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June 28, 2021

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 Amazon.com 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.

July 16, 2021

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

First, in WWLC Investment L.P. v. Sorab Miraki, the Texas Supreme Court considered whether there was proper service on a limited partnership when process was served on an employee who was described as CEO, president, and owner. WWLC Investment (Plaintiff), a Texas limited partnership, was seeking a bill of review to vacate a default judgment against it by Miraki (Defendant). Plaintiff contends that process was not properly served. The evidence established that the Defendant only served an employee who was described as CEO, president, and owner. But a limited partnership’s agents for service of process are its registered agent and its general partner. The trial court denied all relief because they believed that the employee that was served had to be considered Plaintiff’s general partner. The court of appeals affirmed.

The Texas Supreme Court disagreed and held that the Plaintiff demonstrated that it was not properly served. The Court reasoned that unlike service on a corporation, service on a limited partnership Is not authorized to be made through an officer. Although the trial court in this case found that the person served was the only person involved with the Plaintiff, this fact alone does not qualify the employee as a general partner of the Plaintiff. A general partner of a limited partnership is defined as someone who is admitted to a limited partnership as a general partner according to the governing documents of the partnership.

Next, in In re USAA General Indemnity Co., the Texas Supreme Court considered (1) whether the trial court abused its discretion when it ordered the USAA corporate representatives to be deposed before the injured driver got a judicial determination of preconditions establishing the insurer’s liability or (2) whether the requested deposition topics are overly broad. This case involved principal issues in an underinsured motorist claim between an insurance carrier, USAA, and its insured, Wearden. In this case, the insured sued its insurance carrier to recover benefits under his policy’s underinsured-motorist provisions; however, the insured  claimed no bad-faith or other extracontractual claims. The insurance carrier claimed an affirmative defense that the insured did not comply with all the conditions necessary to recover. They also claimed that the liability of the driver who hit the insured’s vehicle and the nature and extent of the damages have not been established by judgment or agreement. The trial court denied the insurance carrier’s motion to quash, and then the appellate court denied the insurance carrier’s mandamus petition.

The Texas Supreme Court held that the insured is entitled to depose the carrier’s corporate representative, but the deposition topics exceeded the scope of the deposition. The insurance carrier claims that the trial court abused its discretion by not quashing the insured’s deposition notice because none of their employees have relevant information pertaining to the wreck at issue. But when insurance carriers investigate their insureds’ claims, they are bound to uncover pertinent information regarding the insured and the insured’s defense, and thus the insured argues that he should be able to learn what the insurance carrier knows about the wreck. The Court reasoned that entitlement to underinsured motorist benefits is a prerequisite to extracontractual bad-faith claims. A plaintiff cannot obtain discovery on an unasserted, abated, or unripe bad faith claim under the guise of investigating a claim for benefits. Because of the narrow scope of the crash in dispute, the Court concluded that some of the insured’s noticed deposition topics exceed the scope of appropriate discovery. However, the Court confirmed that information that the insurance carrier has that is not privileged and is relevant to the existence and amount of damages at issue is discoverable information. The Court noted that an insurance carrier may establish that proportionality concerns foreclose the deposition, but that here the carrier failed to do so. Therefore, the Court held that the trial court abused its discretion by denying the carrier’s motion to quash the overbroad deposition topics.

June 22, 2021

Over the last several weeks, the court has issued several opinions and grants. This blog discusses one opinion which addresses issues of particular interest.

In Lemuel David Hogan v. Stephanie Montagne Zoanni, the Texas Supreme Court considered (1) whether David Hogan (“Plaintiff”) complied with the Defamation Mitigation Act by sending a sufficient correction, clarification, or retraction request and if he did not comply, then (2) whether the consequence for an insufficient request is dismissal. This was a case of defamation by an ex-husband against his ex-wife. After their divorces, Stephanie Zoanni (“Defendant”) made various statements to authorities regarding the Plaintiff’s character. Plaintiff then sent Defendant a letter asking her to stop all defamation of his character and filed suit against her for defamation. On the first day of trial, Defendant moved for a directed verdict as to Plaintiff’s nine newly added statements and declined the trial court’s offer of an abatement. The trial court denied Defendant’s motion and included all thirteen statements, including the nine newly added statements. The jury returned a verdict for the Plaintiff. The appellate court, divided, reversed, and remanded the case holding that the Plaintiff could not recover for the nine newly added statements.

