Significant Appellate Victories

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Olivares v. Chevron Phillips Chem. Co. LP, No. 05-22-00057-CV, 2023 WL 2494533 (Tex. App.—Dallas Mar. 14, 2023, no pet. h.) (mem. op.)

Successfully reversed trial court’s order granting a plea to the jurisdiction in suit to recover personal injury damages against Chevron, holding that Chevron was not entitled to the worker’s compensation exclusive remedy defense because the injured worker, who was an employee of a subsidiary company, was not a deemed employee under Chevron’s OCIP policy.
Dana Levy, Partner, Shelby J. White, Of Counsel

Livingston Land, LLC v. Brooker, No. A-1-CA-38948, 2023 WL 2017517 (N.M. App. Feb. 15, 2023)

Successfully convinced New Mexico Court of Appeals to affirm judgment rejecting contract and fraud claims against state licensed medical cannabis growers for failure to prove damages.
Caren I. Friedman, Partner, Justin R. Kaufman, Partner, Rosalind Bienvenu, Partner

One World Bank v. Miller, No. 05-21-00705-CV, 2023 WL 333712 (Tex. App.—Dallas Jan. 20, 2023, no pet. h.) (mem. op.)

Successfully defended grant of traditional and no evidence summary judgment in favor of buyer and award of attorney’s fees to buyer in the bank’s suit to sequester a vehicle dealership sold to a buyer in good faith after dealership defaulted on its inventory loan. The court found that a purchase by a buyer in good faith cuts off the bank’s security interest in the vehicle. In a matter of first impression, the court also found that the buyer was entitled to recover his attorney’s fees under Texas Property Code Section 70.008 because the suit was one for possession of a motor vehicle.
Shelby J. White, Of Counsel

Walker v. Carlsbad Med. Ctr., LLC, No. A-1-CA-40662, 2023 WL 209184 (N.M. Ct. App. Jan. 17, 2023)

Successfully convinced the New Mexico Court of Appeals to reverse summary judgment in a medical malpractice case in which the defendant hospital administered incorrect blood pressure medications to the wrong patient, causing a life-threatening drop in blood pressure. The Court of Appeals found that the grant of summary judgment was error because plaintiff’s medical expert’s testimony permitted a reasonable inference of causation.
Caren I. Friedman, Partner, Rosalind Bienvenu, Partner

Aquifer Science v. Verhines, --- P.3d ---, 2022 WL 18356471 (N.M. App. Dec. 15, 2022)

Successfully defended decision to deny developer’s water application that would have impaired existing wells and would have been contrary to conservation of water in New Mexico, along with cost award, including post-judgment interest, to prevailing public interest group that opposed water application.
Caren I. Friedman, Partner, Justin R. Kaufman, Partner, Rosalind Bienvenu, Partner

Byrd v. Cornelius, 52 F.4th 265 (5th Cir. 2022)

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.
Shelby J. White, Of Counsel, Thad D. Spalding, Partner

Crane v. City of Arlington, Tex., 50 F.4th 453 (5th Cir. 2022)

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.
Shelby J. White, Of Counsel, Thad D. Spalding, Partner

In re Guerra, No. 13-22-00305-CV, 2022 WL 4126021 (Tex. App.—Corpus Christi Sept. 9, 2022, orig. proceeding) (mem. op.)

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.
Rick Thompson, Partner

Collado v. Fiesta Park Healthcare, LLC, No. A-1-CA-38271, --- P.3d ---, 2022 WL 3974080 (N.M. Ct. App. Aug. 31, 2022)

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.
Caren I. Friedman, Partner, Justin R. Kaufman, Partner

Cobb v. Hansen, No. 05-19-01327-CV, 2022 WL 3499999 (Tex. App.—Dallas Aug. 18, 2022, no pet.) (mem. op.)

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.
Rick Thompson, Partner

Envision Radiology Tex. LP v. Trader, No. 05-20-00529-CV, 2022 WL 2826896 (Tex. App.—Dallas July 20, 2022, no pet.) (mem. op.)

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.
Dana Levy, Partner

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.
Kirk L. Pittard, Partner

E.D. v. Tex. Health Care, P.L.L.C., 644 S.W.3d 660 (Tex. 2022)

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.”
Dana Levy, Partner

Edwards v. Oliver, 31 F.4th 925 (5th Cir. 2022)

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.
Thad D. Spalding, Partner

Bluebird Med. Enterprises, LLC v. Willis, 651 S.W.3d 486 (Tex. App.—Houston [14th Dist.] 2022, no pet.)

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.
Dana Levy, Partner

In re Cash, No. 20-0837 (Tex. March 11, 2022)

Successfully defeated mandamus petition related to trial court's new trial order.
Rick Thompson, Partner

In re Eagleridge Operating, LLC, 642 S.W.3d 518 (Tex. 2022)

Successfully defeated mandamus petition related to trial court's striking of responsible third party.
Dana Levy, Partner

Tanner v. Tex. State Univ., 644 S.W.3d 747 (Tex. App.—Austin 2022, no pet. h.)

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.
Tammy Holt, Of Counsel

Rawlings v. Rawlings, 505 P.3d 875 (N.M. App. 2021)

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.
Caren I. Friedman, Partner

Gateway Diagnostic Imaging, LLC v. Ratnasabapathy, No. 05-20-00817-CV, 2021 WL 3855634 (Tex. App.—Dallas Aug. 30, 2021, no pet.) (mem. op.)

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.
Dana Levy, Partner

Cirrus Design Corp. v. Berra, 633 S.W.3d 640 (Tex. App.—San Antonio 2021, no pet.)

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.
Rosalind Bienvenu, Partner

Alford-Shaw v. Nicholson, No. 02-20-00387-CV, 2021 WL 2753508 (Tex. App.—Fort Worth July 1, 2021, pet. denied) (mem. op.)

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.
Rick Thompson, Partner

In re C.A., No. 02-21-00018-CV, 2021 WL 2753533 (Tex. App.—Fort Worth July 1, 2021, orig. proceeding) (mem. op.)

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.
Rick Thompson, Partner, Tammy Holt, Of Counsel

Hallman v. State, 620 S.W.3d 931 (Tex. Crim. App. 2021)

Successfully obtained reversal and remand of Court of Appeals' decision that the State had failed to timely disclose evidence.
Shelby J. White, Of Counsel

In re Elara Signature Homes, Inc., No. 09-21-00068-CV, 2021 WL 1418235 (Tex. App.—Beaumont Apr. 15, 2021, orig. proceeding) (mem. op.)

