The Appellate Strategist : Appellate Lawyers & Attorneys for Updates on Trial Consultations, Amicus Briefs & Punitive Damage Awards

[UPDATED THROUGH APRIL 1, 2010]

Sexual Harassment.
Did plaintiff submit sufficient evidence to establish the elements of a sexual harassment claim?  Was plaintiff constructively discharged under the facts of the case?  Or was the evidence sufficient to support the jury's finding of malice and a subsequent award of punitive damages against a corporate defendant for failure to properly investigation sexual harassment claim?  Waffle House, Inc. v. Williams, No. 07 0205, formerly 2007 WL 290808 (Tex. App. -- Fort Worth 2007), review granted 02/13/09.

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[UPDATED THROUGH APRIL 1, 2010]

Stranded Costs, Transition to Competitive Marketplace.
Is utility entitled to recover interest on certain “stranded costs” it incurred during transition from land-regulated to competitive marketplace? Is utility permitted to recover a valuation panel fee as an expense? Must new on-site generators of electricity continue to pay utility to offset its stranded costs? State of Texas v. Public Utility Commission, No. 08 0421, formerly 263 S.W.3d 448 (Tex. App.—Austin 2008), review granted 06/19/09, and Texas Industrial Energy Consumers v. CenterPoint Energy, No. 08 1727, review granted 06/19/09. 

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[UPDATED THROUGH APRIL 1, 2010]

Causation, Preemption, Safer Alternative Design, Jury Misconduct.
Was claimant required to introduce into evidence at least two statistically significant scientific studies showing that Vioxx more than doubled the risk of heart attack, or is evidence from a clinical trial sufficient? Did claimant’s expert sufficiently account for alternate causes of account for potential alternate causes of heart attack to support a finding of specific causation? Was the evidence sufficient to show that a “proper” warning of the risk of Vioxx would have changed the physician’s decision to prescribe it? Does the Food and Drug Act preempt claims that Vioxx was defectively marketed? Did plaintiff present sufficient proof of a safer alternative design by introducing evidence of a patent application into evidence? Did jury misconduct require a new trial where one of the jurors failed to reveal that he had accepted several interest-free loans from one of the parties? Merck & Co. v. Garza, No. 09 0073, formerly 277 S.W.3d 430 (Tex. App.—San Antonio 2008), review granted 10/23/09.

Seller’s Indemnity.
Were component parts of exterior insulation and finish system a “product” within the meaning of the Products Liability Act? Was an independent contractor a “seller” for purposes of Tex. Civ. Prac. & Rem. Code § 82.002? Was a contractor entitled to receive indemnity when its liability to the homeowner arose solely out of contract? Fresh Coat Inc. v. K 2 Inc., No. 08 0592, formerly 253 S.W.3d 386 (Tex. App.—Beaumont 2008), review granted 09/25/08. 

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[UPDATED THROUGH APRIL 1, 2010]

Civil Forfeiture.
Did the court of appeals err in determining that the trial court incorrectly disregarded the jury’s findings that currency found in a truck was not contraband where there was no direct evidence linking the currency to any drug transaction? If the currency is not contraband, is an innocent bailee of truck where currency was found entitled to currency by right of possession? State of Texas v. $281,420 in U.S. Currency, No. 08 0465, formerly 2008 WL 907565 (Tex. App.—Corpus Christi 2008), review granted 04/17/09.

Lottery, Statutory Construction.
Does Tex. Bus. & Com. Code § 9.406(f), providing for the assignability of “accounts,” including lottery winnings, pre-empt Tex. Govt. Code § 466.406 and 406.410 which prohibit such assignments? Texas Lottery Commission v. First State Bank of DeQueen, No. 08 0523, formerly 254 S.W.3d 677 (Tex. App.—Austin 2008), review granted 09/25/09.

Open Records Act.
Did the court of appeals properly determine that state employee birthdate information was not private and was therefore subject to disclosure under the Texas Public Information Act, Tex. Govt. Code § 552.001 et seq.? Was the prevailing party entitled to attorney’s fees as a matter of law? Texas Comptroller of Public Accounts v. Attorney General of Texas, No. 08 0172, formerly 244 S.W.2d 629 (Tex. App.—Austin 2008), review granted 02/27/09. 