The Texas Supreme Court held that the Defamation Mitigation Act directs an abatement of claims and loss of exemplary damages instead of dismissal, and the Defendant is authorized to seek that relief. Therefore, because that remedy was available to Defendant when the Plaintiff amended his complaint, the Court held that the trial court did not err by denying her motion for directed verdict. The statute provides two avenues, either (a) allows plaintiffs to emphasize defamatory publications to enable defendants to take corrective action and mitigate injury, or (b) allows defendant to change potentially defamatory statements to mitigate damages and limit liability. Both options provide defendant with the requisite notice for plaintiff to maintain a defamation action. Although the statute encourages plaintiff to make prompt requests, it does not shield a defendant from all liability if a plaintiff merely fails to make that request or does so in a manner that is incorrect. The Court further reasons that the appellate court failed to recognize that under the Defamation Mitigation Act all roads lead to loss of exemplary damages rather than dismissal. Here, Defendant elected not to pursue a remedy of abatement and rejected the trial court’s offer to abate the suit to receive the statutory request. Therefore, she waived the abatement remedy and the opportunity to receive the statutory request. She also elected not to abate to remedy the plaintiff’s alleged failure to provide a sufficient request and therefore waived any complaints about defective notice.

Next, In Rodney Draughon v. Joycie Johnson, the Texas Supreme Court considered the burden of proving a statute of limitations defense and/or tolling of statute of limitations to obtain summary judgement. This case involved a quiet title action in which Draughon, alleging mental incapacity, was seeking to avoid an eviction from property that he inherited. Draughon alleged that due to his lack of capacity, a deed signed years earlier to his aunt, Joycie Johnson, (“Aunt”) is void. Draughon further contends that he did not have the mental capacity needed to sign the deed to Aunt and that she was aware of his incapacity, which makes her claim to the property invalid.

Aunt, based on the statute of limitations, moved for summary judgement. In response, Draughon invoked the unsound-mind tolling statute. Aunt replied that her motion for summary judgment was not a no-evidence motion, but instead presented evidence that Draughons suit was barred because the deed was recorded more than eleven years before a suit was filed – long after the four-year statute of limitations. She also objected to all Draughons affidavits. In response, Draughon argued that Aunt’s motion for summary judgement was a no-evidence motion but that she failed to argue that he had no evidence to support is mental incapacity claim. He further argued that she had a burden to produce evidence that raised a genuine issue of material fact regarding his mental capacity to sign the deed, but she failed to do so.

The trial court sustained Aunt’s objections to the affidavits and granted her motion for summary judgement. Draughon appealed, arguing that because Aunt failed to negate the tolling doctrine, the trial court erred. The appellate court affirmed. The Texas Supreme Court disagreed and held that Aunt’s motion did not conclusively negate Draughons unsound-mind tolling. The Court reasoned that a defendant moving for summary judgement on the affirmative defense of limitations bears the burden of establishing the date in which the cause of action accrued.

A plaintiff may raise an issue regarding which days after the accrual date should count toward the limitation period. Any issues that arise, affecting the calculation, becomes part of the defendant’s burden. For summary judgement, the burden is on the defendant to negate the discovery rule and the burden does not shift to the plaintiff until the defendant establishes that he or she is entitled to summary judgement and the burden at trial is immaterial. The court explains that a plaintiff’s claim that limitations was tolled falls within the issues affecting the running of limitations which the defendant has the burden. Thus, the defendant must conclusively negate any tolling doctrines asserted to obtain traditional summary judgement on statute of limitation grounds.

June 18, 2021

Over the last several weeks the Texas Supreme Court issued several opinions. This blog discusses two of those opinions, which provide guidance on several important issues.

