Exclusive Remedy Defense – Affirmed

  • Trahan v. Premcor
    • 09-17-00005-CV, 2018 WL 3887634
    • 58th District Court of Jefferson County
    • Justice Kreger, Aug. 16, 2018
  • Trahan sustained on-the-job injury at the Valero Port Arthur facility and sued Premcor.
  • Premcor filed a motion for summary judgment based on the exclusive remedy provisions under Texas Workers’ Compensation Act. Trahan argued that she was an employee of Valero, not Premcor, and that Premcor did not have workers’ compensation insurance in its own name.
  • In conjunction with the TWCA’s definition of “employer,” the Ninth Court observed that Premcor is a wholly-owned subsidiary of Valero Energy Corporation, a holding company with no employees; Valero Services, Inc. is another wholly-owned subsidiary of Valero Energy Corporation that provides payroll services to Premcor; and that Premcor owns and operates the Valero Port Arthur Refinery. Thus, the Court held that Premcor is an employer under the TWCA.
  • Valero produced workers’ compensation coverage for entities under its umbrella, including its subsidiaries. Therefore, Premcor was entitled to the exclusive remedy defense under the TWCA.

Certificate of Merit – Reversed and Remanded

  • Barron, Stark & Swift et al. v. First Baptist Church, Vidor, Texas
    • 09-17-00470-CV, 2018 WL 2246571
    • 128th District Court of Orange County
    • Justice Kreger, May 17, 2018
  • First Baptist Church of Vidor hired Appellants for a large renovation project; water intrusion problems arose and mold resulted. First Baptist filed a petition alleging multiple construction claims against the Appellants but failed to include certificates of merit required under section 150.002 of the Texas Civil Practice and Remedies Code. Once Appellants filed a motion to dismiss, First Baptist amended its claims to include certificates of merit. Appellants argued that the certificates of merit were untimely and that First Baptist was not entitled to an extension per the statute.
  • The trial court denied the motion to dismiss.
  • The Ninth Court held that per the statute’s language, a claim that fails to file a certificate of merit as prescribed results in a complete dismissal against the defendant unless the plaintiff qualifies for an extension. First Baptist failed to meet the prerequisites for an extension; thus, the certificate of merit was untimely, and the trial court abused its discretion.

Standing – Reversed and Remanded

  • In the Interest of T.R.H. Jr.
    • 091700001CV, 2018 WL 2246545
    • 75th District Court of Liberty County
    • Justice Kreger, May 17, 2018
  • The trial court named mother and father as joint managing conservators of the minor, including a provision in the final order that provided for paternal grandmother’s right of first refusal for keeping the child during working hours. Grandmother was not a party to the suit. Mother later sought to modify the order, and grandmother filed a motion to intervene. Mother filed a motion to dismiss, and the trial court dismissed the grandmother’s suit on the grounds that she lacked standing to initiate or intervene in the lawsuit.
  • The Ninth Court held that the grandmother was a “party affected by an order,” and reversed the trial court.

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.

Developer’s Rights – Reversed and Rendered

  • Benders Landing Estates Prop. Owners Ass’n, Inc. v. LGI Land, LLC
    • 09-16-00183-CV, 2018 WL 1188814
    • 284th District Court of Montgomery County
    • Justice Kreger, Mar. 8, 2018
  • The property owners association for the Benders Landing Estates community filed suit against LGI Land, LLC, the property developer. LGI executed a Declaration of Covenants, Conditions, and Restrictions for the community, which passed certain rights and powers from LGI to the POA.  The Assignment of Developer’s Rights, however, attempted to reserve some of those rights to LGI. The POA filed a motion for summary judgment arguing that the Assignment was an improper reservation of rights. Conversely, LGI filed a motion for summary judgment arguing that the Assignment was a valid and enforceable contract. The trial court  granted LGI’s motion.
  • The Ninth Court held that because “the Declaration contains an amendment provision governing the manner and mechanism for making changes, any amendment to that restrictive covenant must be in the ‘precise manner’ authorized by the Declaration.” The Ninth Court found that the Assignment constituted an attempt to amend the Declaration and did not comply with the “precise manner” for amendments as specified in the Declaration. The Ninth Court concluded the Assignment was void and rendered judgment in favor of the POA.

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.