Successfully convinced court of appeals to dismiss officers’ qualified immunity appeal for lack of jurisdiction in light of material factual disputes regarding the officers’ use of force. The Fifth Circuit determined that video of the incident did not conclusively establish reasonable force, and that the law clearly established that officers’ use of force was excessive force in circumstances consistent with the Plaintiff’s version of events.
Successfully reversed trial court’s grant of summary judgment to police officer, holding that the officer was not entitled to summary judgment on his qualified immunity defense when he shot and killed an unarmed driver during a pretextual traffic stop.
Successfully defeated mandamus petition seeking to modify trial court’s order allowing defendant to conduct Rule 204 physical examination of the plaintiff, but requiring that it be performed by telemedicine.
Assisted with briefing and strategy in defeating nursing home’s effort to overturn $11M verdict and, on cross-appeal, reinstating a jury finding that the various defendant-entities operated as a joint venture, making them all responsible for the nursing home’s conduct.
Successfully reversed a take-nothing judgment and remanded for a new trial in case against defendant-homeowners whose pizza oven exploded and burned Joseph Cobb. The court of appeals determined that the trial court committed reversible error when it failed to submit Cobb’s negligent activity claim to the jury, which was supported by the homeowner’s request that Cobb light the oven without advising him how to do so safely and the homeowners’ failure to render aid to Cobb following the explosion.
Successfully convinced court of appeals to dismiss medical provider’s interlocutory appeal for lack of subject matter jurisdiction where trial court granted the statutorily-provided 30-day extension to cure alleged deficiencies in the plaintiff’s Ch. 74 expert report.
Overruling Philbrook v. Berry, 683 S.W.2d 378 (Tex. 1985), and clarifying that a motion for new trial filed in the original cause is nonetheless sufficient to extend the appellate deadlines in a severed, final judgment, and clarifying the application of stare decisis generally and in cases transferred from one court of appeals to another.
Successfully moved for reconsideration of denial of motion to remand on behalf of a client who was seriously injured by a commercial motor vehicle in Lea County, New Mexico. On reconsideration, the district court agreed that federal diversity jurisdiction requires diversity to exist at both the time an action is filed in state court and the time it is removed to federal court. Because the parties were non-diverse at the time of removal, remand to state court was required.
Finding that expert report satisfied Chapter 74 of the Texas Civil Practice and Remedies Code and reversing court of appeals’ opinion to the contrary, confirming that Chapter 74’s “‘fair summary’ benchmark is not an evidentiary standard.”
Dismissing police officer’s interlocutory appeal of qualified immunity defense in case in which Balch Springs police officer, Roy Oliver, fired into a car of teenagers leaving a party, killing Jordan Edwards. The Fifth Circuit found that it had no jurisdiction to review the district court’s denial of summary judgment because of material fact disputes regarding whether the vehicle was a threat at the time that Oliver shot into the car.
Assuming, without deciding, that a motor vehicle collision involving an ambulance presented a health care liability claim, the court of appeals found that the plaintiffs’ preliminary expert reports satisfied the health care liability act when a paramedic outlined how the standard of care and breach caused the crash while a forensic pathologist linked the breach to the deceased plaintiff’s injury and death. In so holding, the court of appeals rejected the ambulance company defendant’s argument that a physician was required opine on the cause of the collision, observing that under Chapter 74 a physician need only opine on the cause of the injury, harm, or damages claimed.
Successfully defeated mandamus petition related to trial court’s new trial order.
Successfully defeated mandamus petition related to trial court’s striking of responsible third party.
Successfully reversed plea to the jurisdiction that dismissed plaintiff’s case, holding that diligence in service of process is not a jurisdictional “statutory prerequisite to a suit” under the Texas Tort Claims Act.
Congratulations to Cynthia Huerta, David Glenn, Reed Morgan, Jake Glenn, and Kirk Pittard for their $1,265,000 jury verdict in Johnson County late 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.
Successfully convinced New Mexico Court of Appeals to reverse the final decree in a domestic relations case where district court violated the Rules of Civil Procedure by failing to conduct a hearing on mother’s objections to a domestic relations hearing officer’s recommendations regarding child custody.
Affirming denial of Chapter 74 motion to dismiss and holding that trial court properly considered amended expert reports that plaintiff filed within 120 days of defendant’s answer.
Affirming trial court’s order denying special appearance by an aircraft manufacturer in a wrongful death products liability case. The plaintiff’s husband was killed when his aircraft crashed in Bexar County. The Minnesota-based aircraft manufacturer challenged the court’s exercise of specific personal jurisdiction, arguing that the manufacturer lacked the necessary minimum contacts with Texas because the plaintiff’s claims did not arise from or relate to any purposeful activity it conducted in Texas. The Court of Appeals, citing the recent U.S. Supreme Court decision, Ford Motor Co. v. Mont. Eighth Jud. Dist. Ct., and the recent Texas Supreme Court decision, Luciano v. SprayFoamPolymers.com, LLC, rejected the aircraft manufacturer’s arguments and held that the the exercise of specific personal jurisdiction was proper.
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.