First, in In re K&L Auto Crushers LLC and Thomas Gothard Jr., the Texas Supreme Court addressed first whether defendants are entitled to mandamus relief from the trial court’s rejection of their discovery requests to medical providers on the reasonableness of fees charged. This case involves a personal-injury suit after a motor-vehicle collided with a tractor-trailer rig. The Plaintiff moved to quash the subpoenas served by the Defendant’s and the trial court help in favor of the Plaintiff, quashing the subpoenas without a basis for its decision. The trial court later denied a motion for reconsideration and the appellate court denied the Defendant’s petition for writ of mandamus for failure to illustrate entitlement for relief. The defendants, a trucking company, and its driver, argue that the trial court abused its discretion by quashing their discovery requests, including the requests for information regarding the Plaintiff’s medical providers’ negotiated rates and costs. The issue in this case is like a case decided by the Texas Supreme Court in 2018 – In re North Cypress Medical Center. In re N. Cypress Med. Ctr. Operating Co., 559 S.W.3d 128, 129 (Tex. 2018) (The Court held that the negotiated rates a medical provider charges to patients’ private insurers were relevant and discoverable.).

On review, the Texas Supreme Court held that the defendant’s narrowed requests were relevant and thus the trial court abused its discretion by denying the defendants from discovery of that information. The Court reasoned that the narrowed requests were sufficiently tailored, the Plaintiff and the providers failed to provide evidence that established that the requests were unduly burdensome or harassing, and the trial court failed to consider whether a protective order would reasonably protect against the disclosure of any trade secrets or confidential information. Therefore, the Court reasoned that the information that they found relevant to the reasonableness in North Cypress is equally relevant here.

Next, in Aerotek Inc. v. Lerone Boyd et al., the Texas Supreme Court addressed two issues. First, how the efficacy of a security procedure is shown and second, once it is shown, whether an alleged signatory’s simple denial of signing the record is sufficient to prevent attribution of an electronic signature to him. This case involves a discrimination and retaliation action after the four Plaintiff’s were terminated from Aerotek. Aerotek moved to compel arbitration in accordance with the Mutual Arbitration Agreement (MAA) that all four Plaintiffs signed during the hiring process. But the four Plaintiffs opposed the motion arguing that they never saw or signed a MAA. After a hearing on Aerotek’s motion, the trial court refused to compel arbitration. The court of appeals, although divided, affirmed in part, and reversed in part. They reversed on the question of whether the electronic signature on the MAA was conclusive against the Plaintiffs despite their contentions otherwise.

The Texas Supreme Court held that the efficacy of a security procedure is shown and therefore, the electronic signatures are conclusively established. The Court reasoned that when parties to a transaction agree to proceed using electronic means, the Texas Uniform Electronic Transactions Act provides a standard for attributing electronic signatures to the parties of the transaction. According to Section 322.009(a), an “electronic signature is attributable to a person if it was the act of the person.” The Court reasoned that this can be shown in any manner, including, as seen here, a showing of the efficacy of any security procedure used to determine who the electronic signature is attributable to. A security procedure is defined in Section 322.002(13) as anything that’s purpose is to verify that “an electronic signature, record, or performance is that of a specific person or for detecting changes or errors in the information.” According to the Court, the efficacy of the security procedure provides a link between the electronic record stored and the persons that are apart of the transaction.

June 1, 2021

Over the last several weeks, the Texas Supreme Court has been very busy and has issued opinions on a variety of issues including the interplay between contractual provisions and evidence of actual control in the evaluation of whether a worker is an independent contractor and provided guidance on controverting affidavits under Section 18.001 of the Texas Civil Practice and Remedies Code. Each of these opinions is briefly summarized in this blog:

  1.   In Waste Management of Texas Inc. and Rigoberto Zelaya v. Robert Stevenson, the Texas Supreme Court considered whether a temporary employee hired through a staffing agency was an employee of Waste Management for workers compensation purposes. Stevenson was injured on the job while working temporarily on a Waste Management garbage-truck. He was employed through a staffing agency that had a contract with Waste Management, which specified that temporary workers like Stevenson “shall be independent contractors in respect of Waste Management.”

After Stevenson was injured he applied for workers compensation benefits under the staffing agency’s workers compensation clause and then sued Waste Management alleging common-law negligence. The trial court granted summary judgment for Waste Management after it argued that the exclusive remedy provision of the Workers’ Compensation Act barred Stevenson’s claims. The 14th District Court of Appeals reversed, holding that a genuine fact issue existed as to whether Stevenson was an employee of Waste Management.