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.
Dana Levy, Partner

Painter v. Amerimex Drilling I, Ltd., 632 S.W.3d 156 (Tex. App.—El Paso 2021, no pet.)

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.
Thad D. Spalding, Partner

Martinez v. Boone, 624 S.W.3d 241 (Tex. App.—El Paso 2021, pet. filed)

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.
Dana Levy, Partner

In re Jerry Gonzalez, Jr., No. 13-21-00025-CV, 2021 WL 689280 (Tex. App.—Corpus Christi Feb. 23, 2021, orig. proceeding) (mem. op.)

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.
Tammy Holt, Of Counsel

Healy v. Mowat-Cudd, No. 04-20-00479-CV, 2021 WL 603369 (Tex. App.—San Antonio Feb. 17, 2021, no pet.) (mem. op.)

Successful defense of Chapter 74 medical expert report by radiologist who testified regarding physician's failure to diagnose Plaintiff's breast cancer.
Dana Levy, Partner

Wheeler v. State, 616 S.W.3d 858 (Tex. Crim. App. 2021)

Obtained petition for review of Court of Appeals' decision that affidavit was not properly sworn.
Shelby J. White, Of Counsel

Moreschini v. Grover, No. A-1-CA-38403, 2021 WL 398720 (N.M. Ct. App. Feb. 4, 2021)

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.
Caren I. Friedman, Partner

Murphy v. Arcos, 615 S.W.3d 676 (Tex. App.—Dallas 2020, pet. denied)

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.
Kirk L. Pittard, Partner, Tammy Holt, Of Counsel

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.
Kirk L. Pittard, Partner

Forsythe v. Ford Motor Co., S-1-SC-37761 & -37762, 2020 WL 6611059 (N.M. Nov. 12, 2020)

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.
Caren I. Friedman, Partner

Vigil v. Ludwig-Vigil, No. A-1-CA-37912, 2020 WL 6155390 (N.M. App. Oct. 20, 2020)

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.
Caren I. Friedman, Partner

Decker v. Columbia Med. Ctr. of Plano, No. 05-19-01508-CV, 2020 WL 6073880 (Tex. App.—Dallas Oct. 15, 2020, pet. denied) (mem. op.).

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.
Dana Levy, Partner

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.
Kirk L. Pittard, Partner, Tammy Holt, Of Counsel

Gulf Coast Center v. Curry, No. 01-18-00665-CV, 2020 WL 5414983 (Tex. App.—Houston [1st Dist.] Sept. 10, 2020, pet. filed) (mem. op.).

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.”
Dana Levy, Partner, Thad D. Spalding, Partner

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.
Dana Levy, Partner, Kirk L. Pittard, Partner

Nettles v. GTECH Corp., 603 S.W.3d 63 (Tex. 2020)

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.
Thad D. Spalding, Partner

Texas Children’s Hosp. v. Knight, 604 S.W.3d 162 (Tex. App.—Houston [14th Dist.] 2020, pet. filed)

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.
Dana Levy, Partner

Pennington v. Fields, No. 05-19-00149-CV, 2020 WL 2611251 (Tex. App.—Dallas May 22, 2020, pet. denied) (mem. op.)

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.
Tammy Holt, Of Counsel, Thad D. Spalding, Partner

Osburn v. Baker, No. 04-19-00568-CV, 2020 WL 2441426 (Tex. App.—San Antonio May 13, 2020, no pet.)

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.
Tammy Holt, Of Counsel

Fair Oaks Housing Partners, LP v. Hernandez, 616 S.W.3d 602 (Tex. App.—Houston [14th Dist.] 2020, no pet.)

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.
Dana Levy, Partner

Poledore v. Daniel, No. 05-18-01278-CV, 2020 WL 1685333 (Tex. App.—Dallas April 7, 2020, no pet. h.) (mem. op.)

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.
Thad D. Spalding, Partner

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.
Dana Levy, Partner, Kirk L. Pittard, Partner

Kemp v. Brenham, No. 05-18-01377-CV, 2020 WL 205313 (Tex. App.—Dallas Jan. 14, 2020, pet. denied) (mem. op.)

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.
Rick Thompson, Partner

Lane v. Manfre, No. 05-18-01305-CV, 2020 WL 104625 (Tex. App.—Dallas Jan. 9, 2020, pet. denied) (mem. op.)

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.
Thad D. Spalding, Partner

In re Turner, 591 S.W.3d 121 (Tex. 2019)

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.
Dana Levy, Partner

Brazos Contractors Dev., Inc. v. Jefferson, 596 S.W.3d 291 (Tex. App.—Houston [14th Dist.] 2019, no pet. h.)

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.
Leighton Durham, Partner

Morris v. Ponce, 584 S.W.3d 922 (Tex. App.—Houston [14th Dist.] 2019, pet. filed)

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.
Dana Levy, Partner, Kirk L. Pittard, Partner

Hulsey v. Attalla, No. 01-18-00189-CV, 2019 WL 3484082 (Tex. App.—Houston [1st Dist.] Aug. 1, 2019, no pet. h.) (mem. op.)

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.
Dana Levy, Partner

Maxion v. State, No. 02-18-00176-CR, 2019 WL 3269324 (Tex. App.—Fort Worth July 18, 2019, pet. ref’d) (en banc)

Obtained reversal on en banc reconsideration holding that issue previously decided on appeal was not properly raised.
Shelby J. White, Of Counsel

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.
Rick Thompson, Partner

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.
Kirk L. Pittard, Partner

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.
Dana Levy, Partner

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.
Kirk L. Pittard, Partner

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.
Dana Levy, Partner

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.”

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.”
Kirk L. Pittard, Partner

VanderLugt v. VanderLugt, 429 P.3d 1269 (N.M. Ct. App. 2018)

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.
Caren I. Friedman, Partner

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.
Kirk L. Pittard, Partner

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.
Dana Levy, Partner

In the Interest of C.E.C., a minor child, No. 05-17-01482-CV, 2018 WL 3062454 (Tex. App.—Dallas June 21, 2018, no pet.) (mem. op.)

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.
Thad D. Spalding, Partner

Garcia v. Wal-Mart Stores Texas, L.L.C., 893 F.3d 278 (5th Cir. 2018)

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.
Dana Levy, Partner

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.
Thad D. Spalding, Partner

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.
Kirk L. Pittard, Partner, Thad D. Spalding, Partner

McRay v. Dow Golub Remels & Beverly, LLP, 554 S.W.3d 702 (Tex. App.—Houston [1st Dist.] 2018, no pet.)

