April 24, 2015

Greetings,

This week, the Texas Supreme Court released 13 new opinions discussing a variety of topics. We review 10 of these opinions. However, one opinion related to taxation issues and two opinions related to free speech issues are not covered as beyond the scope of our firm's practice.

In re Bridgestone Americas Tire Operations, LLC, Case No. 12-0946:

In this case, the Court examined the application of Texas's Forum Non Conveniens statute and the application of the non-resident exception, Tex. Civ. Prac. & Rem. Code Section 71.004(a), in the context of a case brought on behalf of non-resident minor Plaintiffs by their next friend, who is a Texas resident. The Court held the Plaintiffs' grandparents, who were their legal guardians under Mexican law, did not have legal guardianship status under Texas law; therefore, having suit brought by a next friend under Rule 44 was allowed. However, the Court found that the non-resident exception is analyzed based upon the minor Plaintiffs' residency, not the residency of the next friend. Thus, the exception did not apply. The Court granted mandamus and ordered the trial court to dismiss the action.

State v. Clear Channel Outdoor, Inc., Case 13-0053:

The Texas Supreme Court, consistent with its holding in State v. Central Expressway Sign Associates, 302 S.W.3d 866 (Tex. 2009), held that loss of business income is not compensable in the instance of condemnation. The Plaintiff sought compensation for loss of business income from a billboard on condemned property. The Court found that the billboard structure should be included in the valuation of the land at its highest and best use. The Court, however, refused to include any loss of business income because (1) it is viewed as speculative and (2) the land and not the business was condemned.

Brown & Gay Engineering , Inc. v. Olivares, Case No. 13-0605:

In this case, the Court determined that a private engineering design firm that lawfully contracted with the Fort Bend County Toll Road Authority under Section 431.066(b) of the Texas Transportation Code did not qualify for sovereign immunity and held more generally that the rationale of the doctrine does not justify its expansion to cover private contractors generally.

JAW The Pointe, LLC v. Lexington Insurance Company, Case No. 13-0711:

Hurricane Ike resulted in both wind and flood damage to a property, requiring repairs to comply with city ordinances. The policy covered expenses to comply with city ordinances if the expenses were caused by a covered loss. The policy covered wind damage but its anti-concurrent-causation clause excluded coverage "for loss or damage caused directly or indirectly by" flooding, "regardless of any other cause or event that contributes concurrently or in any sequence to the loss." Because the evidence conclusively established that flood damage triggered the enforcement of the city ordinances and thus "directly or indirectly" caused the insured's losses, the Court held the policy excluded coverage for such losses regardless of the fact that wind damage contributed concurrently or in any sequence to the loss.

Vernco Construction v. Nelson, Case 13-0750:

In this commercial litigation case, the Court was confronted with the issue of whether a borrower lacked standing because it assigned the claims at issue to the commercial lender either before or after the lawsuit. The Court declined to reach the issue because the court of appeals based its holding in part on its determination that an addendum to the forebearance agreement was not properly part of the appellate record. The Court determined the addendum was in fact a part of the appellate record and remanded to the court of appeals for further proceedings.

San Antonio Water System v. Nicholas, Case 13-0966:

The Texas Supreme Court here held that the Plaintiff was not improperly subject to a retaliatory discharge under the auspices of the Texas Commission on Human Rights Act. The Plaintiff claimed she was fired after confronting a male employee about repeated lunch invitations to two female employees. The Court found that the repeated lunch invitations could not be considered an actionable sexual harassment claim. Therefore, if opposing the invitations led to the Plaintiff's termination, the Plaintiff could not claim protection from retaliatory discharge under the Texas Commission on Human Rights Act.

JLG Trucking, LLC v. Garza, Case 13-0978:

In this case, the Texas Supreme Court reversed the appellate court and trial court and held that evidence of a second accident was relevant and admissible without the necessity of presenting expert testimony that the second accident caused the alleged injuries. The Court found that the injuries resulting from the second accident were admissible based on relevancy. The Court also found that cross-examination of the Plaintiff's expert was improperly curtailed by exclusion of evidence concerning the second accident.

Randol Mill Pharmacy et al v. Miller, Case 13-1014:

This case involved a claim related to a severe adverse reaction suffered by plaintiff as a result of a compounded drug administered by her physician. She sued the pharmacy and several of its licensed pharmacist employees. Plaintiff failed to serve expert reports on the pharmacy defendants. They moved to dismiss under the Texas Medical Liability Act, but the trial court, affirmed by a divided court of appeals, determined the claim was not subject to the Act. The Texas Supreme Court reversed in this case of first impression regarding compounding pharmacists, finding the claims did fall under the Act and remanded back to the trial court.

Rice University v. Refaey, Case 13-0048:

In a per curiam opinion, the Texas Supreme Court held that a private peace officer for a private university is treated the same as an officer of the state for purposes of application of Texas Civil Practice and Remedies Code Section 51.014(a)(5). The term "officer" was not defined by Section 51.014(a)(5) of the Texas Civil Practice and Remedies Code. The Court, however, found the meaning of "officer" encompassed private peace officers on private university campuses because they serve the public purpose of enforcing state law on private university campuses.

Van Ness v. ETMC First Physicians, Case No. 14-0353:

In this medical malpractice claim, the Court reviewed the sufficiency of an expert report in which the defendants argued the report contained inconsistent, conclusory statements, which failed to link the expert's conclusions to the underlying facts of the case, thereby justifying dismissal. The trial court found that the report was not conclusory and was a good faith efforts to comply with the Texas Medical Liability Act's report requirements. The court of appeals reversed. The Court found the trial court did not abuse its discretion in denying the motion to dismiss, reversed the court of appeals, and remanded to the trial court for further proceedings.

Conclusion:

The Court will meet in conference on Tuesday and Wednesday, April 28-29. Check back with us next week to see what, if any, new opinions the Court releases as a result of those conferences. In the meantime, we hope this updates furthers your practice.

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