Significant Victories
In re Eagleridge Operating, LLC, No. 05-19-01171-CV, 2020 WL 408409 (Tex. App.—Dallas Jan. 24, 2020, orig. proceeding) (mem. op.)
Denying mandamus relief, finding that trial court did not abuse its discretion in striking responsible third party designation by owner of gas facility of former minority-interest owner and contract-operator. The court of appeals held that the minority owner, who sold its interest in the premises to the majority owner prior to the personal injuries at issue, owed no duty to the injured plaintiff because, under premises-liability principles, any such duty passed to the majority owner when its interest was sold.
Kemp v. Brenham, No. 05-18-01377-CV, 2020 WL 205313 (Tex. App.—Dallas Jan. 14, 2020, pet. denied) (mem. op.)
Reversed and rendered take nothing judgment on claims of constructive eviction, finding that landlord-tenant relationship no longer existed at the time the former tenant was locked out of the property, and no evidence that the tenant abandoned the property based on the conduct of the landlord.
Aquifer Science, LLC v. Verhines, et al., D-202-cv-2014-07209 (N.M. Dist. Ct. Jan. 27, 2020)
Working with trial counsel Paul Hultin and the New Mexico Environmental Law Center, who had previously secured an important ground water victory after a 2-week bench trial on behalf of the San Pedro Creek Homeowners’’ Association and other homeowners, DP&S prevailed on a bill of costs in the amount of $379,854.05, plus post-judgment interest. The cost bill was opposed by Aquifer Science and the Office of State Engineer (“OSE”), and the Court rejected arguments made by both parties in favor of DP&S’ clients. The Court further denied motions to reconsider filed by both Aquifer Science and the OSE following the ruling. DP&S continues to serve as lead appellate counsel in this case pending in the New Mexico Court of Appeals.
Jennifer Caudillo, et. al., v. Clariant Corporation, et. al. (N.M. Dist. Ct. Nov. 27, 2019)
DP&S worked with trial counsel Sico Hoelscher Harris LLP on legal research, briefing, and strategy on various pre-trial motions including motions to exclude plaintiffs’ experts, a motion for spoliation sanctions against defendants, and a motion to exclude a defense expert. After securing favorable rulings, the case settled before trial for an undisclosed sum.
Chicas v. Bayerische Motoren Werke AG et al., D-101-cv-2018-03023 (N.M. Dist. Ct. Dec. 26, 2019)
DP&S assisted trial counsel Hossley & Embry in prevailing on a motion to dismiss filed by Defendant Bayerische Motoren Werke, AG (“BMW AG”). BMW AG argued that it could not be subject to jurisdiction in New Mexico as a German entity lacking substantial contacts with the United States and New Mexico in particular. After two hearings and two rounds of legal briefs, the Court held that BMW AG was subject to specific personal jurisdiction in New Mexico’s courts and denied BMW AG’s motion to dismiss.
Joseph/Acton v. Mitsubishi Motors Corp. et al., D-101-cv-2019-01124 (N.M. Dist. Ct. Nov. 14, 2019)
On behalf of The Tracy Firm, DP&S successfully defeated Defendant Mitsubishi Motors Corp.’s Motion to Dismiss for Lack of Personal Jurisdiction. The Defendant had argued that New Mexico’s courts could not exercise specific jurisdiction over Mitsubishi due to its limited contacts in New Mexico and its presence in Japan, working through a U.S.-based distributor. The Court disagreed, adopting the argument advanced by DP&S, that under current and established New Mexico case law, the exercise of specific jurisdiction over Defendant was proper and denied the motion.
Griego v. Oliver, 316 P.3d 865 (N.M. 2013) (representing amicus curiae)
Holding that statutory scheme that denied same-sex couples the right to marry violates the Equal Protection Clause of the New Mexico Constitution.
Lane v. Manfre, No. 05-18-01305-CV, 2020 WL 104625 (Tex. App.—Dallas Jan. 9, 2020, pet. denied) (mem. op.)
Affirmed summary judgment in favor of ex-husband on ex-wife’s assault claims based on prior settlement agreement that includes those same claims as part of parties’ divorce.
Brazos Contractors Dev., Inc. v. Jefferson, 596 S.W.3d 291 (Tex. App.—Houston [14th Dist.] 2019, no pet. h.)
Successfully affirmed $2.15m verdict, with court of appeals upholding jury finding of negligence based on general contractor’s retention of contractual control over subcontractor, even where jury found that general contractor did not retain actual control. Court of appeals also upheld jury’s “no” answer to the plaintiff’s contributory negligence and past and future medical expenses.