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[UPDATED THROUGH APRIL 1, 2010]

Equine Activity Act.
Do provisions of the Equine Activity Act, Tex. Civ. Prac. & Rem. Code § 87.001 et seq., providing that certain persons are not liable for damages resulting from risks inherent to an equine activity apply to a claim that defendant was negligent in leading plaintiff into a boggy area that frightened the horse? Did the defendant fail to make a reasonable efforts to determine plaintiff’s ability to engage in the equine activity in a safe manner so as to trigger an exception to the protection of the Equine Activity Act? Loftin v. Lee, No. 09 0313, formerly 277 S.W.3d 519 (Tex. App.—Tyler 2009), review granted 10/23/09.

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[UPDATED THROUGH APRIL 1, 2010]

Governmental Immunity and Waiver, Declaratory Judgment Act.
Did the Dallas City Charter and/or Tex. Loc. Gov. Code § 51.075, providing that a municipality may “plea and be impleaded in any court,” waive governmental immunity? May a municipality which has waived governmental immunity through asserting a counterclaim reinstate that immunity by dismissing the counterclaim? Does the Declaratory Judgment Act permit a suit to determine the party’s rights despite governmental immunity? City of Dallas v. Martin, No. 07 0288, formerly 214 S.W.3d 638 (Tex. App.—Dallas 2006), review granted 10/23/09.

Judicial Review of Education Commissioner’s Decision, Jurisdiction, Necessary Parties.
In a suit to judicially review the decision of a Commissioner of Education pursuant to Tex. Educ. Code § 21.307, is the Commissioner considered a party to the suit who must consent to venue in Travis County? Presidio Ind. Sch. Dist. v. Scott, No. 08 0958, formerly 266 S.W.3d 531 (Tex. App.—Austin 2008), review granted 08/21/09.

Standing, Municipal Propositions.
Did citizens who sponsored a citizen-initiated referendum have standing to seek a declaratory judgment that the proposition is valid and must be enforced? May a provision included within the proposition, that any taxpayer may maintain an action to prevail expenditures made in violation of a proposition, suffice to confer standing? Robinson v. White, No. 08 0658, formerly 260 S.W.3d 463 (Tex. App.—Houston [14th Dist.] 2008), review granted 06/26/09.

Takings, Res Judicata.
Does the finding by the Dallas Urban Rehabilitation Standards Board, subsequently affirmed by a district court, that certain property constituted an urban nuisance, constitute res judicata, precluding a subsequent takings claim? City of Dallas v. Stewart, No. 09 0257, formerly 2008 WL 5177168 (Tex. App.—Dallas 2008), review granted 11/20/09.

Waiver of Governmental Immunity, Bond Contract.
Does section 271.152 of the Local Government Code waive governmental immunity? Does the bond contract in question require the governmental entity to place the bond issue on the next bond election following the contract, or is it required to place the issue on all subsequent bond elections until passed? Kirby Lake Development, Ltd. v. Clear Lake City Water Authority, No. 08 1003, formerly 278 S.W.3d 41 (Tex. App.—Houston [14th Dist. 2008), review granted 10/23/08. 

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[UPDATED THROUGH APRIL 1, 2010]

Prostitution.
May a 13-year-old juvenile be adjudicated delinquent for the offense of prostitution, even though juvenile could not have given valid consent to sexual acts? In re B.W., No. 08 1044, formerly 274 S.W.3d 179 (Tex. App.—Houston [1st Dist.] 2008), review granted 10/23/09.

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[UPDATED THROUGH APRIL 1, 2010]

Personal Jurisdiction Over Corporate Officers.
Are corporate officers subject to personal jurisdiction in Texas for claims arising under the Texas Trust Fund Act where officers controlled trust funds intended for payments of persons providing labor or material to Texas construction projects? May Texas assert personal jurisdiction over corporate officers with respect to a fraud claim where it is alleged that corporate officers permitted claimant to continue work on project when they knew he would not be paid? Kelly v. General Interior Construction, No. 08 0669, formerly 262 S.W.3d 79 (Tex. App.—Houston [14th Dist.] 2008, review granted 06/05/09. 

