Unrelated to Jurisdiction – Pet. Granted

  • In re Lamar University
    • 091800241CV, 2018 WL 3911062
    • 60th District of Jefferson County
    • Per Curiam, Aug. 16, 2018
  • The real parties in interest, coaches of Lamar University’s softball team, filed a lawsuit against the University alleging a failure to follow Lamar’s policies with respect to grievances and appeals of their employment termination.
  • Real parties filed a temporary restraining order against the University to prohibit Lamar from taking any further action under Texas State University Rules and a mandatory permanent injunction to compel Lamar to follow its Human Resources policy manual.
  • Relators filed a plea to the jurisdiction, alleging that as at-will employees, the real parties had not right to a grievance or appeal of their employment termination, as well as failure to plead a valid cause of action due to the defense of sovereign immunity.
  • In response, real parties requested a continuance on the plea to the jurisdiction until they could conduct discovery and develop their case.
  • The trial court granted the TRO, and without ruling on the plea to the jurisdiction, the trial court granted the request for expedited discovery.
  • The Ninth Court held that though trial courts have discretion to permit limited discovery on jurisdictional issues, the requested discovery in this case was unrelated to the jurisdictional issue before the trial court. Thus, the trial court abused its discretion by ordering expedited discovery on matter unrelated to jurisdiction. The trial court is to vacate its order granting expedited discovery and rule on the plea to the jurisdiction.

Chapter 74 Expert Reports – Affirmed

  • Golden Years Assisted Living v. Richard
    • 09-17-00251-CV, 2018 WL 3384500
    • 128th District Court of Orange County
    • Justice Johnson, July 12, 2018
  • Priscilla alleges negligent care or treatment of her husband after being admitted to Golden Years and New Century Hospice.
  • To support her case, Plaintiff provided expert reports of a registered nurse and a plastic surgeon. Defendants filed motion to dismiss for failure to file adequate expert reports under Chapter 74 of the Texas Civil Practice and Remedies Code for healthcare liability claims, claiming that the reports were conclusory as to causation.
  • In response, Plaintiffs argued that causation was adequately addressed and the reports met the requirements of Chapter 74. Addendum reports were filed to supplement standards of case, after which Defendants filed a second motion to dismiss.
  • The Ninth Court held that when evaluating a report under Chapter 74, the report must demonstrate causation only beyond mere conjecture. The reports provided a basis for the trial court to concluded that the threshold requirements of Chapter 74 were met and the Plaintiff’s claim asserted a viable liability theory with merit. No abuse of discretion.

Mailbox Rule – Reversed and Remanded

  • Martin v. Jasper Independent School District
    • 09–17–00195–CV, 2018 WL 2974490
    • 1st District Court of Jasper County
    • Justice McKeithen, June 14, 2018
  • Martin filed a suit against Jasper Independent School District for employment discrimination. JISD responded with a plea to the jurisdiction and argued that the petition was not timely filed.
  • On July 28, 2016, the Texas Workforce Commission sent a letter to Martin advising her of the right to sue JISD within sixty days. Martin received the letter on August 2, 2016 and filed her suit on October 3, 2016. JISD argued that the mailbox rule provides an additional three days after a notice has been deposited in the mail, making the receipt July 31; thus, the deadline for filing suit was September 29th.
  • The Ninth Court held that Texas Labor Code Section 21.254 time limits are triggered by actual receipt and not constructive receipt, and under Rule 4 of the Texas Rules of Civil Procedure, Martin’s petition was timely filed by October 3rd. The trial court erred by impliedly applying the mailbox rule.

New Trial – Pet. Granted

  • In re Enterprise Refined Products Company, LLC
    • 091800069CV, 2018 WL 2246584
    • 172nd District Court of Jefferson County
    • Per Curiam, May 17, 2018
  • The trial court granted plaintiff’s motion for new trial after the jury apportioned responsibility 70% on the plaintiff and 30% on the defendant.
  • Further, trial court held that (1) insufficient evidence supported the jury’s findings on plaintiff’s contributory negligence, (2) the great weight and preponderance of the evidence supports larger damage awards than the jury awarded, and (3) the defendant’s jury argument that plaintiff should not have been on the gangway because he was supposed to be on light duty due to a previous injury was improper and so prejudicial that it could not have been cured by an instruction to disregard, and a new trial was required.
  • Ninth Court held that (1) there was ample evidence for the jury to place liability on the plaintiff, (2) the finding of liability rendered the damages questions immaterial, and (3) the defense’s argument did not reach to the level of being incurable. The trial court is to vacate its order granting new trial and reinstate the jury’s findings.

