The Tyler Court of Appeals recently held that evidence of medical expenses billed by medical providers is legally insufficient evidence of the amount of expenses "actually paid or incurred."  Plaintiff sued the defendant for injuries sustained in an auto accident.  Prior to trial, the plaintiff filed a motion to exclude any evidence of reductions, insurance payments, or other "evidence of collateral sources."  At trial, the plaintiff introduced evidence of medical expenses billed by medical providers in the amount of $110,069.12.  The defendant was not allowed to rebut this evidence with evidence of reductions even though it was undisputed that the amount of expenses actually paid after reductions was $14,482.02.  The jury found for plaintiff and awarded damages in the full amount requested by the plaintiff.  The defendant moved for jnov arguing the plaintiff had offered no evidence on the correct measure of damages.  The trial court denied defendant’s motion and entered judgment on the jury’s verdict. 

On appeal, the court held that CPRC sec. 41.0105 "not only limits the amount of damages recoverable, but also affects the relevance of evidence offered to prove damages."  The court further held that medical bills reflecting only the amount "initially incurred" are irrelevant and should be excluded at trial.  Consequently, the court held that the improperly admitted medical bills were legally insufficient evidence of the amount actually paid or incurred by the plaintiff.  However, because the medical bills constituted more than a scintilla of evidence to support at least some of the damages and the amount actually incurred was undisputed, the court suggested a remittitur in the proper amount amount of damages.  The court’s opinion in Escabedo v. Haygood can be found at this link.

The Houston Court of Appeals (14th) recently held that a party may not avoid exclusion of an undisclosed expert by simply calling the witness to rebut previous testimony.  Appellee failed to timely disclose an expert.  The trial court allowed the expert to testify at trial over appellant’s objection.  On appeal, the appellant argued that the witness should have been excluded pursuant to TRCP 193.6 because he was not designated timely.  The appellee argued the witness was only called to rebut appellant’s expert testimony.  The court of appeals held that although a party need not designate a rebuttal or impeachment witness whose testimony could not reasonably be anticipated before trial, the expert’s testimony went to damages that were "a focal point of the lawsuit."  The Court held the witness’ testimony could have been anticipated and, thus, the witness should have been disclosed.

Next the court of appeals considered whether the admission of the expert testimony was harmful error.  Because there was no other evidence on the issue, the Court held that the evidence was not cumulative, and the admission probably resulted in an improper judgment.   Accordingly, the court of appeals court reversed the award of damages and remanded the case for a retrial of damages only.  The court of appeals opinion in Jurek v. Herauf can be found at this link. 

 

If the Eleventh Amendment to the U.S. Constitution bars your suit against a State, maybe the U.S. Government can bring the suit for you.  That’s what happened in EEOC v. Board of Supervisors for the University of Louisiana System. 

Dr. Van McGraw initially filed an age discrimination suit against the University of Louisiana System ("ULS"), after ULS implemented a new policy prohibiting the re-employment of retirees on a regular full-time basis.  McGraw was ultimately unsuccessful.

After McGraw unsuccessfully attempted to be rehired by ULS as an associate dean or as a professor, he filed a discrimination charge with the EEOC.  The EEOC took up his claim and filed an action against ULS seeking injunctive relief and relief for the benefit of McGraw.  ULS filed a motion for summary judgment and a motion to dismiss, arguing that the Eleventh Amendment barred the proceedings.  After the district court denied the motions, ULS filed an interlocutory appeal.

Continue Reading Eleventh Amendment Doesn’t Bar the Government from Suing a State

Assume a foreign insurance company provides auto insurance cards that specifically cover accidents both in the home country and the United States.  If a car accident occurs in Texas, can the insurer avoid personal jurisdiction in the suit by alleging that it did not purposefully avail itself to Texas?

This was the issue before the Dallas Court of Appeals in Assurances Generales Banque Nationale v. Dhalla.

Continue Reading In case you’re ever in a car accident with someone insured by a foreign insurance company…

The Houston First District Court of Appeals has held that an order for temporary injunction must be supported by pleading.

In Easton v. Brasch, the Eastons filed suit against Brasch and filed pleadings for a temporary restraining order, a temporary injunction, and a permanent injunction.  After a hearing on the temporary injunction, the trial court rendered a mutual injunction that was binding on both Michael Easton and Brian Brasch.  The Eastons filed an interlocutory appeal and complained that the trial court had abused its discretion because the injunction in favor of Brasch was not supported by a pleading verified by affidavit.  The appellate court agreed, noting that Civil Procedure Rule 682 requires the existence of a pleading verified by affidavit.  The Court’s opinion may be found here.

The Austin Court of Appeals has held that a court of appeals judgment that affirms the trial court’s judgment is the equivalent of a judgment rendered against the appellants.  In Kleas v. BMC West Corp., the Court construes TRAP 43.5 regarding judgments against sureties and holds that its judgment affirming the trial court’s judgment is the same as a judgment against the appellants.  The Court’s supplemental opinion may be found at this link.

After reading Combs v. Kaufman County, I can’t help but wonder if there is something missing from the Court’s opinion or if the opinion contains an error.  Nontheless, I was surprised to learn about a rarely-invoked provision of the Texas Constitution that allows parties to a suit to pick their own judge.