In wrongful death case arising out of an airplane crash, Independent Executrix of pilot’s estate objected to the Texas court’s exercise of jurisdiction over her because, she argued, she was not a citizen of Texas and the pilot’s estate had been informally closed before the lawsuit was filed. The court of appeals rejected this argument, affirming the trial court’s conclusion that the Independent Executrix failed to meet her evidentiary burden to prove that her administration of the pilot’s Estate had been informally closed as a matter of law.
Successfully prevented the deposition of a severely impaired plaintiff before an examination to determine competency. An issue of first impression, the Fort Worth Court of Appeals found that Texas Rules of Evidence 104 and 601 apply to and impose a duty on trial courts to examine a deposition witness to determine his competency before the witness is deposed, and that the trial court abused its discretion by compelling the deposition without first conducting that examination.
Successfully obtained reversal and remand of Court of Appeals’ decision that the State had failed to timely disclose evidence.
Successfully defeated petition for writ of mandamus filed by Defendants who did not want to answer discovery related to financial transactions among themselves in the face of allegations of fraudulent transfers.
Successfully convinced court of appeals that summary judgment based on the Workers’ Compensation Act’s exclusive remedy provision was not proper where fact issues existed as to whether killed and injured passengers’ travel from drilling site to bunkhouse originated in or related to Amerimex’s business.
Successfully convinced court of appeals to reverse summary judgment in favor of oil well services company as to its vicarious liability for collision caused by a worker returning to remote well site after purchasing necessary supplies. The court of appeals found fact issues existed as to both the existence of an employment relationship and whether the worker was acting in the course and scope of his employment.
Successfully defended trial court’s order granting motion to quash discovery sought, pursuant to In re North Cypress, “of the fees charged and accepted from other patients for the same medical services that were provided or recommended to the plaintiff,” holding that In re North Cypress was readily distinguishable.
Successful defense of Chapter 74 medical expert report by radiologist who testified regarding physician’s failure to diagnose Plaintiff’s breast cancer.
Obtained petition for review of Court of Appeals’ decision that affidavit was not properly sworn.
In a domestic relations appeal arising under the Uniform Child Custody Jurisdiction and Enforcement Act, the New Mexico Court of Appeals unanimously affirmed the judgment, including an attorney fee award.
On motion for rehearing en banc, successfully convinced panel 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. The court of appeals rejected 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.” A matter of first impression, 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.
Denial of State Farm’s mandamus petition seeking to avoid discovery in the uninsured/underinsured motorist context. In doing so, the court of appeals discusses at length the distinction between a breach of contract claim against the UM/UIM insurer and common law or statutory claims for breach of duties of good faith and fair dealing. Noting a distinction based on the historical development of the claims and their accrual, the court of appeals found that Brainard does not foreclose such claims. Rather, another line of cases, beginning with the Texas Supreme Court’s opinion in Arnold (and modified later by Murray), which hold that the insurer’s duties of good faith and fair dealing can accrue prior to a judgment that would trigger the insurer’s contractual liability, controls and allows such claims, and supported the trial court’s order compelling discovery related to the insurer’s claims-handling practices.
Successfully convinced the New Mexico Supreme Court to reinstate Plaintiffs’ appeal that was wrongly dismissed as untimely by the New Mexico Court of Appeals. 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.
In this 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.
Successfully reversed a Chapter 74 dismissal, holding that a cardiologist with hospital administration experience was qualified to opine as to a hospital’s policies and procedures for providing cardiac care.
Successfully dismissed interlocutory appeal for lack of jurisdiction by independent contractor who contracted with a government entity to manage a nursing home. Claiming derivative sovereign immunity, the contractor sought to appeal the trial court’s denial of its plea to the jurisdiction. 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.
Affirming $216,000 judgment following a jury trial for injuries suffered when plaintiff was struck by a community center van. The court rejected the center’s challenge to the jury’s damage awards for medical expenses and physical impairment, and also rejected center’s claim that all damages were capped by the Texas Tort Claims Act’s $100,000 liability limit that applies to a “unit of local government,” as opposed to the Act’s $250,000 cap applicable to the “state government.”
Affirming denial of second Chapter 74 motion to dismiss filed by operators of facilities for young people with mental disabilities filed after unsuccessful appeal of the first Chapter 74 motion to dismiss, finding the law of the case doctrine barred second motion to dismiss based on the same facts.
Working with trial counsel The Tracy Firm and Williams Injury Law on behalf of a minor client who was seriously injured in a rollover, DP&S defeated Defendant Ford Motor Company’s motion to dismiss on personal jurisdiction grounds. As it had in past cases, the Court rejected Ford’s arguments that its contacts in New Mexico were insufficient to confer specific jurisdiction, and that its registered agent in New Mexico did not equate to consent jurisdiction.
Reversing plea to the jurisdiction and affirming the denial of an identical plea in another case, filed by GTECH, a private contractor hired to provide instant ticket manufacturing and services to the Texas Lottery Commission. Following its prior opinion in Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117 (Tex. 2015), the Court determined that because GTECH had discretion with regard to game design, and the Lottery Commission did not control the manner in which that work was performed, GTECH was not entitled to immunity.
Successfully defeated motion to dismiss filed by Defendant Novartis Pharmaceuticals Corp. in a case alleging that Novartis hid serious side effects of its blood cancer drug Tasigna, finding that the plaintiff was not required to preemptively refute Novartis’ affirmative defenses by alleging the exact date he was diagnosed with the drug’s side effects.