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.
Dana Levy, Partner

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.

SCI Texas Funeral Servs., Inc. v. Nelson, 540 S.W.3d 539 (Tex. 2018)

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.
Kirk L. Pittard, Partner

Tran v. Bennett, 411 P.3d 345 (N.M. 2018)

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.
Caren I. Friedman, Partner

In re East Texas Med. Ctr., 12-17-00183-CV, 2017 WL 4675511 (Tex. App.—Tyler Oct. 18, 2017, orig. proceeding) (mem. op.)

Successfully defeating hospital's mandamus petition challenging a trial court order taking judicial notice of administrative rules promulgated by the Texas Medical Board.
Kirk L. Pittard, Partner

Smith v. Johnson, 05-16-01261-CV, 2017 WL 3275517 (Tex. App.—Dallas July 26, 2017, no pet.) (mem. op.)

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.
Kirk L. Pittard, Partner

BoRain Capital, LLC v. Hashmi, 533 S.W.3d 32 (Tex. App.—San Antonio 2017, pet. denied)

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.
Thad D. Spalding, Partner

Randell v. Galbreath, No. 11-15-00056-CV, 2017 WL 2698113 (Tex. App.⎯Eastland June 22, 2017, no pet.) (mem. op)

Successfully defended summary judgment granted in favor of lawyers against former client arising out of client's settlement of personal injury claims.

Autosource Dallas, LLC v. Addison Aeronautics, LLC, No. 05-16-00838-CV, 2017 WL 2492787 (Tex. App.—Dallas June 9, 2017, no pet.) (mem. op.)

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.
Thad D. Spalding, Partner

Tomlinson v. Weatherford, 399 P.3d 961 (N.M. Ct. App. 2017)

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.
Caren I. Friedman, Partner

State v. T.S.N., 523 S.W.3d 171 (Tex. App.—Dallas 2017), aff'd, 547 S.W.3d 617 (Tex. 2018)

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.
Thad D. Spalding, Partner

D.A. v. Texas Health Presbyterian Hosp. of Denton, 514 S.W.3d 431 (Tex. App.—Fort Worth 2017, pet. filed)

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.
Kirk L. Pittard, Partner

In the Interest of P.M.K., No. 05-15-01181-CV, 2017 WL 462343 (Tex. App.—Dallas Jan. 30, 2017, no pet.)(mem. op.)

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.
Thad D. Spalding, Partner

Hornbuckle v. Keller Williams Realty, No. 02-15-00398-CV, 2016 WL 7405807 (Tex. App.—Fort Worth Dec. 22, 2016, no pet. h.) (mem. op.)

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.
Thad D. Spalding, Partner

Austin v. Coface Seguro de Credito Mexico, S.A. de C.V., 506 S.W.3d 707 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).

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.

Young v. Pulte Homes of Tex., L.P., No. 02-14-00224-CV, 2016 WL 4491517 (Tex. App.—Fort Worth Aug. 26, 2016, no pet.) (mem. op.)

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.
Thad D. Spalding, Partner

Premier Pools Mgmt. Co. v. Premier Pools, Inc., No. 05-14-01388-CV, 2016 WL 4258830 (Tex. App.—Dallas Aug. 12, 2016, pet. denied) (mem. op.)

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.
Thad D. Spalding, Partner

In the Interest of H.S., a minor child, No. 02-15-00303-CV, 2016 WL 4040497 (Tex. App.—Fort Worth July 28, 2016, pet. granted) (mem. op.)

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.
Kirk L. Pittard, Partner

Siddiqui v. Fancy Bites, LLC, 504 S.W.3d 349 (Tex. App.—Houston [14th Dist.] 2016, pet. denied)

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.

City of Houston v. Roman, No. 01-15-01042-CV, 2016 WL 3748851 (Tex. App.—Houston [1st Dist.] July 12, 2016, no pet.) (mem. op.)

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.

Wright v. Menta, No. 05-15-00272-CV, 2016 WL 3141578 (Tex. App.—Dallas June 6, 2016, pet. denied) (mem. op.)

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.
Leighton Durham, Partner

Poledore v. Poledore, No. 05-15-00619-CV, 2016 WL 2620648 (Tex. App.—Dallas May 6, 2016, pet. denied) (mem. op.)

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.

Harlingen Med. Ctr. Ltd. P’ship v. Andrade, No. 13-14-0700-CV, No. 13-15-0119-CV, 2016 WL 1613297 (Tex. App.—Corpus Christi April 21, 2016, pet. dismissed)

Affirming trial court’s ruling refusing to dismiss medical malpractice case based on the defendants’ challenge to the Chapter 74 expert reports.
Leighton Durham, Partner

Hancock v. Nicoley, 392 P.3d 175 (N.M. Ct. App. 2016)

Reversing error of district court in awarding windfall of parcel of land in boundary dispute between neighboring ranchers.
Caren I. Friedman, Partner

Luig v. North Bay Enters., Inc., 817 F.3d 901 (5th Cir. 2016).

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.
Kirk L. Pittard, Partner, Thad D. Spalding, Partner

Archer v. Tunnell, No. 05-15-00549-CV, 2016 WL 519632 (Tex. App.—Dallas Feb. 9, 2016, no pet.) (mem. op.)

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.
Kirk L. Pittard, Partner, Leighton Durham, Partner

Bay Area Healthcare Group, Ltd. v. Martinez, No. 13-15-00118-CV, 2015 WL 7352596 (Tex. App.—Corpus Christi Nov. 19, 2015, no pet.) (mem. op.)

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.

In re State Farm Lloyds, No. 13-14-00616-CV, 2015 WL 6520998 (Tex. App.--Corpus Christi Oct. 28, 2015, orig. proceeding) (mem. op.)

Denying mandamus relief and requiring the production of electronically stored information in native or near native format.
Kirk L. Pittard, Partner

Katy Springs & Mfg. Inc. v. Favalora, 476 S.W.3d 579 (Tex. App.—Houston [14th Dist.] 2015, pet. denied)

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.

Okon v. Boldon, No. 02-14-00334-CV, 2015 WL 4652775 (Tex. App.—Fort Worth Aug. 6, 2015, no pet.) (mem. op.)

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.

Kroger Co. v. Milanes, 474 S.W.3d 321 (Tex. App.—Houston [14th Dist.] 2015, no pet.)

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.