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[UPDATED THROUGH APRIL 1, 2010]

Law of the Case Doctrine, Jurisdiction of State Courts After Removal, Recusal.
Does a federal court order establish law of the case with respect to whether remand had properly been carried out? Did appeal of remand order in federal court deprive the state court of jurisdiction? Did judge err in ruling on his own recusal motion when he was referred to hear a recusal motion directed at another judge? Gonzalez v. Gonzalez, No. 08 0961, formerly 267 S.W.3d 556 (Tex. App.—Houston [14th Dist.] 2008), review granted 11/20/09.

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[UPDATED THROUGH APRIL 1, 2010]

Conversion, Punitive Damages.
Does probative evidence support the finding that defendant stole 13 cattle? Did evidence support finding that defendant acted with malice under the “clear and convincing standard?” Is award of over $1 million in punitive damages constitutionally excessive in case involving theft of cattle worth approximately $5,000? Bennett v. Reynolds, No. 08-0074, formerly 242 S.W.3d 866 (Tex. App.—Austin 2007), review granted 08/28/09. 

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[UPDATED THROUGH APRIL 1, 2010]

Assumption of Liability Exclusion.
Where the insured is immune from tort liability as a government contractor and the alleged contractual liability mirrors tort liability, does the insurance policy’s assumption of contractual liability exclusion apply? Did insurer waive its coverage defenses by associating in the defense of the insured? Gilbert Texas Construction v. Certain Underwriters of Lloyds, No. 08 0246, formerly 245 S.W.3d 29 (Tex. App.—Dallas 2007), review granted 04/17/09.

Mold Exclusion, Expert Qualifications.
Does a mold exclusion in a homeowner’s policy apply for mold caused by plumbing leak? Was expert relied upon by insured to establish causation qualified and reliable? State Farm Lloyds v. Page, No. 08-0799, formerly 249 S.W.3d 257 (Tex. App.—Waco 2008), review granted 06/19/09.

Workers' Compensation, Causation, Attorney’s Fees.
Did claimant’s causation expert properly employ differential diagnosis to determine that work-related knee injury was a producing cause of the worker’s death? Did the trial court submit an incorrect definition of “producing cause” by failing to include the concept of “substantial factor?” Does the Texas Constitution guarantee a jury trial on the issue of attorney’s fees in worker’s compensation cases? Transcontinental Ins. Co. v. Crump, No. 09 0005, formerly 274 S.W.3d 86 (Tex. App.—Houston [14th Dist.] 2008), review granted 10/23/09.

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[UPDATED THROUGH APRIL 1, 2010]

Application of Expert Report Requirements.
Does section 74.531 of the Civil Practice & Remedies Code, which requires the production of an expert report in the early stages of a healthcare liability claim, apply to the claims against a water park with respect to the placement of a defibrillator and the device’s use by its employees and to claims that the park’s medical advisor was negligent in failing to provide certain advice and recommendations to the water park concerning the defibrillator? Yamada v. Friend, No. 08 0262, formerly 2008 WL 5583690 (Tex. App.—Fort Worth 2008), review granted 02/13/09.

Attorney’s Fees.
Was physician entitled to award of attorney’s fees pursuant to section 74.351 of the Civil Practice and Remedies Code, permitting an award of fees incurred by the physician in a case where the claimant fails to provide a timely expert report, where the physician’s attorney did not testify regarding the reasonableness of the requested fee? Garcia v. Gomez, No. 09 0139, formerly 286 S.W.3d 445 (Tex. App.—Corpus Christi 2008), review granted 10/23/09.

Constitutionality of Limitations Provision.
Does the two-year statute of limitations for healthcare liability claims in Tex. Civ. Prac. & Rem. Code § 74.251 violate the open courts provision of the Texas Constitution in a case involving a sponge left in a surgical patient? Walters v. Cleveland Regional Med. Center, No. 08 0169, formerly 264 S.W.3d 154 (Tex. App.—Houston [1st Dist.] 2007), review granted 03/27/09.