On appeal, the Court applied the “right-to-control” test and noted that the summary judgment evidence showed that Waste Management controlled the details and methods of Stevenson’s work. Ultimately, the Court concluded that, while the terms of the Master Agreement are a factor to be considered, the contract is not dispositive, and in this case, it did not create a fact issue sufficient to avoid summary judgment in light of the undisputed evidence that Waste Management exercised actual control over Stevenson’s work.

  1. In Catholic Diocese of El Paso and Heritage Operating L.P. v. Rita Porter et al., the Texas Supreme Court addressed first whether volunteers for a vendor on the church property are invitees under premises-liability law and second whether the trial court’s failure to instruct jurors to disregard a “nobody’s responsible” argument should be reversed when unavoidable accident was not pleaded.

This case involved 4-H volunteers that were burned in a fire at a booth that the 4-H rented from the church during an annual festival. The 4-H provided its own equipment, and the church did not receive any part of the 4-H’s sales. The parents of the 4 teenage volunteers sued the Church and Heritage Operating, which allegedly filled the 4-H’s propane tank. At trial, the jury found that the 4-H volunteers were licensees on the church property, and the trial court rendered a take-nothing judgment on the verdict. The court of appeals held that the volunteers were the Church’s invitees as a matter of law but agreed with the trial court’s ruling regarding Heritage. The court of appeals also determined that the trial court erred by failing to correct a statement by the Church’s attorney that no one might be responsible.

On review, the Texas Supreme Court held that the 4-H volunteers were licensees as a matter of law and that counsel’s argument that no one might be responsible was proper.

First, the Court clarified that, absent unusual circumstances, a person on property performing work for a third party usually benefits the third party, not the property owner, and therefore, that person is not the owner’s invitee.

Second, the Court reasoned that it was not error for the trial court to refuse to instruct the jury to disregard counsel’s argument that the jury could “find nobody’s responsible,” because (1) counsel correctly stated the law, i.e. juries are not required to find someone at fault, and (2) counsel’s argument was “well within the evidence” because the evidence present at the 4-week trial was conflicting.

  1. In re Allstate Indemnity Co. was a mandamus petition in which the Court was asked to consider various issues relating to controverting affidavits under Section 18.001 of the Texas Civil Practice and Remedies Code.

 Ultimately, the Court held that (1) Section 18.001 does not require a controverting affidavit to meet the admissibility requirements for expert testimony, (2) a controverting affiant does not need to be a medical professional in the same medical field to controvert the reasonableness of medical charges, (3) “reasonable notice” in this context if equivalent to the fair notice pleading standard under Rule 47 of the Texas Rules of Civil Procedure, (4) nothing in Section 18.001 supports prohibiting a defendant from presenting its own evidence regarding the reasonableness of a plaintiff’s medical expenses or challenging the plaintiff’s evidence through cross examination or jury argument, and (5) in light of the scope of the trial court’s order in this case, mandamus relief was appropriate.

  1. In In re USAA General Indemnity Co., the underlying motor vehicle accident case was tried and a negligence verdict returned; however, the case was settled and dismissed without entering judgment on the jury’s verdict. The UIM insurer consented to be bound to the judgment on the negligence verdict and asked the trial court to render judgment in its favor on the jury’s verdict. The trial court declined to do so, and the insurer sought mandamus relief.

The Texas Supreme Court concluded that the trial court did not abuse its discretion in declining to render judgment for the insurer on the verdict. First, the Court explained that collateral estoppel does not apply to prevent an insured from relitigating a motorist’s negligence in the absence of a final judgment. Second, the Court explained that for purposes of calculating UIM benefits, the judgment, rather than the jury’s verdict, establishes the amount an insured is “legally entitled to recover,” and that a party’s pre-judgment agreed dismissal renders the jury’s verdict unenforceable. The insurer’s post-verdict consent did not revive the verdict or otherwise alter the effect of the pre-judgment settlement and dismissal entered in this case.

  1. Finally, in JLB Builders LLC v. Jose Hernandez, the Texas Supreme Court ruled on whether the evidence established that JLB retained sufficient control – by contract or by the exercise of actual control — over a subcontractor’s work to be liable for injuries resulting from the work.

