Significant Victories
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.
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.
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.
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.
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.
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.
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.”
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.”
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.