Williams v. BNSF Railway Co., 359 P.3d 158 (N.M. Ct. App. 2015)

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.
Caren I. Friedman, Partner

State v. Flores, 355 P.3d 81 (N.M. Ct. App. 2015)

Reversing reckless child abuse conviction and 18-year term of imprisonment of father whose baby died while in his care.
Caren I. Friedman, Partner

Mitchell v. Satyu, No. 05-14-00479-CV, 2015 WL 3765771 (Tex. App.—Dallas June 17, 2015, no pet.) (mem. op.)

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, Leigh Prichard Bradford, Of Counsel

Brazos Presbyterian Homes, Inc. v. Rodriguez, 468 S.W. 3d 175 (Tex. App.--Houston [14th Dist.] 2015, no pet.)

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.

In re Memorial Herman Hosp. Sys., 464 S.W.3d 686 (Tex. 2015)

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.

Brown & Gay Eng'g, Inc. v. Olivares, 461 S.W.3d 117 (Tex. 2015)

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.

Nabors Well Services, Ltd. v. Romero, 456 S.W.3d 553 (Tex. 2015)

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.

In re Equipment Depot, Ltd., No. 14-0981 (Tex. Jan. 21, 2015)

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.
Kirk L. Pittard, Partner

Atherton v. Gopin, 340 P.3d 630 (N.M. Ct. App. 2014), cert. granted 344 P.3d 988 (N.M. 2014)

Reversing “draconian” use of summary judgment procedure as antithetical to New Mexico’s approach.
Caren I. Friedman, Partner

Texas Dept. of Public Safety v. Randolph, No. 02–13–00025–CV, 2014 WL 1875826 (Tex. App.—Fort Worth May 8, 2014, pet. denied) (mem. op.)

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.
Shelby J. White, Of Counsel

Galindo v. Prosperity Partners, Inc., 429 S.W.3d 690 (Tex. App.--Eastland 2014, pet. denied)

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.

Navarro v. Washington, No. 14-0499 (Tex. Nov. 21, 2014)

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, Leigh Prichard Bradford, Of Counsel

In re Equipment Depot, No. 02-14-00154-CV (Tex. App.—Fort Worth Sept. 8, 2014, orig. proceeding) (mem. op.)

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.
Kirk L. Pittard, Partner

Blaylock v. Holland, No. 05-13-01197-CV, 2014 WL 3736210 (Tex. App.— Dallas July 14, 2014, no pet.) (mem. op.)

Reversing a trial court’s refusal to award clients trial court costs following successful appeal of adverse judgment.
Thad D. Spalding, Partner

In re H.E. Trans, No. 05-14-00340-CV, 2014 WL 2937497 (Tex. App.–Dallas June 26, 2014, orig. proceeding) (mem. op.)

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.
Kirk L. Pittard, Partner, Thad D. Spalding, Partner

RJ Meridian Care of Alice, Ltd. v. Robledo, No. 04-14-00195-CV, 2014 WL 2917669 (Tex. App.–San Antonio, June 19, 2014, no pet.) (mem. op.)

Dismissal of interlocutory appeal challenging Chapter 74 expert report for want of jurisdiction in a medical malpractice case.
Kirk L. Pittard, Partner, Leighton Durham, Partner

In re Fisher & Paykel Appliances, Inc., 420 S.W.3d 842 (Tex. App.—Dallas 2014, orig. proceeding)

Rejecting the self-critical analysis privilege and requiring the production of relevant reports in a products liability case.
Kirk L. Pittard, Partner, Leigh Prichard Bradford, Of Counsel

Griego v. Oliver, 316 P.3d 865 (N.M. 2013) (representing amicus curiae)

Holding that statutory scheme that denied same-sex couples the right to marry violates the Equal Protection Clause of the New Mexico Constitution.
Caren I. Friedman, Partner

Del Carmen Canas v. Centerpoint Energy Res. Corp., 418 S.W.3d 312 (Tex. App.—Houston [14th Dist.] 2013, no pet.)

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.

Borowski v. Ayers, 432 S.W.3d 344 (Tex. App.—Waco 2013, no pet.)

Successfully dismissed interlocutory appeal under CPRC section 51.014(d) where order denying summary judgment did not substantively rule on any controlling legal issue
Leighton Durham, Partner

Long v. Elliott, 416 S.W.3d 152 (Tex. App.–Eastland 2013, no pet.)

Requiring return of erroneously forfeited attorney’s fees.
Kirk L. Pittard, Partner

Drury Southwest, Inc. v. Louie Ledeaux No. 1, Inc., No. 04-12-00837-CV, 2013 WL 5812989 (Tex. App.—San Antonio Oct. 30, 2013, opinion withdrawn pursuant to settlement) 

Affirmed $1.1 million dollar award, including $800,000 in punitive damages, in commercial fraud case involving a real estate lease.

In re Loya Ins. Co., No. 01-13-00242-CV, 2013 WL 5637702 (Tex. App.—Houston [1st Dist.] Oct. 15, 2013, orig. proceeding) (mem. op.)

Denial of mandamus of summary judgment in class action, where insurer attempted to “pick off” the class representative by settling with him

CKH Family Ltd. P’ship v. MGD/CCP Acquisition, LLC, No. 05-12-00573-CV, 2013 WL 5614304 (Tex. App.—Dallas Oct. 14, 2013, no pet.) (mem. op.)

Successfully defended order dismissing claims based on parties’ contractual forum selection clause.
Thad D. Spalding, Partner

Richardson v. Richardson, No. 05-12-01123-CV, 2013 WL 3326870 (Tex. App.— Dallas June 27, 2013, no pet.) (mem. op.)

Successfully defended judgment appointing client as sole managing conservator of his children following week-long child custody jury trial.
Thad D. Spalding, Partner

Van Voris v. Team Chop Shop, LLC, 402 S.W.3d 915 (Tex. App.—Dallas 2013, no pet.)

Reversed summary judgment originally granted on ground of release.  Court held that Van Voris released only his claims for negligence, not gross negligence.

Kelley & Witherspoon, LLP v. Hooper, 401 S.W.3d 841 (Tex. App.—Dallas 2013, no pet.)

Reversing jury verdict in legal malpractice case against law firm where client failed to present medical-expert testimony in support of damage causation
Kirk L. Pittard, Partner, Leighton Durham, Partner

Blaylock v. Holland, 396 S.W.3d 720 (Tex. App.— Dallas 2013, no pet.)

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.
Thad D. Spalding, Partner

Shafighi v. Texas Farmers Ins. Co., No. 14-12-00082-CV, 2013 WL 1803609 (Tex. App.— Houston [14th Dist.] April 30 2013, no pet.) (mem. op.)

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.