In this case, Hernandez was an employee of Capform, an independent contractor of JLB, and he was injured on a high-rise construction project when a rebar towed fell on his legs. Contending that JLB retained contractual and actual control over Capform’s work, Hernandez sued JLB for negligence and gross negligence. The trial court granted traditional and no-evidence summary judgment in favor of JLB. The court of appeals ultimately reversed the trial court’s judgment as to the negligence claim.

On review, the Texas Supreme Court concluded that no evidence had been raised to establish the existence of a duty and affirmed the trial court’s judgment. The Court explained that the summary judgment evidence showed merely that JLB controlled the overall timing and sequence of work being performed by various independent subcontractors and that JLB has a safety employee at the work site. Such evidence is insufficient to raise a fact issue as to whether a general contractor exercised actual control over a subcontractor with respect to the injury-causing work.

March 7, 2021

This week the Texas Supreme Court issued an opinion that provides much needed clarification on the requirements imposed on controverting affidavits under Section 18.001 of the Texas Civil Practice and Remedies Code.

Specifically, in the matter of In re Allstate Indemnity Company, a mandamus proceeding, the Court addressed whether the trial court abused its discretion by striking a timely served controverting affidavit. After hearing oral arguments on February 24, 2021, the Court today issued an opinion with the following key conclusions:

  • A qualified medical coding and auditing expert may testify about the reasonableness of the medical expenses described in the initial affidavits.
  • A medical coding and auditing expert may rely on databases of medical expenses.
  • The “reasonable notice” requirement is similar in meaning to the “fair notice” pleading requirement, which means that a controverting affidavit provides reasonable notice if the opposing party can ascertain from the controverting affidavit each charge that is being controverted as unreasonable and the bases on which those charges are being challenged.
  • Section 18.001(f) does not require an opinion expressed in a controverting affidavit to meet the admissibility requirements for expert testimony.
  • Nothing in Section 18.001 provides for the exclusion of evidence based on the absence of a proper controverting affidavit.
  • An order from the trial court that not only strikes a controverting affidavit but also (1) precludes a defendant from presenting its own evidence on the reasonableness of the claimant’s medical expenses and (2) prohibits a defendant from challenging the claimant’s evidence through cross-examination or jury argument, vitiates or severely compromises the defense, and Mandamus relief is an appropriate remedy.

 

A copy of the opinion is available at https://www.txcourts.gov/media/1452189/200071.pdf.

All briefing and video of oral arguments are available at https://www.txcourts.gov/supreme/orders-opinions/2021/may/may-7-2021/

March 5, 2021

Last week the Texas Supreme Court issued one opinion and no grants. This blog discusses that opinion which addresses designation of unknown responsible third parties.

In In re Gilberto Gonzales, Gonzales sued Houston Distributing for negligently causing an automobile accident. He alleged that the truck driver employed by Houston Distributing rear-ended a pickup truck behind Gonzales, which caused the pickup truck to rear-end Gonzales.

Houston Distributing filed a motion for leave to designate an unknown person (“John Doe”) as a responsible third party 135 days after filing its original answer. It alleged that John Doe cut in front of Gonzales’s truck and stopped suddenly, negligently causing the accident. Then, it filed a second amended answer, three weeks later, alleging that an unknown person caused the accident, but it did not allege that John Doe committed a criminal act nor did it describe any identifying characteristics of John Doe. Gonzales filed objections to and a motion to strike the motion for leave arguing that Houston Distributing failed to timely file an amended answer alleging John Doe’s responsibility.

The trial court granted the motion for leave. In the resulting mandamus proceeding, the Texas Supreme Court found that the trial court abused its discretion by granting the John Doe designation.

Section 33.004(j) of the Texas Civil Practice and Remedies Code sets forth the requirements for designating “an unknown person as a responsible third party.” As a threshold requirement, within 60 days of filing an original answer, defendants must allege in an amended or supplemental answer that an unknown person committed a criminal act that was the cause of the injury. If defendants meet this predicate requirement, then the court shall grant a motion for leave to designate the unknown person as a responsible third party if the defendant meets three additional requirements: (1) the court determines the defendant has pleaded facts sufficient to show there is a reasonable probability that the unknown person’s act was criminal, (2) the defendant stated in the answer all known identifying characteristics of the unknown person, and (3) the allegation satisfies the pleading requirements of the Texas Rules of Civil Procedure.

