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 damages,  The defendant appealed and challenged entry of the default judgment as well as the award of damages.

The court of appeals reiterated the rule that if an appellant "through no fault of his own is unable to obtain a proper record of the evidence introduced, a new trial may be required  . . . ."  Here, it was undisputed that the defendant did not receive notice or appear at the trial on unliquidated damages.  Consequently, the appellate court was unable to review the damage award.  The court acknowledged the general rule that in the absence of a reporter’s record, a court presumes the evidence supports the judgment, but refused to apply it in the default judgment situation.  Thus, the court determined that a new trial on damages was required and remanded the case to the trial court.  The court’s opinion in Copeland v. Cooper can be found at this link.   

What could be better than the State Fair of Texas?  How about the Dallas/Fort Worth Joint Appellate Seminar?  Okay, maybe not, but this continuing education opportunity will give you a chance to hear from the staff attorneys at the Dallas Court of Appeals and theFort Worth Court of Appeals.  You can learn about cutting edge topics in mandamus practice.  Plus ethics and more.  Almost as good as State Fair fried bubble gum and corny dogs….

The seminar is schedued for Thursday, October 6th, from 2:00pm to 6:00pm, and includes a reception that starts at 5:00pm.  And if you haven’t seen the new Winspear Opera House, now’s your chance because that’s the venue.  For more details, including how to register, see this link.

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 for sanctions when it was served with copies of the motion, and its counsel then expressed a willingness to withdraw the subpoena duces tecum and proposed a nonsuit.  Plaintiffs’ counsel proceeded with his motion and the trial court granted sanctions and awarded attorney’s fees in the amount of $11,250.

Union Carbide appealed.  The Dallas Court of Appeals vacated the sanctions order because Plaintiffs’ counsel did not confer with Union Carbide’s counsel prior to filing his motion for sanctions, as was required by the local rules of procedure.   In addition, the court held that the award of attorney’s fees was not proper because the record failed to show that the trial court had considered whether lesser sanctions would have deterred the conduct in question.  The court’s opinion in Union Carbide Corp. v. Martin may be found here.

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, it was not verified.  The issue revolves around a key difference between Texas Rules of Civil Procedure 107 and 108.  Rule 107 does not require verification by an officer of the court as opposed to an "authorized person."  But in addressing service on out-of-state defendants, Rule 108 makes no such distinction.  It simply requires that the return be sworn to by the person serving the citation.  Agreeing with an earlier decision by the Eastland Court of Appeals, the court held that Rule 108 requires all returns be signed and sworn by the person making service stating "[t]here are no exceptions for or special provisions for officers."  Accordingly, the court of appeals reversed the default judgment because the return did not strictly comply with the rules governing service.  The court’s opinion in Kostechko v. Mazaheri can be found at this link.

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 attorney’s fees will be judged by the prevailing rate in the jurisdiction where the court is located.

McClain v. Lufkin Industries Inc. is a Title VII class action employment discrimination case.  The Plaintiffs presented unrebutted evidence that it was necessary for them to retain counsel outside of the Eastern District of Texas–the location of the suit.  No other counsel was present in the location with the resources to handle the size and nature of the lawsuit; accordingly, local counsel for the plaintiffs retained a California law firm to help with the case.   The district court rejected consideration of the California firm’s $650 hourly rate, which was the prevailing rate in the San Francisco Bay Area, and awarded $400 per hour for the partners at the California firm.

The Fifth Circuit noted the consistent precedent from that circuit that the "prevailing rate in the community" refers to the community where the district court is located.  The court also observd that other circuit courts have allowed out-of-district counsel to recover fees at rates in their home districts under limited circumstances.  Based upon the unrebutted evidence, the Fifth Circuit held that the district court "clearly erred" in finding that local attorneys were available to assist in the representation of the plaintiffs, and the court held that the attorneys could recover fees using the rates in their home district because they had proven that there was no counsel available locally to assist the plaintiffs.  The court’s opinion may be found here. 

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 unanimous finding of negligence, the jury returned a verdict for gross negligence against the defendant by a vote of 12 to 0 and awarded $2.5 million in exemplary damages.  The trial court refused to award judgment for exemplary damages.  On appeal, the court of appeals confirmed what seems logical, but is not exactly clear from the applicable statute. 