Affirming denial of Chapter 74 motions to dismiss filed by various health care providers, finding that challenged experts were qualified and that their reports satisfied Chapter 74’s gatekeeping functions in all respects.
Successfully reversed summary judgment in majority shareholders’ favor and rendered summary judgment in favor of minority owner in a closely -held corporation, holding that Retiring Shareholder provision of Cross Purchase Agreement required remaining shareholders to purchase retiring shareholder’s shares. In doing so, Court of Appeals rejected majority shareholders’ arguments that (1) provision created only an option, but not an obligation, to purchase retiring shareholder’s shares and (2) that minority shareholder was not a “retiring” shareholder because majority shareholders terminated his employment with the closely-held corporation and minority shareholder had taken employment elsewhere.
Successfully reversed no evidence and traditional summary judgment in a dog bite case, convincing court of appeals that 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.
Successfully dismissed an appeal from a 2014 default judgment for lack of jurisdiction, rejecting the defendants’ argument that the default judgment was interlocutory because an unserved defendant was never nonsuited. The court concluded that the default judgment was final because the plaintiff had abandoned all remaining claims against the unserved defendant.
Successfully defeated appeal by client’s incarcerated ex-husband who complained about the notice given him of a bench trial on his partition suit, and who complained about a motion for continuance of that trial so that the ex-husband could conduct more discovery. The court of appeals determined that the ex-husband was provided adequate notice and opportunity to appear at his trial, and that the ex-husband’s motion did not warrant a continuance of trial.
Working with trial counsel Paul Hultin and the New Mexico Environmental Law Center, who had previously secured an important ground water victory after a 2-week bench trial on behalf of the San Pedro Creek Homeowners’’ Association and other homeowners, DP&S prevailed on a bill of costs in the amount of $379,854.05, plus post-judgment interest. The cost bill was opposed by Aquifer Science and the Office of State Engineer (“OSE”), and the Court rejected arguments made by both parties in favor of DP&S’ clients. The Court further denied motions to reconsider filed by both Aquifer Science and the OSE following the ruling. DP&S continues to serve as lead appellate counsel in this case pending in the New Mexico Court of Appeals.
Caren I. Friedman, Partner, Justin R. Kaufman, Partner, and Rosalind Bienvenu, Partner
Denying mandamus relief, finding that trial court did not abuse its discretion in striking responsible third party designation by owner of gas facility of former minority-interest owner and contract-operator. 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.
Reversed and rendered take nothing judgment on claims of constructive eviction, finding that landlord-tenant relationship no longer existed at the time the former tenant was locked out of the property, and no evidence that the tenant abandoned the property based on the conduct of the landlord.
Affirmed summary judgment in favor of ex-husband on ex-wife’s assault claims based on prior settlement agreement that includes those same claims as part of parties’ divorce.
DP&S assisted trial counsel Hossley & Embry in prevailing on a motion to dismiss filed by Defendant Bayerische Motoren Werke, AG (“BMW AG”). BMW AG argued that it could not be subject to jurisdiction in New Mexico as a German entity lacking substantial contacts with the United States and New Mexico in particular. After two hearings and two rounds of legal briefs, the Court held that BMW AG was subject to specific personal jurisdiction in New Mexico’s courts and denied BMW AG’s motion to dismiss.
Court held 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.
Successfully affirmed $2.15m verdict, with court of appeals upholding jury finding of negligence based on general contractor’s retention of contractual control over subcontractor, even where jury found that general contractor did not retain actual control. Court of appeals also upheld jury’s “no” answer to the plaintiff’s contributory negligence and past and future medical expenses.
DP&S worked with trial counsel Sico Hoelscher Harris LLP on legal research, briefing, and strategy on various pre-trial motions including motions to exclude plaintiffs’ experts, a motion for spoliation sanctions against defendants, and a motion to exclude a defense expert. After securing favorable rulings, the case settled before trial for an undisclosed sum.
On behalf of The Tracy Firm, DP&S successfully defeated Defendant Mitsubishi Motors Corp.’s Motion to Dismiss for Lack of Personal Jurisdiction. The Defendant had argued that New Mexico’s courts could not exercise specific jurisdiction over Mitsubishi due to its limited contacts in New Mexico and its presence in Japan, working through a U.S.-based distributor. The Court disagreed, adopting the argument advanced by DP&S, that under current and established New Mexico case law, the exercise of specific jurisdiction over Defendant was proper and denied the motion.
On behalf of trial counsel The Tracy Firm and Keller & Keller, successfully defeated Defendant Ford Motor Company’s personal jurisdiction challenge in this wrongful death/products liability case. Ford argued that it should not be subject to the jurisdiction of New Mexico’s courts under a specific jurisdiction analysis, and further it argued that its registration as a foreign corporation doing business in New Mexico did not equate to consent jurisdiction. DP&S was able to convince the court that Ford was wrong on both counts under existing New Mexico and U.S. Supreme Court precedent. The court held that Ford was subject to specific jurisdiction under the “stream of commerce” theory, and that Ford’s compliance with New Mexico’s Business Corporation Act meant that Ford had consented to jurisdiction in New Mexico.
After a two-week trial, DP&S partner, Kirk Pittard, along with a trial team that included Steve Laird, Seth McCloskey, Tim Brandenburg, and Pete Kestner, 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.
