Significant Victories

Appellate Victory, Rick Thompson Lance Barclay Appellate Victory, Rick Thompson Lance Barclay

Barbara Tech. Corp. v. State Farm Lloyds, 589 S.W.3d 806 (Tex. 2019)

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.

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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, Dana Levy Lance Barclay Appellate Victory, Dana Levy Lance Barclay

Bay Oaks SNF, LLC v. Lancaster, No. 18-0793 (Tex. June 21, 2019)

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.

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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, Dana Levy Lance Barclay Appellate Victory, Dana Levy Lance Barclay

Mitropoulos v. Pineda, No. 01-17-00795-CV, 2018 WL 6205855 (Tex. App.—Houston [1st Dist.] Nov. 29, 2018, no pet. h.) (mem. op.)

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.

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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 Lance Barclay Appellate Victory Lance Barclay

Abshire v. Christus Health Se. Texas, 563 S.W.3d 219 (Tex. 2018) (per curiam)

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.”

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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, Dana Levy Lance Barclay Appellate Victory, Dana Levy Lance Barclay

Littell v. Houston Indep. Sch. Dist., 894 F.3d 616 (5th Cir. 2018)

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.

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Appellate Victory, Lara Hollingsworth Lance Barclay Appellate Victory, Lara Hollingsworth Lance Barclay

Shillinglaw v. Baylor Univ., 05-17-00498-CV, 2018 WL 3062451 (Tex. App.—Dallas June 21, 2018, pet. denied)

The underlying case was a defamation action filed by a fired Baylor coach against several regents. The appeal involved, you guessed it, the anti-slapp MTD the trial court granted. The Court of Appeals affirmed the district court's grant of attorneys' fees pursuant to Baylor and the Regents' TCPA motion to dismiss.

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Appellate Victory, Thad Spalding Lance Barclay Appellate Victory, Thad Spalding Lance Barclay

State of Texas v. T.S.N., 547 S.W.3d 617 (Tex. 2018)

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.

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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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Appellate Victory Lance Barclay Appellate Victory Lance Barclay

Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125 (Tex. 2018)

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.

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