Toll-Free : 800-310-9769
Main Phone Number : 214-219-9900
Fax Number : 214-219-9456

We Know Texas | We Know Business

At The Bassett Firm, we provide peace of mind. We are trial attorneys. Not litigators, but attorneys who try cases. Our years of trial experience protect you and your company.

  1. Home
  2.  » Texas Supreme Court Weekly Update

Subscribe to the Texas Supreme Court Weekly Update:

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.

Contact
The Bassett Firm