DP&S’s Justin Kaufman and Rosalind Bienvenu worked with the trial team from Sico Hoelscher Harris LLP (Craig Sico, David Harris, and Louie Cook) in a two-week trial in Santa Fe, New Mexico that resulted in a significant plaintiff’s verdict. The case was brought on behalf of the Armijo family, who lost Kathryn Armijo when a new Werner Enterprises driver lost control of an 18-wheeler on a highway in southern New Mexico, crossed over multiple lanes of travel, and struck Ms. Armjio’s vehicle as she was driving home from work. The case settled for a confidential amount shortly after the verdict.
In matter of first impression, affirming denial of Chapter 74 motions to dismiss filed by newly-added nurses, holding that for purposes of section 74.351(a), an action does not commence as to each defendant until it is first named as a defendant.
Working with trial counsel Guajardo & Marks, helped defeat Defendant Paccar, Inc.’s Motion to Dismiss for Lack of Jurisdiction. The court approved of Plaintiff’s argument that Defendant Paccar Inc.’s compliance with the New Mexico Business Corporation Act constitutes consent to be sued in New Mexico for the purposes of personal jurisdiction.
Affirming judgment following a jury trial concerning personal injuries suffered in an automobile collision. In addition to rejecting the defendant’s many challenges to the jury’s causation and damage findings, the court of appeals also rejected an evidentiary argument regarding the improper admission of liability insurance, concluding that the defendant failed to show that the admission of such evidence caused rendition of an improper judgment.
Obtained reversal on en banc reconsideration holding that issue previously decided on appeal was not properly raised.
In this hail damage case, the Texas Supreme Court effectively overruled the so-called Brashears rule to preserve a Texas Prompt Pay Act claim following an appraisal award in certain circumstances. The Court was fractured with 5 justices in the majority, 1 justice concurring in part and dissenting in part, and 3 justices dissenting. Justice Green authored the opinion of the Court.
Under the Texas Tort Claims Act, the State’s sovereign immunity is waived if a negligent decision is coupled with use of tangible personal property and the use proximately causes injury. Because the Act does not require that the tangible personal property be used in a negligent manner in order to waive sovereign immunity, the Texas Supreme Court held that the hospital’s use of an improper solution during a chemotherapy procedure was sufficient to waive immunity.
Successfully defeated a healthcare provider’s petition for review to the Texas Supreme Court by providing merits briefing demonstrating that because the expert report satisfied Chapter 74 of the Texas Civil Practice and Remedies Code’s requirements regarding standard of care and causation as to an estate’s survival claim, the trial court did not abuse its discretion by also allowing a wrongful death claim to proceed.
Successfully upheld an order denying a motion to transfer venue in a Texas Dram Shop Act case from Dallas County to Tarrant County on the basis that the plaintiffs had properly pleaded a cause of action against an employee of a bar who resided in Dallas County at the time of the incident. In an issue of first impression, the court of appeals unanimously held 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.
Successfully defeating Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, re-affirming that a foreign corporation’s registration to do business in the state constitutes consent to New Mexico personal jurisdiction.
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 (Aquifer Science) application to withdraw ground water in the East Mountains near Albuquerque. In reviewing the application de novo, Judge Shannon Bacon not only agreed with the local landowners who protested the permit that withdrawing the proposed amount of water would significantly impair existing water rights with no feasible mitigation plan, but also concluded that the developer’s application was “contrary to conservation of water within the state,” in violation of NMSA 72-12-3’s requirements. In denying the application, the court rejected Aquifer Science’s claim that that its plan achieved “conservation” by building golf courses as a place to reuse wastewater and determined that Aquifer Science’s other plans to conserve water through efficient appliances, fixtures, and landscaping were “speculative.” The court also concluded that the developer’s failure to consider the impact of climate change on the supply of surface water—and, thus, ground water—when calculating water demand “suggests a lack of long-term planning regarding conservation.”
In dispute between commercial property neighbors, successfully convincing the court of appeals to reverse and render a take-nothing judgment on a jury verdict awarding lost rental income for breach of a settlement agreement, finding legally insufficient evidence to support the loss of rental income damage award.
Successfully reversing court of appeals’ judgment and finding that expert report adequately addressed both causation and the applicable standard of care under Chapter 74 of the Texas Civil Practice and Remedies Code and, importantly, confirming that the purpose of a claimant’s expert report is simply to “weed out frivolous malpractice claims in the early stages of litigation, not to dispose of potentially meritorious claims.”
Successfully defending trial court’s denial of an untimely motion to dismiss pursuant to the Texas Citizens’ Participation Act (the anti-SLAPP statute), finding the 60-day deadline to file the motion was not reset by an amended pleading that “d[id] not alter the essential nature” of the trade secret claim, “of which appellants had notice in the original petition.”
As a matter of first impression, holding that wife had no community lien interest in asset of irrevocable trust – a life insurance policy with a net death benefit over $5 million – where husband created and funded the trust prior to marriage.
Approving sufficiency of expert’s report under Chapter 74, rejecting attack on “believability” of expert’s preliminary report, and holding that a board-certified orthopedic surgeon is qualified to offer an opinion as to the standard of care required of an emergency physician prescribing crutches, even though surgeon was not an emergency physician.
