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.
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.”
Jessica Foster, Associate, Justin R. Kaufman, Partner, and Rosalind Bienvenu, Associate
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.”
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 defeated mandamus challenge seeking to prevent deposition of corporate president under the apex doctrine in catastrophic workplace injury case.
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.
Affirming judgment in favor of the plaintiff in a medical malpractice case, and in the process refusing to apply Texas Civil Practice and Remedies Code section 74.153’s 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.
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.
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 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 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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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.
Obtaining reversal of summary judgment based on interpretation of repealed Mexican telecommunications regulation.
Affirming judgment in favor of plaintiff in dram shop case tried to a verdict.
Reversing summary judgment granted on negligent supervision cause of action.
Reversing and remanding for lack of subject matter jurisdiction on ground that non-diverse store manager owed independent duty to premises plaintiff.