Significant Victories
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.
Enter. Crude GP LLC v. Sealy Partners, LLC, 614 S.W.3d 283 (Tex. App.—Houston [14th Dist.] 2020, no pet.)
The underlying case is an oil and gas dispute. another anti-slapp appeal. The Court of Appeals concluded that the trial court erred in denying Enterprise's TCPA motion to dismiss as to several causes of action.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Lopez/Romero v. Ford Motor Co., D-101-cv-2019-03306 (N.M. Dist. Ct. June 26, 2020)
Working with trial counsel The Tracy Firm and Williams Injury Law on behalf of a minor client who was seriously injured in a rollover, DP&S defeated Defendant Ford Motor Company’s motion to dismiss on personal jurisdiction grounds. As it had in past cases, the Court rejected Ford’s arguments that its contacts in New Mexico were insufficient to confer specific jurisdiction, and that its registered agent in New Mexico did not equate to consent jurisdiction.
Hurd v. Novartis Pharmaceuticals Corp., No. 20-CV-262 JAP/GBW (D. N.M. June 12, 2020)
Successfully defeated motion to dismiss filed by Defendant Novartis Pharmaceuticals Corp. in a case alleging that Novartis hid serious side effects of its blood cancer drug Tasigna, finding that the plaintiff was not required to preemptively refute Novartis’ affirmative defenses by alleging the exact date he was diagnosed with the drug's side effects.
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.
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.
Aquifer Science, LLC v. Verhines, et al., D-202-cv-2014-07209 (N.M. Dist. Ct. Jan. 27, 2020)
Working with trial counsel Paul Hultin and the New Mexico Environmental Law Center, who had previously secured an important ground water victory after a 2-week bench trial on behalf of the San Pedro Creek Homeowners’’ Association and other homeowners, DP&S prevailed on a bill of costs in the amount of $379,854.05, plus post-judgment interest. The cost bill was opposed by Aquifer Science and the Office of State Engineer (“OSE”), and the Court rejected arguments made by both parties in favor of DP&S’ clients. The Court further denied motions to reconsider filed by both Aquifer Science and the OSE following the ruling. DP&S continues to serve as lead appellate counsel in this case pending in the New Mexico Court of Appeals.
Jennifer Caudillo, et. al., v. Clariant Corporation, et. al. (N.M. Dist. Ct. Nov. 27, 2019)
DP&S worked with trial counsel Sico Hoelscher Harris LLP on legal research, briefing, and strategy on various pre-trial motions including motions to exclude plaintiffs’ experts, a motion for spoliation sanctions against defendants, and a motion to exclude a defense expert. After securing favorable rulings, the case settled before trial for an undisclosed sum.