Reversing the dismissal of a civil rights case arising out of a sixth-grade assistant principal’s “mass, suspicionless strip search of the underwear of twenty-two preteen girls” in an effort to find a missing $50, finding that the search violated the girls’ constitutional rights under Texas and federal law.
Successfully upholding judgment, under a clear and convincing evidence standard, terminating parental rights and imposing permanent injunction against a father convicted of child pornography, and placing the child with her grandparents.
Reversing summary judgment in a slip-and-fall case, 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.
In a case of first impression, the Texas Supreme Court affirmed the right of a person who is wrongfully accused and later acquitted of a crime to have the records related to that arrest expunged—even though the person was also arrested on an unrelated offense, to which she pled guilty. In affirming the opinion of the Dallas Court of Appeals, the Texas Supreme Court rejected the State’s “arrest based” interpretation, expressly disagreeing with numerous courts of appeals that had adopted this same interpretation. Instead, the Texas Supreme Court concluded that the statute’s plain language is not arrest-based and therefore does not prohibit the expunction of records related to an acquitted offense, even where the arrest includes another, unrelated offense.
Successfully reversed summary judgment in favor of insured and insurer after defense counsel assigned by insurer agreed to settlement of claims but insured withdrew consent, where insurance policy was a non-consent policy which gave insurer unilateral right to settle case and insured no right to consent or, in this case, withdraw consent.
Successfully reversed summary judgment awarding law firm unpaid attorney’s fees based on law firm’s failure to conclusively establish the reasonableness of fees charged to its former client.
Successfully reversed court of appeals opinion in dispute over vicarious liability of drilling company for its employee’s conduct in driving drilling crew to and from drill site. Texas Supreme Court holds that “right to control” test is not an applicable or necessary part of the course-and-scope analysis once the employer-employee relationship is established.
Holding that a funeral home owes a common law duty to a deceased’s next of kin to not mishandle the deceased’s body and that such a duty need not be based on the existence of a contract.
Reversing parental rights conferred on former husband of biological mother where child already had two legal parents, biological mother and biological father; reversing sanctions imposed on biological parents for taking their child on a family vacation that allegedly interfered with former husband’s scheduled visitation.
Successfully defeating hospital’s mandamus petition challenging a trial court order taking judicial notice of administrative rules promulgated by the Texas Medical Board.
Successfully defended medical providers’ appeal, challenging the plaintiff’s Chapter 74 expert reports in a case in which the medical providers’ negligence resulted in the amputation of the plaintiff’s leg.
Successfully challenged trial court’s grant of judgment notwithstanding a verdict following a jury trial in which the jury determined there to be no contract between BoRain and Hashmi. The court of appeals found that the trial court erred in granting judgment notwithstanding the verdict, reversed the trial court’s judgment, and rendered judgment that Hashmi take nothing.
Successfully defended summary judgment granted in favor of lawyers against former client arising out of client’s settlement of personal injury claims.
Successfully defended summary judgment in favor of landlord for unpaid rent by commercial tenant who terminated lease early, but failed to pay full amount of rent owed. Tenant argued that landlord did not sufficiently mitigate its damages by giving new tenant first two months free, and therefore was not required to pay rent it owed for those months. The Dallas Court of Appeals rejected this argument.
In complex multi-jurisdictional same-sex custody battle, reversing district court’s finding that petition should be heard in Oklahoma and remanding for adjudication of parentage of biological mother’s former domestic partner.
In a case of first impression, the court of appeals affirmed an order granting the expunction of records relating to an arrest for felony aggravated assault for which T.S.N. was subsequently acquitted. The State, claiming that the entire expunction statute is “arrest based,” argued that the records could not be expunged because, when T.S.N. was arrested, she was also arrested on a totally unrelated misdemeanor theft charge to which she ultimately pled guilty. The court of appeals rejected this “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.
Reversed and rendered judgment following permissive appeal, holding that section 74.153 of the Civil Practice and Remedies Code, which applies a lower “willful and wanton” standard of care to medical care provided in a hospital emergency room does not apply to medical care provided an expectant mother in an obstetrical unit.
Successfully defended Texas and Louisiana courts’ determination that, while Texas court had jurisdiction as the child’s “home state” under the Uniform Child Custody Jurisdiction and Enforcement Act, Louisiana court was the more convenient forum and therefore could exercise jurisdiction over child custody determination.
Dismissing appeal pursuant to vexatious litigant statute, where Hornbuckle repeatedly filed lawsuits contesting the foreclosure on a specific piece of real property in Arlington, Texas, including this case. The court of appeals concluded that the trial court’s dismissal of the underlying lawsuit was proper, and dismissal of Hornbuckle’s appeal was proper pursuant to Texas Civil Practice and Remedies Code Ch. 11.
In appeal involving validity of abstract of judgment, court of appeals found that abstract filed under Hispanic judgment debtor’s maternal surname was sufficient to give notice of the judgment to the public.
In a personal injury case arising out of faulty construction of family’s new home, the court of appeals reversed the trial court’s judgment which dismissed the parents’ claims for failing to disclose the claims in bankruptcy. The court of appeals also reversed the trial court’s award of sanctions under the DTPA, finding that the children’s DTPA claims were not groundless.