Section 41.003(d) of the Texas Civil Practice and Remedies Code requires that the jury be unanimous in its finding on liabilty for, and amount of, exemplary damages.  The statute is slient as to liability for actual damages.  Texas Rule of Civil Procedure 226a requires an unanimous finding on liability, liability for exemplary damages, and the amount of exemplary damages.  Rejecting the argument that the rule and statute conflict, the court stated that "it is logical to conclude that the Legislature intended the unanimity requirement to apply to all of the elements necessary to establish a right to recover punitive damages."  Because the jury did not unanimously find negligence against the defendant, the court affirmed the trial court’s refusal to award exemplary damages.  The court’s decision in Kia Motors Corp. v. Ruiz can be found at this link. 

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 new counsel for him.  The district court referred the issue to a magistrate judge, who subsequently denied the request and gave the plaintiff additional time to locate substitute counsel.  When the plaintiff did not find new counsel, the magistrate judge entered an electronic order dismissing for failure to prosecute.  The plaintiff appealed. 

The Fifth Circuit Court of Appeals held that a magistrate judge’s order is not final unless the parties have consented to proceed before the magistrate.  Since there was no evidence of that consent and since there was no district court order dismissing, the court of appeals dismissed the appeal due to the lack of a final judgment.  The court also noted that the district court "has an obligation to issue a written, paper order when it disposes of a case."  The magistrate judge’s electronic order violated Federal Rule 58’s requirement that "every judgment shall be set forth on a separate document."  The court’s opinion may be found here.

 

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–theHouston Fourteenth Court of Appeals and the Amarillo Court of Appeals–have arrived at different holdings.

In Bioderm Skin Care, LLC v. Sok, the plaintiff suffered burns during a laser hair removal procedure and subsequently brought suit against the treating company and its supervising M.D.  The plaintiff did not file an expert report. After the trial court denied the defendants’ motion to dismiss, they appealed.

The court of appeals held that the laser hair removal procedure was not a health care liability claim because the person who performed the procedure was not a licensed physician and the plaintiff was being treated only for unwanted body hair instead of a medical condition.  The only time the plaintiff received medical treatment was when the medical doctor examined her, diagnosed her burn, and prescribed a cream for the burn.

As a side-note, the court distinguished the Houston Fourteenth Court of Appeals’ opinion by pointing out that the plaintiff herself in that case had affirmatively pleaded her claim as a health care liability claim.  This distinction is interesting since the courts have generally held that the underlying nature of the claim, rather than any characterization given the claim in the pleadings, is the controlling factor.

The court’s opinion may be found here.  Given the conflict between the intermediate courts of appeals, this case would seem to be a likely candidate for review by the Texas Supreme Court.

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 or use of a covered auto.

Lancer Insurance Company v. Garcia Holiday Tours, is a case in which Lancer refused to provide a defense and indemnity to Garcia for an underlying lawusit involving the transmission of a communicable disease.   Garcia was sued after one of its bus drivers contracted tuberculosis and some of the passengers who rode with the driver tested positive for TB.  Lancer denied coverage and the underlying case went to trial.  A jury found the bus company liable and awarded over $5 million.

Garcia then sued Lancer for insurance coverage under its business auto policy that provided coverage for damages Garcia was obligated to pay because of bodily injury caused by an accident and resulting from ownership, maintenance or use of a covered auto.  In holding that there was no coverage, the supreme court distinguished between circumstances in which the vehicle is merely the situs of an incident that could have occured anywhere and those in which the vehicle plays a part in producing the injury.  Here, the court noted that the transmission of TB could have occurred in any closed environment and therefore the bus was not instrumental to producing the injuries.  The court’s opinion may be found here.

In prior posts, Byron Henry and I have opined on a split among the intermediate courts of appeals regarding whether 41.0105 of the Texas Civil Practice and Remedies Code abrogates the collateral source rule and whether evidence of medically expenses initially incurred but ultimately written off should be excluded from evidence at trial or applied post-verdict by the trial court.  The Texas Supreme Court resolved both issues today in an opinion affirming the Tyler court of appeals’ judgment in Haygood v. Garza. 

The main take-away is that amounts written-off by providers must be excluded from evidence at trial.  In other words, the jury should only see evidence of medical expenses actually and ultimately charged to the claimant, not bills showing initial charges before required write-offs.  The majority opinion may be found here.  Justice Lehrmann’s dissent, in which Justice Medina joined, may be found here.

 Additional take-aways you need to know before your next trial, however, are below:

Continue Reading 41.0105 Debate Resolved — Hooray!