d 335 (Tex. App.—Houston [14th Dist.] 1998, no pet.) Reversing summary judgment granted on negligent supervision cause of action.