Article V, Section 16 of the Texas Constitution  provides that when the judge of a county court is disqualified, "the parties interested may, by consent, appoint a proper person to try said case."  In Combs, the presiding judge of the Kaufman County Constitutional Court apparently disqualified herself from hearing a guardianship for Wallace Darst.  [Note, the opinion uses the term "recused," which has a different legal meaning, but from the facts, it appears the Court meant to use the term "disqualified"].   The parties subsequently asked Judge Glen Ashworth, who was then district judge for the 86th Judicial District Court, to preside over the guardianship.  Here, the opinion is somewhat confusing or inconsistent as to whether Judge Ashworth merely presided as judge for the constitutional county court or whether the case was treated as having been transferred to the 86th District Court, with Judge Ashworth presiding as judge of that court.  Judge Ashworth subsequently awarded the guardian (Combs) a fee of $143,168.95 and that order was not appealed.

Continue Reading Subject-matter Jurisdiction and Consent

The Dallas Court of Appeals recently had an opportunity to review and apply the mootness doctrine with respect to appeals and, in the process, expound on the rarely invoked exception to mootness known as "capable of repetition, yet evading review" (CORYER).  In this case, the Plaintiff sought a temporary injunction and declaratory judgment that Duncanville’s ordinance prohibiting the operation of Plaintiff’s "sex club," known as the Cherry Pit, as a public nuisance.  The trial court denied Plaintiff’s request for a temporary injunction and the Plaintiff filed an interlocutory appeal.  While the case was on appeal, Duncanville repealed and amended the challenged ordinance.  Duncanville moved to dismiss the appeal because it was moot.

The Court first addressed mootness generally by stating that "a case on appeal is moot if: (1) there are no live controversies between the parties; and (2) any decision rendered by the appellate court would be an advisory opinion."  The Plaintiff argued that his case fell into the exception to mootness known as CORYER.  The Court rejected this argument and held that: 

"This exception only applies in rare circumstances  . . . .  It is limited to situations where the following circumstances are simultaneously present: (1) the challenged action was in its duration too short to be litigated prior to its cessation or expiration, or the party cannot obtain review before the issue becomes moot; and (2) there is a reasonable expectation that the same complaining party would be subject to the same action again." 

Because there was "no reasonable expectation" that Plaintiff would "suffer the same alleged wrong" by enforcement of the repealed ordinance and would have "ample time to obtain judicial review" of the new ordinance,  the Court held that the CORYER exception did not apply and dismissed the appeal as moot.  The Court’s opinion in Trulock v. CIty of Duncanville can be found at this link.     

 

Under Rule 28, is pleading the name of a popular location where a business is located sufficient to name an entity?

This was the issue in Seidler v. Morgan, a recent Texarkana Court of Appeals case.

While vacationing at Fish Creek Ranch located in Dolores, CO, the plaintiff fell from a horse and dislocated her hip. A day before the limitations ran, the plaintiff sued James A. Morgan, Morgan Land and Cattle Partners, Ltd., each doing business as Fish Creek Ranch to recover for her injuries.

Both Morgan and Morgan Land argued on summary judgment that they were not liable because they purchased the business from Kelly Enterprises, Inc. after the plaintiff’s injury occurred. They further explained that Fish Creek Ranch was the name of a place and not the name of their business.

The plaintiff argued in her response that, according to Rule 28 of the Texas Rules of Civil Procedure, by naming Fish Creek Ranch as the assumed name of a business entity, she adequately named whatever entity was responsible for her injury.

Did the plaintiff adequately name a defendant under Rule 28?

No. According to the court of appeals, under Rule 28, a plaintiff must show that the named entity is in fact doing business under the common name pleaded in the petition. The court held that "simply because a place name may be commonly and informally used does not mean that the type of business conducted there is ‘doing business as’" the name of the site.  Here, Fish Creek Ranch was an actual place. The evidence showed that the defendants did not conduct any business under the Fish Creek Ranch name. Thus, summary judgment was appropriate.

Read the entire opinion here. 

 

There are some interesting developments working their way through the legislature and the Supreme Court Advisory Committee that relate to the conduct of jurors.  Senate Bill 445, sponsored by Senator Wentworth, and proposed Texas Rule of Civil Procedure 265.1 would allow jurors to submit questions to witnesses during trial. 

The proposed Senate Bill would allow jurors to take notes during trial and require the courts to provide materials to jurors on which to take those notes.  In addition, it would require the Texas Supreme Court to adopt a rule that would allow (1) jurors to submit questions for witnesses anonymously; (2) counsel to object to questions out of the presence of the jury; (3) witnesses to be recalled to the stand to answer a question in open court;  (4) an opportunity for cross-examination in response to a juror question; and (5) limitation upon questions "for good cause."  The Senate Bill has had its first reading and is currently pending before the Senate Jurisprudence Committee.

Proposed Rule 265.1 calls for an instruction to be read by the judge to the jurors at the beginning of trial advising of the right to ask questions and a form would be provided to jurors upon which questions could be submitted.  The parties would be allowed to object and the court would have the discretion to reword the question.  Parties would be allowed to ask follow up questions.  Any question submitted would become part of the record.  This proposed rule is on the SCAC’s agenda for discussion at its meeting today, February 20, 2009.

Continue Reading Proposals to Allow Jurors to Take Notes and Question Witnesses