Chatterjee v. King, 280 P.3d 283 (N.M. 2012)

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.
Caren I. Friedman, Partner

MBR & Associates, Inc. v. Lile, No. 02-11-00431-CV, 2012 WL 4661665 (Tex. App.—Fort Worth Oct. 4, 2012, pet. denied) (mem. op.)

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.
Kirk L. Pittard, Partner, Leighton Durham, Partner

Schrapps v. Pham, No. 09-12-00080-CV, 2012 WL 4017768 (Tex. App.—Beaumont Sept. 13, 2012, pet. denied) (mem. op.) (briefed response to Petition for Review)

Denial of petition for review in case challenging a Chapter 74 expert report in a medical malpractice case. 
Kirk L. Pittard, Partner

In re Wright, No. 05-12-00370-CV, 2012 WL 1883069 (Tex. App.—Dallas May 23, 2012, orig. proceeding) (mem. op.)

Denial of defendants’ petition for mandamus attempting to have 18 plaintiffs’ cases severed into 18 separate trials.
Leighton Durham, Partner

Ashton Grove v. Jackson Walker, 366 S.W.3d 790 (Tex. App.—Dallas 2012, no pet.)

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.
Kirk L. Pittard, Partner

Salas v. Chris Christensen Sys., Inc., No. 10-11-00107-CV, 2011 WL 4089999 (Tex. App.—Waco Sept. 14, 2011, no pet.) (mem. op.)

Upholding default judgment after death penalty discovery sanctions, actual and punitive damages, and enforceability of a non-compete agreement.
Kirk L. Pittard, Partner

Capps v. Nexion Health at Southwood, Inc., 349 S.W.3d 849 (Tex. App.—Tyler 2011, no pet.)

Reversing and remanding for a new trial when trial court refused to include the correct corporate entity on the jury form.
Kirk L. Pittard, Partner, Leighton Durham, Partner

Thompson v. Ace American Ins. Co., No. 01-10-00810-CV, 2011 WL 3820889 (Tex. App.--Houston [1st Dist.] Aug. 25, 2011, pet. denied)

Obtaining reversal and remand of judgment after jury verdict in workers compensation judicial review case.

Goodner v. Hyundai Motor Co., 650 F.3d 1034 (5th Cir. 2011) 

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.
Kirk L. Pittard, Partner

Adams v. Staxxring, Inc., 344 S.W.3d 641 (Tex. App.—Dallas 2011, pet. denied) 

Denying arbitration due to substantial invocation of the judicial process.
Kirk L. Pittard, Partner, Leigh Prichard Bradford, Of Counsel, Leighton Durham, Partner

Drury Southwest, Inc. v. Louie Ledeaux No. 1, Inc., 350 S.W.3d 287 (Tex. App.—San Antonio 2011, pet. denied) 

Affirming trial court judgment on liability and preserving right to re-elect remedies on remand.

Werley v. Cannon., 344 S.W.3d 527 (Tex. App.—El Paso 2011, no pet.)

Upholding monetary sanctions against a defense attorney who violated a court order by making ex parte contacts with a plaintiff’s treating physicians.
Kirk L. Pittard, Partner

In re Universal Underwriters of Texas Ins. Co., 345 S.W.3d 404 (Tex. 2011)

As amicus, insulating denial of abatement from mandamus review in case involving appraisal clauses.

Commerce & Industry Ins. Co. v. Ferguson-Stewart, 339 S.W.3d 744 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

Affirming trial court judgment after jury verdict in a workers’ compensation judicial review case.

In re Oncor Elec. Delivery Co., No. 05-11-00188-CV, 2011 WL 989071 (Tex. App.—Dallas Mar. 22, 2011, orig. proceeding) (mem. op.)

Denying petition for mandamus concerning trial court’s denial of a motion to designate a responsible third party.
Leighton Durham, Partner, Kirk L. Pittard, Partner

Greater Houston Transp. Co. v. Parks, No. 01-09-00543-CV, 2011 WL 941234 (Tex. App.—Houston [1st Dist.] Mar. 17, 2011, no pet.) (mem. op.)

In case involving taxi company’s liability for its driver’s criminal acts tried to a favorable jury verdict, settling immediately after oral argument.

In re Kobelt Mfg. Ltd., No. 07-11-0014-CV, 2011 WL 798199 (Tex. App.—Amarillo Mar. 8, 2011, orig. proceeding) (mem. op.)

Denying petition for mandamus concluding that the parties may agree to alter the statutory deadlines for designating responsible third parties.
Kirk L. Pittard, Partner, Leighton Durham, Partner

Perdue, et al. v. Nissan Motor Company, Ltd., No. 09-40881 (5th Cir. 2010)

In a case involving product liability design defect tried to a favorable jury verdict, settling after oral argument.
Kirk L. Pittard, Partner

In re Taylor, No. 01-10-00893-CV, 2010 WL 4395873 (Tex. App.—Houston [1st Dist.] Oct. 29, 2010, orig. proceeding) (mem. op.) 

Defeating state representative’s attempt to secure privileged TWIA documents under the Texas Public Information Act.

Elliott v. Hollingshead, 327 S.W.3d 824 (Tex. App.—Eastland 2010, no pet.)

Reversing trial court’s forfeiture of a plaintiff’s attorney’s fees.
Leighton Durham, Partner, Kirk L. Pittard, Partner

Turull v. Ferguson, No. 01-09-00067-CV, 2010 WL 3833944 (Tex. App.—Houston [1st Dist.] Sep. 30, 2010) (supp’l mem. op. on rehearing) 

Obtaining reversal and modification in DTPA case in which trial court failed to award attorney’s fees to plaintiff.

Faucette v. Chantos, 322 S.W.3d 901 (Tex. App.—Houston [14th Dist.] 2010, no pet.) 

Affirming jury award on ground that option created enforceable contract, even though option was not exercised precisely as provided in written agreement. 

In re Professional Pharmacy II, No. 02-10-163-CV, 2010 WL 3718946 (Tex. App.—Fort Worth Sept. 23, 2010, orig. proceeding) (mem. op.)

Issued mandamus requiring a jury trial rejecting argument that a signed arbitration provision constituted a jury waiver.
Kirk L. Pittard, Partner, Leighton Durham, Partner

Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211 (Tex. 2010) 

Affirming reliability and admissibility of treating physician’s expert testimony based on differential diagnosis.

Smith v. Shipp, No. 05-09-01204-CV, 2010 WL 2653733 (Tex. App.—Dallas July 6, 2010, no pet.) (mem. op.)

