The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

Texas Supreme Court Civil Issues Pending: Punitive Damages

By on Posted in Texas

[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.

Texas Supreme Court Civil Issues Pending: Public Utilities

By on Posted in Texas

[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. 

Texas Supreme Court Civil Issues Pending: Products Liability

By on Posted in Texas

[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. 

Texas Supreme Court Civil Issues Pending: Other Issues

By on Posted in Texas

[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. 

Texas Supreme Court Civil Issues Pending: Negligence

By on Posted in Texas

[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.

Texas Supreme Court Civil Issues Pending: Local Government

By on Posted in Texas

[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. 

Texas Supreme Court Civil Issues Pending: Juvenile Law

By on Posted in Texas

[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.

Texas Supreme Court Civil Issues Pending: Jurisdiction

By on Posted in Texas

[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. 

Texas Supreme Court Civil Issues Pending: Judicial Administration

By on Posted in Texas

[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.

Texas Supreme Court Civil Issues Pending: Intentional Torts

By on Posted in Punitive Damages, Texas

[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. 

LexBlog