DWOP – Pet. Denied

  • In re Nowell
    • 548 S.W.3d 104
    • 60th Court of Jefferson County
    • Justice Kreger for the Majority, April 5, 2018
    • Justic Horton for the Dissent
  • Relators answered the suit filed by Henson in February 2010. After the parties conducted initial discovery, the case remained dormant until the election of a new trial judge in January 2017. The new judge set the case on the trial docket for April 2018. Subsequent to the case being set on the trial docket, Relators filed a motion to dismiss for want of prosecution and alternatively, for a continuance.
  • In response to the trial setting and motion to dismiss, Henson’s counsel designated experts and stated that he was unaware that the case had appeared on a dismissal docket. The trial court denied the motion to dismiss but granted a continuance of the case. Relators then filed this mandamus action challenging the judge’s denial of the motion to dismiss.
  • The majority of the Ninth Court noted that a delay of unreasonable duration will raise a conclusive presumption of abandonment of the suit and that the Rules of Judicial Administration provide that civil jury cases are to be brought to final disposition within 18 months of the appearance date. The majority of the Ninth Court then concluded that because Henson had submitted to a deposition, obtained medical records, and responded to requests for discovery, sufficient facts were before the trial court to enable it to conclude that the delay was not attributable to conscious indifference but because both the trial court and plaintiff’s counsel had inadvertently lost track of the case.
  • In his dissenting opinion, Justice Hollis Horton challenged the majority’s opinion regarding the reasonableness of the explanation offered by Henson’s counsel. In particular, Justice Horton noted that the Record was completely devoid of any explanation for the delay by the “attorney in charge” of Henson’s case; that is, the only explanation was one provided by an associate attorney, and the associate gave no reasonable explanation for the significant delays.

Expert Designation – Reversed and Remanded

  • Oyoque v. Henning
    • 09-17-00018-CV, 2018 WL 1527892
    • 284th District Court of Montgomery County
    • Justice Kreger, Mar. 29, 2018
  • Henning sued Oyoque to enforce the restrictive covenants contained in the deed restrictions for the Lake Chateau Woods subdivision The jury found in favor of Henning. On appeal, Oyoque challenged the trial’s court’s striking of his experts, among other things.
  • The Ninth Court noted that (1) Henning never sent a request for disclosure to Oyoque, (2) the trial court’s discovery control order did not provide for the designation of expert witnesses, and (3) thus, Rule 195 governed the parties’ disclosure of experts, the comments of which state that “[d]isclosure is designed to afford parties basic discovery of specific categories of information, not automatically in every case, but upon request.”
  • The Ninth Court found that Oyoque, under Rule 195.2, was not required to “furnish information requested,” because no such information had been requested. As a result, he had no affirmative duty to designate experts, and the Ninth Court reversed the judgment and remanded the case.

Expert Designation – Affirmed

  • Guardianship of Hoffpauir
    • 09-16-00152-CV, 2018 WL 1321509
    • County Court at Law of Orange County
    • Justice McKeithen, Mar. 15, 2018
  • Hoffpauir complained that the trial court abused its discretion by excluding  her expert witness’s offered testimony regarding audio recordings. The Respondents contended that the audio recordings and the offered opinions were not disclosed by Hoffpauir in her designation of experts; Texas Rule of Civil Procedure 193.6 is mandatory absent a showing of good cause or lack of unfair prejudice.
  • The Ninth Court held that Hoffpauir never amended or supplemented her designation of experts to disclose that her expert had relied upon the audio recordings or that the expert would be called upon to give an opinion concerning the audio recordings. Given that the testimony was offered for the first time at trial, there was no good cause or lack of prejudice shown. The Ninth Court found that under Rule 193.6, the trial court did not abuse his discretion.

Responsible Third Parties – Pet. Granted

  • In re United Parcel Service, Inc.
    • No. 09–18–00002–CV, 2018 WL 753503
    • 60th District of Jefferson County
    • Per Curiam, Feb. 8, 2018
  • UPS filed a motion to designate several responsible third parties (RTP) on October 3, 2017, which at the time was more than 60 days before trial scheduled for December 2017.
  • The trial court’s original May docket control order placed a deadline to designate RTP by June 2, 2017. In October 2017, the trial court signed a new docket control order that vacated the December trial setting to an April 2018 setting and extended deadlines except for the June 2, 2017 deadline to designate RTP.
  • The other parties objected on the basis that UPS’ motion to designate RTP was after the June 2, 2017 deadline, and that the trial court’s new docket control order and trial setting did not invalidate the June 2, 2017 deadline. For those reasons, the trial court denied UPS’ motion.
  • The Ninth Court found that the original docket control order required UPS to designate responsible third parties approximately six months before the initially scheduled trial, a period approximately three times earlier than the statutorily given 60 day period. Though trial courts have authority to enter docket control orders, nothing in Rule 166 allows them to disregard statutory time limits. The Ninth Court held that the trial court abused its discretion and conditionally granted UPS’s petition for mandamus relief, directing the trial court to withdraw its order.

Default Judgment – Reversed and Rendered

  • Rhojo Enterprises, LLC v. Stevens
    • 540 S.W.3d 621
    • County Court at Law No. 2 of Montgomery County
    • Justice Kreger, Feb. 1, 2018
  • Stevens filed suit against Orion asserting claims arising out of a cell phone service contract and debt collection. A Return of Service indicated that Orion’s registered agent received service of Stevens’s Original Petition on August 11, 2015. One month later, Stevens filed a motion for default judgment based upon Orion’s failure to answer and noticed a hearing on the motion. Shortly before the hearing, Orion’s alleged owner filed a pro se motion to dismiss the case. The trial court proceeded with the hearing and granted with the default judgment in favor of Stevens without regard to Orion’s motion to dismiss.
  • Orion appealed the default judgment and argued that the trial court erred when it failed to recognize Orion’s pro se motion to dismiss as an answer.
  • The Ninth Court, after noting that “Texas appellate courts have been reluctant to uphold default judgments where some response is found in the record, even if the response is in the form of a letter,” held that Orion motion contained enough information to give Stevens fair notice, and therefore, it constituted an answer. The Ninth Court reversed the default judgment entered against Orion and remanded the case to the trial court.