Reversing a case that had been dismissed for want of prosecution.
Kirk L. Pittard, Partner, Leighton Durham, Partner

In re Brittingham, 319 S.W.3d 95 (Tex. App.—San Antonio 2010, orig. proceeding) (mem. op.)

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.

Sherouse v. Ratchner, 573 F.3d 1055 (10th Cir. 2009)

In suit against police officers challenging arrest under 42 U.S.C. § 1983, reversing in part judgment on jury verdict for defendants, holding that probable cause to support arrest was lacking where officer observed inherently innocuous behavior with a plausible innocent explanation.
Caren I. Friedman, Partner

State ex rel. CYFD v. John R., 203 P.3d 167 (N.M. Ct. App. 2009)

Reversing termination of father’s parental rights where district court erred in failing to appoint counsel for child who was over the age of 14, even where child had a disability and was not functioning at the mental age of 14; holding that father had standing to raise the right-to-counsel issue on behalf of his child.
Caren I. Friedman, Partner

In re Deere & Co., 299 S.W.3d 819 (Tex. 2009) (orig. proceeding) (per curiam)

Rejecting John Deere’s argument that a discovery order covering multiple makes and models of equipment was overly broad and unduly burdensome and establishing that a defendant bears the burden of proving the bases for objections raised in discovery.
Kirk L. Pittard, Partner, Leighton Durham, Partner

City of Irving v. Seppy, 301 S.W.3d 435 (Tex. App.—Dallas 2009, no pet.)

Affirming the denial of a plea to the jurisdiction filed by the City of Irving based on a claim of sovereign immunity.
Leighton Durham, Partner

Vestal v. Wright, No. 2-08-237-CV, 2009 WL 2751020 (Tex. App.—Fort Worth Aug. 31, 2009, pet. denied) (mem. op.) 

Affirming denial of a doctor and his urology group’s motion to dismiss based on a challenge to an expert report in a medical malpractice case.
Kirk L. Pittard, Partner

Reeder v. Trinity Industries, Inc., 294 S.W.3d 851 (Tex. App.—Dallas 2009, pet. denied)

Reversing a summary judgment and an $829,816 judgment on counterclaims asserted against a plaintiff in a commercial real estate case.
Kirk L. Pittard, Partner, Leighton Durham, Partner

Ferguson v. Building Materials Corp. of Am., 295 S.W.3d 642 (Tex. 2009) 

Reversing a summary judgment granted against a personal injury plaintiff based on the doctrine of judicial estoppel due to an inadvertent omission in a bankruptcy filing.
Kirk L. Pittard, Partner, Leighton Durham, Partner

In re Brittingham-Sada, No. 04-09-00488-CV, 2009 WL 2568341 (Tex. App.—San Antonio Aug. 19, 2009, orig. proceeding) (mem. op.) 

Defeating attempt to dismiss case on personal and subject-matter jurisdictional grounds.

In re Brittingham-Sada, No. 04-09-00480-CV, 2009 WL 2517110 (Tex. App.—San Antonio, Aug. 12, 2009, orig. proceeding) (mem. op.)

Defeating mandamus attempt to avoid discovery on jurisdictional grounds.

Wal-Mart Stores Texas, LP v. Crosby, 295 S.W.3d 346 (Tex. App.—Dallas 2009, pet. denied)

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.
Kirk L. Pittard, Partner

Pinnacle Anesthesia Consultants, P.A. v. Fisher, 309 S.W.3d 93 (Tex. App.—Dallas 2009, pet. denied).

Affirming an $8.5 million judgment in favor of a physician who was wrongfully terminated from his practice group.
Leighton Durham, Partner, Kirk L. Pittard, Partner

In the Matter of B.B.M., 291 S.W.3d 463 (Tex. App.—Dallas 2009, pet. denied) 

Reversing a jury verdict in which a jury had awarded managing conservatorship of a child to a non-parent couple instead of to the natural father.
Leighton Durham, Partner, Kirk L. Pittard, Partner

Texas Mut. Ins. Co. v. Durst, No. 04-07-00862-CV, 2009 WL 490056 (Tex. App.—San Antonio Feb. 25, 2009, no pet.) (mem. op.)

Affirming judgment after jury verdict in workers compensation judicial review case.

UHS of Timberlawn, Inc. v. S.B., a Minor, 281 S.W.3d 207 (Tex. App.—Dallas 2009, pet. denied)

Affirming denial of a motion to dismiss based on a challenge to an expert report in a medical malpractice case.
Kirk L. Pittard, Partner, Leighton Durham, Partner

Benish v. Grottie,  281 S.W.3d 184 (Tex. App.—Fort Worth 2009, pet. denied)

Affirming denial of motion to dismiss based on challenge to an expert report in a medical malpractice case. Also holding that an expert need not opine as to willful and wanton negligence in a chapter 74 report despite argument that case is governed by the Emergency Room statute.
Leighton Durham, Partner, Kirk L. Pittard, Partner

Knapp v. Wilson N. Jones Mem'l Hosp., 281 S.W.3d 163 (Tex.  App.—Dallas 2009, no pet.)

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.
Kirk L. Pittard, Partner

In re Brittingham-Sada, No. 04-08-00688-CV, 2009 WL 263361 (Tex. App.—San Antonio Feb. 4, 2009, orig. proceeding) (mem. op.) 

Defeating mandamus attempt to dismiss case on forum non conveniens grounds.

Moeller v. Blanc, 276 S.W.3d 656 (Tex. App.—Dallas 2008, pet. denied)

After defense verdict in medical malpractice case, obtaining reversal and remand for new trial on basis of a Batson challenge.

Turner v. Hendon, 269 S.W.3d 243 (Tex. App.—El Paso 2008, pet. denied)

Reversing and rendering a judgment based on legally insufficient evidence in a case involving a challenge to a deed conveying real property.
Kirk L. Pittard, Partner

In re Texas Best Staff Leasing, Inc., No. 01-08-00296-CV, 2008 WL 4531028 (Tex. App.—Houston [1st Dist.] Oct. 9, 2008, orig. proceeding) 

Successfully defending trial court order denying motion to compel arbitration.

Transcontinental Ins. Co. v. Crump, 274 S.W.3d 86 (Tex. App.—Houston [14th Dist.] 2008), rev’d, 330 S.W.3d 211 (Tex. 2010)

Affirming judgment after jury verdict in workers compensation judicial review case.