In common law trademark case, upholding jury’s findings of secondary meaning, trademark infringement, trademark dilution, and unfair competition, and award of lost profits, disgorged profits, and permanent injunctive relief.
In suit affecting the parent-child relationship (SAPCR) in which grandparents sought managing conservatorship over the child, court of appeals concluded 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.
In a commercial fraud-by-nondisclosure case involving the development and operation a fried chicken franchise, Houston’s Fourteenth Court of Appeals upheld the award of nearly $600,000 in damages–including $100,000 in exemplary damages.
Affirming trial court’s denial of City’s plea to the jurisdiction arising out of injuries suffered when a City of Houston police dog attacked and injured a minor. The court of appeals held that use of the police dog was not an intentional tort, but the negligent use of tangible personal property for which the Texas Tort Claims Act waived immunity.
Affirming arbitration award and rejecting argument that arbitration award should be vacated based on manner in which attorney’s fees records were submitted, and rejecting argument that award regarding interest in patents was unenforceably vague.
Upholding a post-answer default judgment in a divorce proceeding, where the appellant attempted to challenge the judgment on due process grounds, but failed to file a motion for new trial or introduce evidence satisfying the Craddock factors.
Affirming trial court’s ruling refusing to dismiss medical malpractice case based on the defendants’ challenge to the Chapter 74 expert reports.
Reversing error of district court in awarding windfall of parcel of land in boundary dispute between neighboring ranchers.
In a breach of contract case arising out of the sale of a helicopter, the Fifth Circuit vacated the District Court’s sua sponte grant of summary judgment against the buyer on a notice of revocation/rejection of acceptance issue never raised by the seller, finding that the District Court abused its discretion by not considering the evidence of rejection or revocation presented by the buyer in its Rule 59(e) motion.
Dismissing interlocutory appeal, originating from claim that collision with cow owned by a former doctor was really a health care liability case that required a Chapter 74 expert report, and sanctioning doctor and his attorney for refusing to dismiss frivolous appeal.
Successfully convinced court of appeals that housekeeper’s claim for injuries suffered when medical center employer required her to lift very heavy items was not a health care liability claim to which Chapter 74 of the Texas Civil Practice and Remedies Code applied.
Denying mandamus relief and requiring the production of electronically stored information in native or near native format.
Affirming almost the entirety of a judgment in excess of $800,000 in a nonsubscriber case against a negligent employer. In addition to raising the usual factual and legal sufficiency arguments regarding the liability and damage findings, the defendant also raised points relating to the financing of the medical expenses, the exclusion of certain evidence, improper jury argument, and charge error, all of which were overruled by the court of appeals.
Upholding 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.
Affirming a $1.1 million judgment in favor of injured Kroger employee following an incident in which he lost four fingers on his dominant hand, and in the process rejecting Kroger’s arguments, among many others, 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.–based on the Texas Supreme Court’s recent opinion in Austin v. Kroger.
Upholding judgment on jury verdict in favor of employee injured by railroad, rejecting railroad’s challenge to admission of evidence of subsequent remedial measures and of injuries to other railroad employees.
Reversing reckless child abuse conviction and 18-year term of imprisonment of father whose baby died while in his care.
Reversing trial court’s dismissal of a medical malpractice case, concluding that trial court abused its discretion in doing so and that the Chapter 74 expert report sufficiently demonstrated a causal relationship between the physician’s negligence and the death of Mr. Mitchell.
Kirk L. Pittard, Partner and Leigh Prichard Bradford, Of Counsel
A custodian employed by a cleaning company was injured when an elevator malfunctioned in a nursing home facility where she was working; following the recent decision in Ross v. St. Luke’s, the court held there was no“substantive nexus” between Rodriguez’s claims relating to the nursing home’s maintenance of its elevator and Brazos Manor’s provision of health care.
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.
Private engineering firm retained by a governmental entity to design and build a toll road asserted “derivative sovereign immunity” protects it from liability for a three-fatality accident caused by negligent design. The Supreme Court declined to expand the doctrine of governmental immunity to include government contractors, allowed the suit against the engineering firm to proceed.
Though, as expected, the court modernized the law to allow evidence of non-use of seat belts, ensured that such evidence needs to be supported by expert testimony; case remanded to court of appeals, with judgment intact, to determine whether defense evidence met Daubert standards.
Denial of emergency motion to stay and mandamus relief in a case in which the trial court granted a new trial based on its finding that the jury’s defense verdict was against the great weight and preponderance of the evidence.
Reversing “draconian” use of summary judgment procedure as antithetical to New Mexico’s approach.
Successfully defended against petition for discretionary review in the Texas Supreme Court finding that the trial court correctly interpreted the State’s statutory conceal-carry requirements.
Obtained reversal and remand of trial court dismissal order on ground that failure to pay “front pay” discovery sanctions could not become basis for death penalty sanction.
Successfully defeated petition for review in a medical malpractice case in Navarro v. Washington, 10-13-00248-CV, 2014 WL 1882763 (Tex. App.—Waco May 8, 2014, pet. denied) (mem. op.), which upheld the sufficiency of the patient’s expert doctors’ reports under Chapter 74.