In this case, the Texas Supreme Court found that Houston Distributing failed to satisfy the predicate requirement. Specifically, the amended answer was not filed within 60 days of the original answer; it was filed more than two years and eight months later and did not contain allegations about an “unknown” responsible third party. Additionally, the amended answer failed to contain allegations that John Doe committed a criminal act or any identifying characteristics of John Doe.

Houston Distributing also argued that Section 33.004(j) is not the exclusive means for designating an unknown person as a responsible third party. However, the Supreme Court of Texas disagreed noting both that Section 33.004(j) is the only statutory provision that addresses requirements for designation of an “unknown” person as a responsible third party and that Section 33.004(j) expressly provides that it applies notwithstanding any other provision.

Because the Court found that Houston Distributing failed to timely and adequately comply with the pleading requirements under Section 33.004(j), the Court concluded that the trial court abused its discretion in granting leave to designate John Doe as an unknown responsible third party.

Additionally, because the Court found that no adequate remedy by appeal exists to protect the plaintiff’s right not to have to try the case against an empty chair when the trial court erroneously grants a defendant’s late motion for leave to designate a time-barred responsible third party, the Court confirmed that this was an appropriate case in which to grant mandamus relief.

February 26, 2021
This week the Texas Supreme Court issued no opinions and six grants. This blog discusses two of those grants.

First, in In re USAA General Indemnity Co., out of the Corpus Christi-Edinburg Court of Appeals, the Court is set to hear oral arguments on March 24, 2021. There are two main issues before the Court in this underinsured-motorist claim, after the trial court compelled the deposition of a USAA corporate representative before a judicial determination was made of preconditions establishing the insurer’s liability. The Court will consider (1) whether the trial court abused its discretion by compelling the deposition and, if not, (2) whether the deposition topics requested are overly broad.

Additionally, on March 24, 2021, the Court is set to hear oral arguments in a discovery dispute out of Harris County and Houston’s 14th Court of Appeals. In In re Texas Millwork, an employer is contesting the trial court’s decision to compel production of an independent contractor as a witness. The Court is set to consider three issues. First, whether it was abuse of discretion for the trial court to compel Texas Millwork to produce an independent contractor as a witness when the company did not employ him, or arguably control him. Second, whether civil procedure rule 199.3 even requires employment or control of the witness when the company is ordered to produce him. And third, whether there is an adequate appellate remedy available in order to avoid mandamus relief.

December 18, 2020
This week the Texas Supreme Court issued five opinions and one grant. This blog discusses one of those opinions, as well as the one grant.

First, in Lion Copolymer Holdings LLC v. Lion Polymers LLC, the Court issued an opinion reversing and remanding a case from Harris County and Houston’s First Court of Appeals. Lion Copolymer Holdings LLC, a member of a limited partnership, complained that the court erred when it allowed deposition testimony that prejudiced its case and by concluding that its briefing to the court of appeals failed to preserve its complaint about the factual sufficiency of the evidence. The Court of appeals held that the petitioner waived its factual sufficiency complaint through bare assertions unsupported by arguments. The Supreme Court of Texas agreed that the trial court did not abuse its discretion in allowing the deposition testimony, however the Court held that the company’s briefing did not fail to preserve its complaint about the factual sufficiency of the evidence, even though it intertwined its analysis with a legal sufficiency complaint. The case is remanded for the appellate court to consider petitioner’s factual sufficiency complaint and its effect, if any, on its judgment.

Additionally, on February 24, 2020, the Court is set to hear oral arguments on a petition for writ of mandamus. In re Allstate Indemnity Co., a case out of the Corpus Christi-Edinburg Court of Appeals, involved a car wreck lawsuit in which the Plaintiff served affidavits addressing the reasonableness of medical expenses pursuant to Texas Civil Practice and Remedies Code section 18.001. Defendants filed a counter-affidavit prepared by one of its experts and following a hearing, the trial court struck the counter-affidavit finding that the nurse’s opinions were unreliable under Texas Rule of Evidence 702. There are two issues the Supreme Court of Texas will address, (1) whether the trial court improperly struck the expert’s counter-affidavit for lacking expertise and (2) whether mandamus relief is appropriate.