Boulle v. Boulle, 254 S.W.3d 701 (Tex. App.--Dallas 2008, pet. denied)

Successfully protected a judgment rendered after a jury trial in a complicated commercial suit involving more than $250 million in alleged damages.
Leighton Durham, Partner

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

Amicus brief
Leighton Durham, Partner

Vansteen Marine Supply, Inc. v. Twin City Fire Ins. Co., No. 13-05-00231-CV, 2008 WL 599850 (Tex. App.—Corpus Christi Mar 6, 2008, pet. denied) (mem. op.) 

In coverage action, affirming trial court’s judgment that insurer’s duty to defend did not require it to fund prosecution of counterclaim.

Cantu v. Howard S. Grossman, P.A., 251 S.W.3d 731 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)

On venue grounds, obtaining reversal of trial court judgment domesticating foreign judgment.

McAteer v. Silverleaf Resorts Inc., 514 F.3d 411 (5th Cir. 2008)

Amicus brief
Leighton Durham, Partner

Escalante v. Rowan, 251 S.W.3d 720 (Tex. App.—Houston [14th Dist.] 2008), rev’d on other grounds, 332 S.W.3d 365 (Tex. 2011) 

In medical malpractice case, obtaining reversal of summary judgment granted on “loss of chance” doctrine. 

Lanphier v. Avis, 244 S.W.3d 596 (Tex.  App.—Texarkana 2008, pet. dism’d by agr.)

Affirming a trial court's denial of a defendant's motion to dismiss in a medical malpractice case.
Leighton Durham, Partner

Cortez v. McCauley, 478 F.3d 1108 (10th Cir. 2007) (en banc)

In action brought under 42 U.S.C. § 1983 for unlawful arrest and unreasonable search and seizure, on review of partial summary judgment on qualified immunity grounds, holding that officers were on reasonable notice that their warrantless arrest violated the Fourth Amendment and was not justified by exigent circumstances.
Caren I. Friedman, Partner

Plano Parkway Office Condominiums v. Beaver Properties, 246 S.W.3d 188 (Tex. App.—Dallas 2007, pet. denied)

Reversing a summary judgment in a case of first impression involving the interpretation of the Texas Condominium Act.
Thad D. Spalding, Partner

In re Igloo Products Corp., 238 S.W.3d 574 (Tex. App.—Houston [14th Dist.] 2007, orig. proceeding) 

Successfully defending trial court order denying motion to compel arbitration.

Williams v. Dallas County, No. 05-06-01142-CV, 2007 WL 3121670 (Tex. App.—Dallas Oct. 26, 2007, no pet.) (mem. op.)

Successfully reversed summary judgment granted in favor of self-insured workers’ compensation carrier on the issue of the claimant’s “follow-on” injury
Thad D. Spalding, Partner

Kallam v. Boyd, 232 S.W.3d 774 (Tex. 2007) 

As amicus, persuading court to withdraw its grant of review as improvidently granted.

Hagberg v. City of Pasadena, 224 S.W.3d 477 (Tex. App.—Houston [1st Dist.] 2007, no pet.) 

Affirming judgment after jury verdict in workers compensation judicial review case.

Padilla v. Wall Colmonoy Corp., 145 P.3d 110 (N.M. Ct. App. 2006)

On interlocutory appeal, affirming denial of employer’s motion to dismiss wrongful death case arising from workplace injury; retroactively applying Supreme Court precedent stating that exclusivity provision of Workers’ Compensation Act does not protect employer from tort suit where employer willfully or intentionally injures worker.
Caren I. Friedman, Partner

State v. Romero, 142 P.3d 887 (N.M. 2006) (representing amicus curiae)

Holding that State does not have jurisdiction to prosecute enrolled tribal members for alleged crimes occurring within the exterior boundaries of an Indian Pueblo.
Caren I. Friedman, Partner

Burrell v. Armijo, 456 F.3d 1159 (10th Cir. 2006)

Holding that Indian Pueblo did not waive its sovereign immunity on breach of lease claim, and tribal officials were not liable under 42 U.S.C. § 1983 for actions taken under color of tribal law.
Caren I. Friedman, Partner

Coleman v. City of Las Cruces, 137 P.3d 670 (N.M. Ct. App. 2006)

Affirming jury verdict for injured pedestrian, holding that a plaintiff is not required to name an individual public employee as a defendant to recover damages under the Tort Claims Act; naming only a governmental entity is sufficient.
Caren I. Friedman, Partner

Perez v. Kleinart, 211 S.W.3d 468 (Tex. App.—Corpus Christi 2006, no pet.)   

Reversing a defense verdict in a personal injury case and remanding for a new trial.
Thad D. Spalding, Partner

Akins v. Radiator Specialty Co., No. Civ. A 3:05-451, 2006 WL 2850444 (W.D. Pa. Sept. 29, 2006)

Granting the Plaintiff’s motion for remand in a toxic tort Benzene exposure case based on a lack of complete federal preemption.
Leighton Durham, Partner, Kirk L. Pittard, Partner

Ex parte M.R.R., 223 S.W.3d 499 (Tex. App.—Amarillo 2006, pet. dism’d)

Successfully affirmed judgment of expunction by defeating State’s argument that statutory limitation period does not apply to misdemeanor arrests
Thad D. Spalding, Partner

Mireles v. Ashley, 201 S.W.3d 779 (Tex. App.—Amarillo 2006, no pet.)

Reversing and remanding the trial court's granting of a no evidence summary judgment in a negligent hiring case. 
Kirk L. Pittard, Partner, Leighton Durham, Partner

Dallas County v. Hughes, 189 S.W.3d 886 (Tex. App.—Dallas 2006, pet. denied)

Affirming the denial of Dallas County's Plea to the Jurisdiction. 
Kirk L. Pittard, Partner

Tijerina v. Mackie, No. 04-05-00213-CV, 2006 WL 397936 (Tex. App.—San Antonio Feb. 22, 2006, pet. denied) (mem. op.) 

Affirming appellate jurisdiction of interlocutory appeal from probate order.

Williams v. Stewart, 112 P.3d 281 (N.M. Ct. App. 2005)

In class action brought by family members of decedents whose body parts were taken surreptitiously and used in experiments at Los Alamos National Laboratory to test plutonium levels, reversing summary judgment on statute of limitation grounds granted in favor of physician who performed autopsies in aid of experiments.
Caren I. Friedman, Partner

Redland Ins. Co. v. Southwest Stainless, L.P., 181 S.W.3d 509 (Tex. App.—Fort Worth 2005, no pet.)