Kirk L. Pittard, Partner and Leigh Prichard Bradford, Of Counsel
Denial of petition for mandamus when the defendant challenged the trial court’s new trial order which was based on the jury’s verdict being against the great weight and preponderance of the evidence.
Reversing a trial court’s refusal to award clients trial court costs following successful appeal of adverse judgment.
Denial of petition for mandamus when the defendant challenged the trail court’s new trial order entered after the defendant asked the trial court to impose constitutional due process limitations to a punitive damages award.
Dismissal of interlocutory appeal challenging Chapter 74 expert report for want of jurisdiction in a medical malpractice case.
Rejecting the self-critical analysis privilege and requiring the production of relevant reports in a products liability case.
Kirk L. Pittard, Partner and Leigh Prichard Bradford, Of Counsel
Holding that statutory scheme that denied same-sex couples the right to marry violates the Equal Protection Clause of the New Mexico Constitution.
Successfully reversing summary judgment in part in a wrongful-death action against a natural gas provider in which provider’s gas lines leaked, allowing odorless gas to accumulate in the decedent’s home, at which point it exploded, severely burning, injuring, and ultimately killing the decedent.
Successfully dismissed interlocutory appeal under CPRC section 51.014(d) where order denying summary judgment did not substantively rule on any controlling legal issue
Requiring return of erroneously forfeited attorney’s fees.
Affirmed $1.1 million dollar award, including $800,000 in punitive damages, in commercial fraud case involving a real estate lease.
Denial of mandamus of summary judgment in class action, where insurer attempted to “pick off” the class representative by settling with him
Successfully defended order dismissing claims based on parties’ contractual forum selection clause.
Successfully defended judgment appointing client as sole managing conservator of his children following week-long child custody jury trial.
Reversed summary judgment originally granted on ground of release. Court held that Van Voris released only his claims for negligence, not gross negligence.
Reversing jury verdict in legal malpractice case against law firm where client failed to present medical-expert testimony in support of damage causation
Reversing a trial court’s award of a homeowner’s property to his neighbor by adverse possession, holding that neighbor’s assumption that homeowner’s property was part of neighbor’s backyard, and neighbor’s use of that property as part of her backyard, was legally insufficient to support the trial court’s award by adverse possession.
Reversed and remanded; policyholder client’s failures to sit for examination under oath and to submit proof of claim in proper form did not entitle insurer to summary judgment, but rather only abatement.
As a matter of first impression, holding that Uniform Parentage Act’s statutory presumption conferring status of father on a man applies equally to same-sex partner of child’s adoptive mother, noting that classifications based on gender are presumptively unconstitutional and that denying partner opportunity to establish parentage would harm both the child and the State.
Affirming a judgment for approximately $1 million based on findings of fraud, DTPA violations, and gross negligence, as well as a finding piercing the corporate veil, arising out of a contractor’s failed effort to repair a foundation that ruined a homeowner’s house.
Denial of petition for review in case challenging a Chapter 74 expert report in a medical malpractice case.
Denial of defendants’ petition for mandamus attempting to have 18 plaintiffs’ cases severed into 18 separate trials.
Reversing a summary judgment concluding that a law firm failed to prove that attorney’s fees of over $1 million for just over 2 months of work in representing a small business was reasonable and necessary under the Arthur Anderson factors.
Upholding default judgment after death penalty discovery sanctions, actual and punitive damages, and enforceability of a non-compete agreement.
Reversing and remanding for a new trial when trial court refused to include the correct corporate entity on the jury form.
Obtaining reversal and remand of judgment after jury verdict in workers compensation judicial review case.
Upholding jury verdict in an automobile design defect case finding circumstantial evidence to support causation and sufficient evidence of an unreasonably dangerous design and of a safer alternative design.
Denying arbitration due to substantial invocation of the judicial process.
Kirk L. Pittard, Partner, Leigh Prichard Bradford, Of Counsel, and Leighton Durham, Partner
Affirming trial court judgment on liability and preserving right to re-elect remedies on remand.
Upholding monetary sanctions against a defense attorney who violated a court order by making ex parte contacts with a plaintiff’s treating physicians.
As amicus, insulating denial of abatement from mandamus review in case involving appraisal clauses.
Affirming trial court judgment after jury verdict in a workers’ compensation judicial review case.
Denying petition for mandamus concerning trial court’s denial of a motion to designate a responsible third party.
In case involving taxi company’s liability for its driver’s criminal acts tried to a favorable jury verdict, settling immediately after oral argument.
Denying petition for mandamus concluding that the parties may agree to alter the statutory deadlines for designating responsible third parties.
In a case involving product liability design defect tried to a favorable jury verdict, settling after oral argument.
Defeating state representative’s attempt to secure privileged TWIA documents under the Texas Public Information Act.
Reversing trial court’s forfeiture of a plaintiff’s attorney’s fees.
Obtaining reversal and modification in DTPA case in which trial court failed to award attorney’s fees to plaintiff.
Affirming jury award on ground that option created enforceable contract, even though option was not exercised precisely as provided in written agreement.
Issued mandamus requiring a jury trial rejecting argument that a signed arbitration provision constituted a jury waiver.
Affirming reliability and admissibility of treating physician’s expert testimony based on differential diagnosis.
Reversing a case that had been dismissed for want of prosecution.
