Significant Victories

Appellate Victory, Kirk Pittard, Shelby White Michelle Barclay Appellate Victory, Kirk Pittard, Shelby White Michelle Barclay

W. Dairy Transp., LLC v. Nevil, No. 06-24-00071-CV, 2025 WL 470145 (Tex. App.—Texarkana Feb. 10, 2025, no pet. h.) (mem. op.)

Affirming the denial of Defendants’ motion to transfer venue, finding that the deposition testimony of a defendant’s vice president establishing that the entity’s principal place of business was sufficient to establish venue in Lamar County.

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Appellate Victory, Tammy Holt, Kirk Pittard Michelle Barclay Appellate Victory, Tammy Holt, Kirk Pittard Michelle Barclay

Gribbin v. HollyFrontier Corp., No. 05-22-00803-CV, 2024 WL 1403366 (Tex. App.—Dallas April 2, 2024, no pet. h.) (mem. op.)

Successfully reversed summary judgment granted in favor of employer who breached an employment agreement when, after a reorganization, the defendant demoted its employee and then fired him to avoid paying severance benefits the employer would have owed if the employee had been allowed to resign.

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In re Brenham Nursing & Rehab. Ctr., No. 01-23-00946-CV, 2024 WL 924436, at *1 (Tex. App.—Houston [1st Dist.] Mar. 5, 2024, orig. proceeding) (per curium) (mem. op.)

After full briefing, denying nursing home defendant’s request for mandamus when trial court held that nursing home was not entitled to protections of the Pandemic Liability Protection Act because the nursing home failed to timely provide specific facts to support its affirmative defenses under the PLPA as statutorily required.

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Appellate Victory, Kirk Pittard, Rick Thompson Michelle Barclay Appellate Victory, Kirk Pittard, Rick Thompson Michelle Barclay

Burford v. Howmet Aerospace, Inc., 693 S.W.3d 756 (Tex. App.—Houston [14th Dist.] 2024, pet. filed)

Convinced court of appeals to reverse summary judgment on causation in an asbestos case, finding that plaintiff raised a fact issue on direct causation where there were no other “plausible sources” of asbestos exposure and “reliable expert testimony show[ed] that only exposure to asbestos can cause asbestosis” and that Alcoa was the source of all the asbestos to which plaintiff was exposed.

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Appellate Victory, Kirk Pittard, Dana Levy Michelle Barclay Appellate Victory, Kirk Pittard, Dana Levy Michelle Barclay

Nazarian v. Remarkable Healthcare of Carrollton, LP, No. 02-22-00324-CV, 2023 WL 3370721 (Tex. App.—Fort Worth May 11, 2023, no pet. h.) (mem. op.)

Successfully reversed Chapter 74 dismissal based on challenge to preliminary expert report in nursing home negligence case, finding that the expert's “evidence-based inferences" did not constitute improper speculation.

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Appellate Victory, Kirk Pittard, Dana Levy Michelle Barclay Appellate Victory, Kirk Pittard, Dana Levy Michelle Barclay

Ramsay v. Ferguson, No. 07-23-00392-CV, 2024 WL 769537 (Tex. App.—Amarillo Feb. 23, 2024, no pet. h.) (mem. op.).

Affirming the denial of nursing home administrators’ qualifications-based challenge to Chapter 74 preliminary expert reports and holding that licensed nursing administrators were qualified to offer opinions on standard of care and breach while a forensic pathologist was qualified to address causation.

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Appellate Victory, Kirk Pittard Lance Barclay Appellate Victory, Kirk Pittard Lance Barclay

Mitschke v. Borromeo, 645 S.W.3d 251 (Tex. 2022)

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.

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Appellate Victory, Kirk Pittard Lance Barclay Appellate Victory, Kirk Pittard Lance Barclay

In re State Farm Mut. Auto. Ins. Co., 614 S.W.3d 316 (Tex. App.- Fort Worth 2020, orig. proceeding)

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.

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Appellate Victory, Kirk Pittard, Tammy Holt Lance Barclay Appellate Victory, Kirk Pittard, Tammy Holt Lance Barclay

Gonzales Nursing Operations, LLC v. Smith, No. 04-20-00102-CV, 2020 WL 5646482 (Tex. App.—San Antonio Sept. 23, 2020, pet. denied) (mem. op).

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.

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Appellate Victory, Dana Levy, Kirk Pittard Lance Barclay Appellate Victory, Dana Levy, Kirk Pittard Lance Barclay

Shiloh Treatment Center, Inc. v. Ward, 608 S.W.3d 337 (Tex. App.—Houston [1st Dist.] 2020, pet. denied)

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.

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Appellate Victory, Dana Levy, Kirk Pittard Lance Barclay Appellate Victory, Dana Levy, Kirk Pittard Lance Barclay

In re Eagleridge Operating, LLC, No. 05-19-01171-CV, 2020 WL 408409 (Tex. App.—Dallas Jan. 24, 2020, orig. proceeding) (mem. op.)

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.

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Appellate Victory, Kirk Pittard Lance Barclay Appellate Victory, Kirk Pittard Lance Barclay

The Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506 (Tex. 2019)

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.

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Appellate Victory, Kirk Pittard Lance Barclay Appellate Victory, Kirk Pittard Lance Barclay

Galindo v. Garner, No. 05-19-00061-CV, 2019 WL 2098689 (Tex. App.—Dallas May 14, 2019, no pet. h.) (mem. op.).

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.

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Appellate Victory, Kirk Pittard Lance Barclay Appellate Victory, Kirk Pittard Lance Barclay

Mancilla v. TaxFree Shopping, Ltd., No. 05-18-00136, 2018 WL 6850951 (Tex. App.—Dallas Nov. 16, 2018, no pet.) (mem. op.)

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.”

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Appellate Victory, Kirk Pittard Lance Barclay Appellate Victory, Kirk Pittard Lance Barclay

Pettway v. Olvera, No. 14-17-00532-CV, 2018 WL 4016949 (Tex. App.—Houston [14th Dist.] Aug. 23, 2018, no pet. h.) (mem. op.)

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.

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Appellate Victory, Kirk Pittard, Thad Spalding Lance Barclay Appellate Victory, Kirk Pittard, Thad Spalding Lance Barclay

McCain v. Promise House, Inc., No. 05-16-00714-CV, 2018 WL 2042009 (Tex. App.—Dallas May 2, 2018, no pet.) (mem. op.)

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.

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