Upheld judgment against surety on payment bond where surety complained of technical notice given to general contractor
Thad D. Spalding, Partner

Zurich American Ins. Co. v. Gill, 173 S.W.3d 878 (Tex. App.—Fort Worth 2005, pet denied)

Affirming claim for workers compensation benefits when carrier does not comply with statutory deadlines for denying a claim.
Kirk L. Pittard, Partner

Audino v. Raytheon Co. Short Term Disability Plan, 129 Fed. App’x 882 (5th Cir. 2005)

Obtained reversal of a summary judgment granted against a plaintiff in an ERISA benefits dispute action.
Leighton Durham, Partner

Carroll v. Bank of New York, No. 10-03-00319-CV, 2005 WL 241224 (Tex. App.—Waco Feb. 2, 2005, no pet.)

Appeal of a forcible entry and detainer action.
Leighton Durham, Partner, Kirk L. Pittard, Partner

In re Mousa, No. 01-04-00485-CV, 2004 WL 2823172 (Tex. App.—Houston [1st Dist.] Dec. 9, 2004, orig. proceeding) (mem. op.)

Obtaining writ of mandamus dissolving improperly filed lis pendens.

Leal v. Weightman, No. 01-03-01006-CV, 2004 WL 2251570 (Tex. App.—Houston [1st Dist.] Oct. 7, 2004, no. pet.) (mem. op.) 

Affirming grant of summary judgment for return of money loaned on three out of four grounds; case subsequently dismissed.

Lisanti v. Dixon, 147 S.W.3d 638 (Tex. App.—Dallas 2004, pet. denied)

Affirming a punitive damages award in a Sabine Pilot wrongful termination case.
Kirk L. Pittard, Partner

Gallardo v. Ugarte, 145 S.W.3d 272 (Tex. App.—El Paso 2004, pet. denied) 

Involved the reversal of a dismissal of a medical malpractice case concerning the adequacy of a 4590i expert report.
Kirk L. Pittard, Partner

Gibson v. Ellis, 126 S.W.3d 324 (Tex. App.—Dallas 2004, no pet.)

Upheld jury verdict in favor of defendant attorney in legal malpractice case, including award of sanctions in favor of defendant attorney
Thad D. Spalding, Partner

Fenney v. Dakota, Minnesota & Eastern R.R. Co., 327 F.3d 707 (8th Cir. 2003)

Reversing summary judgment for employer in suit brought by employee under the Americans with Disabilities Act.
Caren I. Friedman, Partner

Ebbert v. DaimlerChrysler Corp., 319 F.3d 103 (3d Cir. 2003)

Reversing summary judgment for employer in suit brought by employee under the Americans with Disabilities Act.
Caren I. Friedman, Partner

Ter-Vartanyan v. R&R Freight, Inc., 111 S.W.3d 779 (Tex. App.—Dallas 2003, pet. denied)

Upholding admissibility of expert reconstruction testimony of investigating officer
Thad D. Spalding, Partner

Hoffman-LaRoche, Inc. v. Kwasnik, 109 S.W.3d 21 (Tex. App.—El Paso 2003, orig. proceeding)

Successfully defended a trial court's order denying Hoffman-LaRoche, Inc.'s special appearance.
Leighton Durham, Partner

Johannsen v. Nabors Indus., Inc., No. 14-03-00056-CV, 2003 WL 1566560 (Tex. App.—Houston [14th Dist.] Mar. 27, 2003, no pet.) (mem. op.) 

Obtaining determination that judgment that did not include attorney fee award was final, and attorney fees were no longer available.

Brown & Root, Inc. v. Moore, 92 S.W.3d 848 (Tex. App.—Texarkana 2002, pet. denied) 

Affirming a punitive damages award in an asbestos case.
Kirk L. Pittard, Partner

EEOC v. Roadway Express, Inc., 261 F.3d 634 (6th Cir. 2001)

Affirming order to show cause to compel compliance with subpoena due to company’s failure to turn over documents relevant to Commission’s charge of race and sex discrimination.
Caren I. Friedman, Partner

Pollard v. E.I. DuPont de Nemours & Co., 532 U.S. 843 (2001) (representing EEOC as co-counsel with Solicitor General on behalf of United States as amicus curiae)

In Title VII hostile work environment claim, holding that front pay is not an element of compensatory damages subject to the statutory cap in the Civil Rights Act of 1991.
Caren I. Friedman, Partner

EEOC v. J.H. Routh Packing Co., 246 F.3d 850 (6th Cir. 2001)

Reversing judgment on the pleadings entered in favor of company charged with discrimination under the Americans with Disabilities Act.
Caren I. Friedman, Partner

Long Distance Intern., Inc. v. Telefonos de Mexico, S.A. de C.V., 49 S.W.3d 347 (Tex. 2001)

Obtaining reversal of summary judgment based on interpretation of repealed Mexican telecommunications regulation. 

EEOC v. Stowe-Pharr Mills, Inc., 216 F.3d 373 (4th Cir. 2000)

Reversing summary judgment for employer in suit brought under the Americans with Disabilities Act; in spite of plaintiff’s statement in Social Security Disability Insurance application about her inability to work, the Commission was not estopped from asserting that plaintiff was a qualified individual with a disability, i.e. that she could perform the job’s essential functions with or without a reasonable accommodation.
Caren I. Friedman, Partner

EEOC v. W & O, Inc., 213 F.3d 600 (11th Cir. 2000)

Affirming awards of punitive damages to class of women under the Pregnancy Discrimination Act against employer who had a written policy barring pregnant waitresses from waiting tables past their fifth month of pregnancy; concluding that there was sufficient evidence for jury to find 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.
Caren I. Friedman, Partner

Farrell v. Planters Lifesavers Co., 206 F.3d 271 (3d Cir. 2000) (representing amicus curiae)

In Title VII case, holding that district court applied wrong standards in determining that employee failed to establish a prima facie case of retaliation and quid pro quo sexual harassment; reversing in part summary judgment for employer.
Caren I. Friedman, Partner

Perseus, Inc. v. Canody, 995 S.W.2d 202 (Tex. App.—San Antonio, 1999, no pet.)

Affirming judgment in favor of plaintiff in dram shop case tried to a verdict.

Isbell v. Ryan, 983 S.W.2d 335 (Tex. App.—Houston [14th Dist.] 1998, no pet.)

Reversing summary judgment granted on negligent supervision cause of action.

Valdes v. Wal-Mart Stores, Inc., 158 F.3d 584, 1998 WL 648571 (5th Cir. 1998) (not designated for publication) 

Reversing and remanding for lack of subject matter jurisdiction on ground that non-diverse store manager owed independent duty to premises plaintiff.

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