November 6, 2020
This week, the Texas Supreme Court did not release any opinions or grant any Petitions for Review or Mandamus.
Check back with us next week for any newly released orders or opinions.

October 30, 2020
This week, the Texas Supreme Court did not release any opinions or grant any Petitions for Review or Mandamus.
Check back with us next week for any newly released orders or opinions.

October 23, 2020
This week, in Northland Industries Inc. et al. v. Gilbert Kouba et al., the Texas Supreme Court issued an opinion addressing whether an implied warranty of merchantability attached when the manufacturer sold a treadmill to a gym, and that defective treadmill later caused a fatal injury. Northland Industries, Inc. (seller) manufactured and sold treadmills. JHTNA Manufacturing, L.L.C. (buyer) purchased assets from that seller, including treadmills used at a local gym. While using that treadmill, Audrey Kouba fell, sustaining fatal injuries, after the treadmill allegedly changed speeds unexpectedly. Her heirs then sued both the buyer and seller of the treadmill. The buyer moved for summary judgment claiming that as an asset purchaser, it had no liability other than assumed liability. The trial court grated summary judgment for the buyer. On appeal, the plaintiff’s challenged summary judgment only as to the claim of implied warranty of merchantability. The court of appeals reversed as to that claim holding that the buyer assumed liability to implied warranties.

The Texas Supreme Court held that the buyer assumed some of the manufacturer’s liabilities but did not assume implied product warranties under the asset-purchase agreement. The Court followed the majority rule that an asset purchaser does not assume the seller’s liabilities for harm from defective products sold commercially, unless there is an exception. The buyer did not dispute that the warranty of merchantability did attach to the sale of the treadmill and was not properly excluded or modified under the Uniform Commercial Code. However, the buyer asserted that it assumed only the written warranty on repair and replacement.

The Court noted that whether the buyer assumed the seller’s implied warranties is determined by the terms of the asset-purchase agreement. The relevant inquiry was whether the asset-purchase agreement, as a whole, demonstrated the buyer’s intent to assume the implied warranty of merchantability. The Court, in looking to the language of the asset purchase agreement found that the buyer had no intent to assume implied product warranties. The Court held that the buyer only assumed the obligation to repair-or-replace parts as expressly written in the asset purchase agreement. Thus, the buyer had no liability as a matter of law. The Supreme Court reversed the opinion of the court of appeals, holding that the trial court properly granted summary judgment.

October 16, 2020
This week the Texas Supreme Court issued two grants and no opinions. This blog discusses one of those grants.

On February 2nd, the Court will hear oral arguments in Catholic Diocese of El Paso and Heritage Operating L.P. v. Rita Porter et al., a case from the El Paso Court of Appeals. This case arose after individuals suffered burn injuries from a fire at a church fundraiser. At trial, the jury awarded each Plaintiff zero damages, finding no party’s negligence caused the fire. The Court of Appeals reversed in part finding that the jury’s no-liability finding for the Church was against the great weight and preponderance of evidence. There are four issues on appeal that the Supreme Court of Texas will consider, including (1) whether under premises-liability law, volunteers for a vendor on the church property are invitees; (2) whether it is reversable error that the trial court failed to instruct jurors to disregard a “nobody’s responsible” argument when unavoidable accident was not pleaded; (3) whether any challenge to the evidence was waived by the injured parties because they did not contest the jury’s zero-damages finding; and (4) whether, in reviewing the no-liability verdict, the court of appeals applied the correct factual-sufficiency standard.

October 9, 2020
Recently, in George Fleming and Fleming & Associates LLP v. Rebecca Wilson et al., the Texas Supreme Court issued an opinion addressing rules 901 and 902 of the Texas Rules of Evidence. The plaintiffs in this case consisted of about 4,000 individuals suing their former attorney for breach of contract and breach of fiduciary duty.

Fleming represented over eight thousand users in a mass-tort action. Throughout the course of that case, he spent over $20 million to screen potential claimants, and after settlement, he deducted that amount from the $340 million settlement before distributing the funds to his eight thousand clients.

