Significant Victories
Chicas v. Bayerische Motoren Werke AG et al., D-101-cv-2018-03023 (N.M. Dist. Ct. Dec. 26, 2019)
DP&S assisted trial counsel Hossley & Embry in prevailing on a motion to dismiss filed by Defendant Bayerische Motoren Werke, AG (“BMW AG”). BMW AG argued that it could not be subject to jurisdiction in New Mexico as a German entity lacking substantial contacts with the United States and New Mexico in particular. After two hearings and two rounds of legal briefs, the Court held that BMW AG was subject to specific personal jurisdiction in New Mexico’s courts and denied BMW AG’s motion to dismiss.
Joseph/Acton v. Mitsubishi Motors Corp. et al., D-101-cv-2019-01124 (N.M. Dist. Ct. Nov. 14, 2019)
On behalf of The Tracy Firm, DP&S successfully defeated Defendant Mitsubishi Motors Corp.’s Motion to Dismiss for Lack of Personal Jurisdiction. The Defendant had argued that New Mexico’s courts could not exercise specific jurisdiction over Mitsubishi due to its limited contacts in New Mexico and its presence in Japan, working through a U.S.-based distributor. The Court disagreed, adopting the argument advanced by DP&S, that under current and established New Mexico case law, the exercise of specific jurisdiction over Defendant was proper and denied the motion.
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.
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.
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.
Green/Smith v. Ford Motor Co., D-101-cv-2019-01083 (N.M. Dist. Ct. Nov. 12, 2019)
On behalf of trial counsel The Tracy Firm and Keller & Keller, successfully defeated Defendant Ford Motor Company’s personal jurisdiction challenge in this wrongful death/products liability case. Ford argued that it should not be subject to the jurisdiction of New Mexico’s courts under a specific jurisdiction analysis, and further it argued that its registration as a foreign corporation doing business in New Mexico did not equate to consent jurisdiction. DP&S was able to convince the court that Ford was wrong on both counts under existing New Mexico and U.S. Supreme Court precedent. The court held that Ford was subject to specific jurisdiction under the “stream of commerce” theory, and that Ford’s compliance with New Mexico’s Business Corporation Act meant that Ford had consented to jurisdiction in New Mexico.
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.
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.
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.
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.
Brieno v. Paccar, Inc., No. 17-cv-867 SCY/KBM, 2018 WL 3675234 (D.N.M. Aug. 2, 2019)
Working with trial counsel Guajardo & Marks, helped defeat Defendant Paccar, Inc.’s Motion to Dismiss for Lack of Jurisdiction. The court approved of Plaintiff’s argument that Defendant Paccar Inc.’s compliance with the New Mexico Business Corporation Act constitutes consent to be sued in New Mexico for the purposes of personal jurisdiction.
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.
Schmidt v. Navistar, Inc., No. 18CV321 KG/KBM, 2019 WL 1024285 (D.N.M. Mar. 4, 2019)
Successfully defeating Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, re-affirming that a foreign corporation's registration to do business in the state constitutes consent to New Mexico personal jurisdiction.
Aquifer Science, LLC v. Verhines, et al., Cause No. D-202-CV-2014-07209 (2nd Jud. D. N.M. Jan. 29, 2019).
The Second Judicial District Court of New Mexico applied the “conservation” element of the state’s ground water permit statute, NMSA 72-12-3, to uphold the Office of the State Engineer’s denial of a major developer’s (Aquifer Science) application to withdraw ground water in the East Mountains near Albuquerque. In reviewing the application de novo, Judge Shannon Bacon not only agreed with the local landowners who protested the permit that withdrawing the proposed amount of water would significantly impair existing water rights with no feasible mitigation plan, but also concluded that the developer’s application was “contrary to conservation of water within the state,” in violation of NMSA 72-12-3’s requirements. In denying the application, the court rejected Aquifer Science’s claim that that its plan achieved “conservation” by building golf courses as a place to reuse wastewater and determined that Aquifer Science’s other plans to conserve water through efficient appliances, fixtures, and landscaping were “speculative.” The court also concluded that the developer’s failure to consider the impact of climate change on the supply of surface water—and, thus, ground water—when calculating water demand “suggests a lack of long-term planning regarding conservation.”
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.”