Passion. Preparation. Persistence.

Texas Supreme Court Weekly Update June 28, 2021

On Behalf of | Jun 28, 2021 | Texas Supreme Court Weekly Update

Over the last several weeks the court has issued several opinions. This blog discusses two opinions which addresses issues of particular interest.

First, in In re Alexander Guevara and Jose Alfredo Guevara, the Texas Supreme Court considered a mandamus petition seeking review of the trial court’s order to strike and exclude controverting affidavits from a chiropractor. In this case, the counter affidavits were offered under Section 18.001 of the Texas Civil Practice and Remedies Code to challenge the necessity and reasonableness of medical expenses alleged in the affidavits by the real party of interest, Agapito Escobedo. Escobedo argued that the controverting affidavits do not comply with Section 18.001 (f) for 3 reasons: (1) Horne is not qualified to testify in contravention of the reasonableness or necessity of Escobedo’s medical expenses, (2) the opinions stated in the counter affidavits are not relevant or based on a reliable foundation, and (3) the opinions stated in the counter affidavits are conclusory and lack the reliability required for the admission of expert testimony. Escobedo’s motion, in addition to requesting to strike the counter affidavits, requested that the Guevaras be prohibited from arguing or even introducing evidence that the medical expenses incurred are unreasonable or unnecessary.

The Texas Supreme Court noted that following their In re Allstate Indemnity Co. decision on May 7th mandamus relief is appropriate when a trial court issues an order under Section 18.001 that vitiates or severely compromises a party’s defense by precluding the party offering the counter affidavit from challenging the necessity or reasonableness of the medical expenses at trial. In this instance, the trial court’s order prohibited the Guevaras from introducing evidence or argument that Escobedo produced unreasonable or unnecessary medical expenses. Therefore, the Texas Supreme Court ordered the trial court to vacate its. But, this was ordered without prejudice to Escobedo’s ability to re-file a motion to challenge whether Horne’s counter affidavits comply with 18.001 considering In re Allstate Indemnity.

Next, in Inc. v. Morgan McMillan, the Texas Supreme Court considered whether Amazon, under Texas products-liability law, is a “seller” of third-party products sold on its website when it does not hold title to the product but controls the transaction and delivery process through its Fulfillment by Amazon (FBA) service. Amazon maintains significant control over products sold through FBA, can refuse products, controls all aspects of the customer service provided to its customers, and processes all the returns and customer refunds for the FBA products in which the merchants must reimburse amazon. This case involves a product sold by a third-party merchant that used the FBA service. At the close of discovery, Amazon moved for summary judgement claiming that it was not a “seller”, but the district court denied the motion.

On appeal, the Texas Supreme Courtheld that Amazon is not a “seller” under Texas law when it does not hold title to products sold on its website but only controls the process of the transaction. “Seller” is defined in the Civil Practice and Remedies Code. It follows and does not expand upon the common-law definition. Under the definition of “seller,” when the ultimate consumer obtains a defective product through an ordinary sale, the potentiality liable sellers are limited to those who relinquished title to the product at some point in the distribution chain. Therefore, when Amazon controls the transaction and delivery process but does not hold title to the product, Amazon is not a “seller” under Texas law.


FindLaw Network