Constitutionality of Statute of Repose.
Is the two-year statute of repose applicable to health care claims under Tex. Prac. & Rem. Code § 74.051(b) violate the open courts provision of the Texas Constitution? Methodist Health Care System of San Antonio v. Rankin, No. 08 0316, formerly 261 S.W.3d 93 (Tex. App.—San Antonio 2008), review granted 03/27/09.

Expert Reports, Extension of Time.
Was patient entitled to an extension of time to cure deficiency in an expert’s report that failed to state a causal link between the physician’s alleged breaches of duty and the patient’s injury? Samlowski v. Wooten, No. 08 0667, formerly 282 S.W.3d 82 (Tex. App.—Waco 2008), review granted 06/19/09.

Limitations.
Does the “relation back” doctrine apply to save claims against Health Science Center first asserted in an amended pleading where original pleading had only the named physician, who was an employee of the center? University of Texas Health Science Center at San Antonio v. Bailey, No. 08 0419, formerly 261 S.W.3d 147 (Tex. App.—San Antonio 2008), review granted 06/26/09. 

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[UPDATED THROUGH APRIL 1, 2010]

Availability of Interlocutory Appeal.
Were a private hospital and a resident employed by the hospital entitled to bring an interlocutory appeal of a denial of a summary judgment based upon governmental immunity? Based on sections 3.12006 and 3.12007 of the Texas Health Code, when did the hospital or government unit and the resident, a government employee for purposes of the governmental immunity defense? Klein v. Hernandez, No. 08 0453, formerly 260 S.W.3d 1 (Tex. App.—Houston [1st Dist.] 2008), review granted 04/17/09.

Inverse Condemnation.
Did state’s easement give it the right to remove soil or did the removal of such soil give rise to a separate inverse condemnation claim, thereby avoiding governmental immunity? State of Texas v. Brownlow, No. 08-0551, formerly 251 S.W.3d 756 (Tex. App.—Houston [14th Dist.] 2008), review granted 08/28/09.

Retroactivity of Statutes. 
Did an amendment to Tex. Loc. Govt. Code § 411.034, providing that compliance with the notice provisions of the Texas Tort Claims Act was a prerequisite to subject matter jurisdiction, apply to a lawsuit filed before the amendment’s effective date? University of Texas Southwestern Medical Center at Dallas v. Estate of Arancibia, No. 08 0215, formerly 244 S.W.3d 455 (Tex. App.—Dallas 2007), review granted 06/26/09.

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[UPDATED THROUGH APRIL 1, 2010]

Availability of Free Record.
Were petitioner’s due process rights violated when the trial court denied him a free clerk’s record and reporter’s record pursuant to Tex. Civ. Prac. & Rem. Code § 13.003? Did petitioner waive his complaint by failing to raise constitutional arguments at the hearing on his request for a free record? In the Interest of B.G., No. 07 0960, formerly 2007 WL 2713764 (Tex. App.—Tyler 2007), review granted 05/05/09.

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[UPDATED THROUGH APRIL 1, 2010]

Retaliatory Discharge.
Does the Anti-Retaliation Act, Tex. Lab. Code § 451.003, require a worker to exhaust administrative remedies before filing suit? Travis Central Appraisal District v. Norman, No. 09 0108, formerly 274 S.W.3d 902 (Tex. App.—Austin 2008), review granted 08/28/09.

Sexual Harassment.
Did plaintiff submit sufficient evidence to establish the elements of a sexual harassment claim? Was plaintiff constructively discharged under the facts of the case? Or was the evidence sufficient to support the jury’s finding of malice and a subsequent award of punitive damages against a corporate defendant for failure to properly investigate sexual harassment claim? Waffle House, Inc. v. Williams, No. 07 0205, formerly 2007 WL 290808 (Tex. App.—Fort Worth 2007), review granted 02/13/09. 