Green/Smith v. Ford Motor Co., D-101-cv-2019-01083 (N.M. Dist. Ct. Nov. 12, 2019)
On behalf of trial counsel The Tracy Firm and Keller & Keller, successfully defeated Defendant Ford Motor Company’s personal jurisdiction challenge in this wrongful death/products liability case. Ford argued that it should not be subject to the jurisdiction of New Mexico’s courts under a specific jurisdiction analysis, and further it argued that its registration as a foreign corporation doing business in New Mexico did not equate to consent jurisdiction. DP&S was able to convince the court that Ford was wrong on both counts under existing New Mexico and U.S. Supreme Court precedent. The court held that Ford was subject to specific jurisdiction under the “stream of commerce” theory, and that Ford’s compliance with New Mexico’s Business Corporation Act meant that Ford had consented to jurisdiction in New Mexico.
In re Turner, 591 S.W.3d 121 (Tex. 2019)
Court held that the expert-report requirement to proceed with a health-care-liability claim does not apply to a non-party doctor’s deposition when the doctor is a fact witness with knowledge relevant to claims against the defendant Hospital, even if the doctor may also face the possibility of becoming a defendant.
Morris v. Ponce, 584 S.W.3d 922 (Tex. App.—Houston [14th Dist.] 2019, pet. filed)
In matter of first impression, affirming denial of Chapter 74 motions to dismiss filed by newly-added nurses, holding that for purposes of section 74.351(a), an action does not commence as to each defendant until it is first named as a defendant.
Hulsey v. Attalla, No. 01-18-00189-CV, 2019 WL 3484082 (Tex. App.—Houston [1st Dist.] Aug. 1, 2019, no pet. h.) (mem. op.)
Affirming judgment following a jury trial concerning personal injuries suffered in an automobile collision. In addition to rejecting the defendant’s many challenges to the jury’s causation and damage findings, the court of appeals also rejected an evidentiary argument regarding the improper admission of liability insurance, concluding that the defendant failed to show that the admission of such evidence caused rendition of an improper judgment.
Maxion v. State, No. 02-18-00176-CR, 2019 WL 3269324 (Tex. App.—Fort Worth July 18, 2019, pet. ref’d) (en banc)
Obtained reversal on en banc reconsideration holding that issue previously decided on appeal was not properly raised.
Barbara Tech. Corp. v. State Farm Lloyds, 589 S.W.3d 806 (Tex. 2019)
In this hail damage case, the Texas Supreme Court effectively overruled the so-called Brashears rule to preserve a Texas Prompt Pay Act claim following an appraisal award in certain circumstances. The Court was fractured with 5 justices in the majority, 1 justice concurring in part and dissenting in part, and 3 justices dissenting. Justice Green authored the opinion of the Court.
The Univ. of Tex. M.D. Anderson Cancer Ctr. v. McKenzie, 578 S.W.3d 506 (Tex. 2019)
Under the Texas Tort Claims Act, the State’s sovereign immunity is waived if a negligent decision is coupled with use of tangible personal property and the use proximately causes injury. Because the Act does not require that the tangible personal property be used in a negligent manner in order to waive sovereign immunity, the Texas Supreme Court held that the hospital’s use of an improper solution during a chemotherapy procedure was sufficient to waive immunity.
Bay Oaks SNF, LLC v. Lancaster, No. 18-0793 (Tex. June 21, 2019)
Successfully defeated a healthcare provider’s petition for review to the Texas Supreme Court by providing merits briefing demonstrating that because the expert report satisfied Chapter 74 of the Texas Civil Practice and Remedies Code’s requirements regarding standard of care and causation as to an estate’s survival claim, the trial court did not abuse its discretion by also allowing a wrongful death claim to proceed.
Brieno v. Paccar, Inc., No. 17-cv-867 SCY/KBM, 2018 WL 3675234 (D.N.M. Aug. 2, 2019)
Working with trial counsel Guajardo & Marks, helped defeat Defendant Paccar, Inc.’s Motion to Dismiss for Lack of Jurisdiction. The court approved of Plaintiff’s argument that Defendant Paccar Inc.’s compliance with the New Mexico Business Corporation Act constitutes consent to be sued in New Mexico for the purposes of personal jurisdiction.
Galindo v. Garner, No. 05-19-00061-CV, 2019 WL 2098689 (Tex. App.—Dallas May 14, 2019, no pet. h.) (mem. op.).
Successfully upheld an order denying a motion to transfer venue in a Texas Dram Shop Act case from Dallas County to Tarrant County on the basis that the plaintiffs had properly pleaded a cause of action against an employee of a bar who resided in Dallas County at the time of the incident. In an issue of first impression, the court of appeals unanimously held that the plain language of the Dram Shop Act provides a civil cause of action against not just the bar itself, but also an individual employee who overserves an intoxicated person.
Schmidt v. Navistar, Inc., No. 18CV321 KG/KBM, 2019 WL 1024285 (D.N.M. Mar. 4, 2019)
Successfully defeating Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, re-affirming that a foreign corporation's registration to do business in the state constitutes consent to New Mexico personal jurisdiction.