Granting of motion to disqualify relator’s counsel on ground that counsel, a former justice, before leaving the bench had adjudicated a portion of the dispute in an earlier proceeding.
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.
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 that father had standing to raise the right-to-counsel issue on behalf of his child.
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.
Affirming the denial of a plea to the jurisdiction filed by the City of Irving based on a claim of sovereign immunity.
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.
Reversing a summary judgment and an $829,816 judgment on counterclaims asserted against a plaintiff in a commercial real estate case.
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.
Defeating attempt to dismiss case on personal and subject-matter jurisdictional grounds.
Defeating mandamus attempt to avoid discovery on jurisdictional grounds.
Upholding an $869,200 judgment for personal injuries sustained when the plaintiff was hit in the back by a pallet jack being driven by a Wal-Mart employee.
Affirming an $8.5 million judgment in favor of a physician who was wrongfully terminated from his practice group.
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.
Affirming judgment after jury verdict in workers compensation judicial review case.
Affirming denial of a motion to dismiss based on a challenge to an expert report in a medical malpractice case.
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 by the Emergency Room statute.
Reversing and remanding a $1,070,643 judgment based on a counterclaim asserted against the Plaintiff for claims of breach of contract, breach of fiduciary duty, fraud, and negligence.
Defeating mandamus attempt to dismiss case on forum non conveniens grounds.
After defense verdict in medical malpractice case, obtaining reversal and remand for new trial on basis of a Batson challenge.
Reversing and rendering a judgment based on legally insufficient evidence in a case involving a challenge to a deed conveying real property.
Successfully defending trial court order denying motion to compel arbitration.
Affirming judgment after jury verdict in workers compensation judicial review case.
Successfully protected a judgment rendered after a jury trial in a complicated commercial suit involving more than $250 million in alleged damages.
Amicus brief
In coverage action, affirming trial court’s judgment that insurer’s duty to defend did not require it to fund prosecution of counterclaim.
On venue grounds, obtaining reversal of trial court judgment domesticating foreign judgment.
Amicus brief
In medical malpractice case, obtaining reversal of summary judgment granted on “loss of chance” doctrine.
Affirming a trial court’s denial of a defendant’s motion to dismiss in a medical malpractice case.
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 justified by exigent circumstances.
Reversing a summary judgment in a case of first impression involving the interpretation of the Texas Condominium Act.
Successfully defending trial court order denying motion to compel arbitration.
Successfully reversed summary judgment granted in favor of self-insured workers’ compensation carrier on the issue of the claimant’s “follow-on” injury
As amicus, persuading court to withdraw its grant of review as improvidently granted.
Affirming judgment after jury verdict in workers compensation judicial review case.
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 worker.
Holding that State does not have jurisdiction to prosecute enrolled tribal members for alleged crimes occurring within the exterior boundaries of an Indian Pueblo.
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.
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.
Reversing a defense verdict in a personal injury case and remanding for a new trial.
Granting the Plaintiff’s motion for remand in a toxic tort Benzene exposure case based on a lack of complete federal preemption.
Successfully affirmed judgment of expunction by defeating State’s argument that statutory limitation period does not apply to misdemeanor arrests
Reversing and remanding the trial court’s granting of a no evidence summary judgment in a negligent hiring case.
Affirming the denial of Dallas County’s Plea to the Jurisdiction.
Affirming appellate jurisdiction of interlocutory appeal from probate order.
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 aid of experiments.
Upheld judgment against surety on payment bond where surety complained of technical notice given to general contractor
Affirming claim for workers compensation benefits when carrier does not comply with statutory deadlines for denying a claim.
Obtained reversal of a summary judgment granted against a plaintiff in an ERISA benefits dispute action.
Appeal of a forcible entry and detainer action.
Obtaining writ of mandamus dissolving improperly filed lis pendens.
Affirming grant of summary judgment for return of money loaned on three out of four grounds; case subsequently dismissed.
Affirming a punitive damages award in a Sabine Pilot wrongful termination case.
Involved the reversal of a dismissal of a medical malpractice case concerning the adequacy of a 4590i expert report.
Upheld jury verdict in favor of defendant attorney in legal malpractice case, including award of sanctions in favor of defendant attorney
Reversing summary judgment for employer in suit brought by employee under the Americans with Disabilities Act.
Reversing summary judgment for employer in suit brought by employee under the Americans with Disabilities Act.
Upholding admissibility of expert reconstruction testimony of investigating officer
Successfully defended a trial court’s order denying Hoffman-LaRoche, Inc.’s special appearance.
Obtaining determination that judgment that did not include attorney fee award was final, and attorney fees were no longer available.
Affirming a punitive damages award in an asbestos case.
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.
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 of 1991.
Reversing judgment on the pleadings entered in favor of company charged with discrimination under the Americans with Disabilities Act.
Obtaining reversal of summary judgment based on interpretation of repealed Mexican telecommunications regulation.
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 a disability, i.e. that she could perform the job’s essential functions with or without a reasonable accommodation.
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 that employer acted with reckless indifference to the civil rights of its pregnant employees; as a matter of first impression, holding that each aggrieved employee may receive up to the full amount permitted by the applicable statutory cap on damages.
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.
Affirming judgment in favor of plaintiff in dram shop case tried to a verdict.
Reversing summary judgment granted on negligent supervision cause of action.