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[UPDATED THROUGH APRIL 1, 2010]

Depository Contracts, Probate Code.
Did bank breach a depository contract as a matter of law when it granted access to an estate’s account to a person presenting false Letter of Administration? Does section 186 of the Texas Probate Code, providing that Letters of Administration are sufficient evidence of the appointment and qualification of a person to serve as representative of an estate, provide a defense to the bank’s actions? Jefferson State Bank v. Lenk, No. 09 0269, formerly 2009 WL 618693 (Tex. App.—San Antonio 2009), review granted 11/20/09.

Parol Evidence Rule, Fraud, Measure of Damages.
Is argument that payment of money, the recovery of which was the only damage sought, was made by entity other than plaintiff an issue of capacity that is waivable if an issue of standing that is not waivable? Was the testimony supporting certain categories of damages inadmissible parol evidence? Did claimant fail to present sufficient evidence out-of-pocket or benefit-of-the-bargain damages? ERI Consulting Engineers, Inc. v. Swinnea, No. 07 1042, formerly 236 S.W.3d 825 (Tex. App.—Tyler 2007), review granted 10/23/09.

Third-Party Beneficiary Status, Consequential Damages.
Did the trial court correctly disregard the jury’s damages findings when plaintiff failed to obtain a finding that it was a party to the agreement? With certain trusts, courts have related to the contractual parties, entitled to enforce the contract of third-party beneficiaries? Under the record, were plaintiffs entitled to recover consequential damages in the form of lost opportunity damages when they did not present evidence that defendant was aware that plaintiffs could not have obtained financing from other sources? Basic Capital Management v. Dynex Commercial, No. 08 0244, formerly 254 S.W.3d 588 (Tex. App.—Dallas 2008), review granted 04/17/09. 

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[UPDATED THROUGH APRIL 1, 2010]

Jury Instructions—Mitigation of Damages—Usury—Consumer Status.
Did the trial court correctly submit the issue of causation in its jury instruction? Was lender’s oral agreement to pay delinquent property taxes supported by consideration? Did lender’s agreement to pay taxes amount to the provision of an escrow service thereby conferring consumer status on borrower under the Deceptive Trade Practices Act? Did lender commit usury by sending a demand in the absence of proof the debtor actually received and read the document? American General Finance, Inc. v. Allen, No. 08 0110, formerly 251 S.W.3d 676 (Tex. App.—San Antonio), review granted 02/27/09. 

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[UPDATED THROUGH APRIL 1, 2010]

Takings, Standing.
Does the operator of non-consent towing and storage facility have a sufficient property interest in the stored vehicles to support a takings claim? May the operator assert a claim under the Declaratory Judgment Act? Are operator’s claims moot since it is no longer licensed to operate a vehicle storage facility? City of Dallas v. VSC, LLC, No. 08 0265, formerly 242 S.W.3d 584 (Tex. App.—Dallas 2008), review granted 10/23/09.

Takings, Breach Access Easements.
Does Texas recognize a “rolling” public beachfront access easement which migrates according to the naturally-caused changes in the location of the vegetation line? Is any such easement derived from common law doctrines or from a construction of the Open Beaches Act? To what extent is a landowner entitled to receive compensation under Texas law where any limitations on the use of the property are affected by a landward migration of a rolling easement?Severance v. Patterson, No. 09 0387, formerly 566 F.3d 490 (5th Cir. 2009), review granted 05/15/09. 

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[UPDATED THROUGH APRIL 1, 2010]

Commercially Reasonable Sales Upon Repossession.
Did the evidence establish that the sale of repossessed vehicles were commercially reasonable under the Uniform Commercial Code § 9.610. Regal Finance v. Tex Star Motors, No. 08 0148, formerly 246 S.W.3d 745 (Tex. App.—Houston [14th Dist.] 2008), review granted 03/27/09.

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[UPDATED THROUGH APRIL 1, 2010]

Expanded Scope of Judicial Review in Arbitration.
Does the Texas Arbitration Act permit enforcement of a contractual provision expanding the scope of judicial review of an arbitration award? NAFTA Traders v. Quinn, No. 08 0613, formerly 275 S.W.3d 795 (Tex. App.—Dallas 2008), review granted 03/27/09. 

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