About half of those clients then sued Fleming. Instead of trying all 4,000 claims together, the parties agreed to sever and brought a separate claim of six randomly selected plaintiffs. The jury found for Fleming and the trial court entered a final, take-nothing judgment. Fleming then filed a motion for summary judgment against the remaining plaintiffs (the Wilson plaintiffs), asserting that the plaintiffs waived and released their claims offering as support uncertified copies of the prior jury verdict and judgment. The trial court granted summary judgment for Fleming, but the appellate court reversed that ruling holding that Fleming failed to properly authenticate the uncertified copies of the prior jury verdict and judgment.

Fleming appealed and the Supreme Court of Texas concluded that the trial court did not abuse its discretion by finding the uncertified copies authentic. The Court turned to rules 901 and 902 of the Texas Rules of Evidence. Rule 901 provides a non-exclusive list of evidence examples sufficient to support a finding that the item is what it is claimed to be. Rule 902 provides an exclusive list of self-authenticating items that courts must accept as authentic without requiring any extrinsic evidence. However, rule 901 does not require extrinsic evidence either. The Court concluded that the trial court could have found that the documents were authentic under rule 901(b)(7) because of the watermark and file stamp on the document from the district clerk’s office. No extrinsic evidence was required even though the document was not self-authenticating under Rule 902, as it would have been if it was certified. The Supreme Court reversed the court of appeals, holding that the trial court did not abuse its discretion by finding the evidence authentic.

September 25, 2020
This week, the Texas Supreme Court did not release any opinions or grant any Petitions for Review or Mandamus.
Check back with us next week for any newly released grants or opinions.

August 28, 2020
This week the Texas Supreme Court has issued 16 grants and no opinions. This blog discusses four of these recent grants, which address issues of particular interest.

August 10, 2020
The Supreme Court of Texas did not issue any grants as of August 10th, 2020.

On October 28, 2020 the Court is set to hear oral arguments in a case out of Houston’s 14th Court of Appeals, Waste Management of Texas Inc. and Rigoberto Zelaya v. Robert Stevenson. This is a personal injury case in which the Court will determine whether the label “independent contractor” can defeat summary judgment when there is evidence of actual control over that worker at the time that he was injured.

On October 29, 2020 the Court is set to hear oral arguments in Los Compadres Pescadores L.L.C. v. Juan G. Valdez and Alfredo Teran, a case out of the Corpus Christi-Edinburg Court of Appeals. This is an electrocution-injury case concerning a property owner’s liability. There are three major issues that have been identified in this case. The first is whether Chapter 95 applies regardless of whether a claim arises from the same improvement on which the injured individual was working when the injury occurred. The second is whether the condition of the improvement, or workplace in general, is relevant to a Chapter 95 analysis. Lastly, the Court will assess the effects on a property owner’s liability when a jury finds constructive, rather than actual, knowledge of an on obvious condition.

On December 2, 2020, the Court is set to hear oral arguments in In re State Farm Mutual Automobile Insurance Co. and Terecina Shahan, out of the Dallas Court of Appeals. This is an underinsured-insurance dispute in which the Court will assess underinsured-motorist benefits. This case should provide answers to three uninsured-insurance issues. First, the Court will consider whether a policyholder can sue claiming a violation of Insurance Code’s prompt-settlement provision, without having proved he is entitled to underinsured-motorist benefits. Secondly, the Court will analyze whether a policyholder’s entitlement to underinsured benefits include prompt-payment violations. Third, the Court will consider whether the trial court in this case abused its discretion when it decided the underinsured-motorist benefit issues before severing and abating the Insurance Code claims.

On December 2, 2020, the Court is also set to hear oral arguments in a case out of the San Antonio Court of Appeals, In re USAA General Indemnity Co. The issues in this case deal with the right to and need for a second trial after the insurer agreed to be bound following a negligence verdict. The Court will hear argument regarding the trial court’s conclusion that a second trial was necessary to determine the coverage of the underinsured-motorist, and will consider USAA’s entitlement to mandamus relief. The Court will also consider whether collateral estoppel applies to bar the policyholder from litigating negligence and damages in a second trial.

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