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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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