In 2007, the Texas Legislature adopted a Certificate of Merit requirement applicable to claims against architects and engineers. The statutory requirement is much like the expert affidavit requirement applicable to health care liability claims. The Houston First District Court of Appeals has given us an idea of just how broadly the statute should be interpreted.
Opinions & Judgments
Mandamus Granted Over Denial of Special Exception
By Mike Northrup on
Posted in Opinions & Judgments
Here’s one to put in your mandamus file. The Dallas Court of Appeals has held that the trial court abused its discretion by denying a special exception and that the relators had no adequate remedy by appeal. Of course, there’s more to this holding than meets the eye.
This is a sharolder derivative suit governed…
Get Your Damages On The Record
By Byron Henry on
Posted in Opinions & Judgments
The Dallas Court of Appeals has held that the lack of a reporter’s record from a trial on unliquidated damages requires reversal of the judgment. In this case, the defendant defaulted and a trial was held on unliquidated damages. No court reporter was present. The trial court entered judgment for plaintiff awarding $1.3 million in…
Conference Requirements and Consideration of Lesser Sanctions
By Mike Northrup on
Posted in Opinions & Judgments
After Union Carbide served a treating physician with a subpoena duces tecum that encompassed records spanning over 30 years, plaintiffs’ counsel filed a motion for sanctions, asserting that the discovery requests were overbroad, harassing, and annoying, and he sought costs expended in defending against the subpoena duces tecum. Union Carbide first learned of the motion…
News Flash: Service Rules Require Strict Compliance
By Byron Henry on
Posted in Opinions & Judgments
The Dallas Court of Appeals has, once again, confirmed that "strict compliance" with rules governing service of process is required. See my prior posts on the subject here and here. In this case, the district clerk served an out-of-state defendant via certified mail, return receipt requested. But while the return of service bore the district clerk’s stamp…
Fifth Circuit Exception to Locality Rule for Attorney’s Fees
By Mike Northrup on
Posted in Opinions & Judgments
The Fifth Circuit Court of Appeals has held that when it becomes necessary to secure out-of-district counsel to adequately represent a civil rights plaintiff, the prevailing rates charged by that firm are the starting point for the lodestar calculation for an award of attorney’s fees. This ruling is an exception to the usual rule that…
11-1 Verdict on Liability Bars Recovery of Exemplary Damages
By Byron Henry on
Posted in Opinions & Judgments
The Dallas Court of Appeals recently held that a jury verdict of 11-1 on negligence bars recovery of exemplary damages based on gross negligence. In this case, the jury returned a verdict against the defendant for negligence by a vote of 11 to 1. Ignoring the predicate instruction to only answer the gross negligence question on an…
Federal Appellate Jurisdiction Over Magistrate Orders
By Mike Northrup on
Posted in Opinions & Judgments
A federal court of appeals does not have jurisdiction over an appeal from a magistrate judge’s order of dismissal unless the parties have clearly and unambiguously consented to proceed before the magistrate judge.
In Barber v. Shinseki, the plaintiff brought a healthcare liability claim. After the plaintiff’s counsel withdrew, he asked the district court to appoint…
Laser Hair Removal is not a Health Care Liability Claim
By Mike Northrup on
Posted in Opinions & Judgments
The Dallas Court of Appeals recently joined with the Fort Worth Court of Appeals and theCorpus Christi Court of Appeals in holding that a claim arising from a laser hair removal procedure is not a Health Care Liability Claim subject to Chapter 74 of the Civil Practice and Remedies Code. Two other appellate courts–the…
“Arising out of” = “Resulting from”
By Mike Northrup on
Posted in Opinions & Judgments
My insurance coverage friends will appreciate this one: The Texas Supreme Court has held that there is "no significant distinction" between an automobile insurance policy that provide coverage for bodily injury "arising out of" ownership, maintenance or use of a covered auto and a policy that provides coverage for bodily injury "resulting from" ownership, maintenance…