Arbitration. An arbitration clause requiring arbitration of “controvers[ies] between the parties to this Agreement” may be invoked by a third party stranger to the contract who is sued by one of the parties to the agreement for tortuous interference. The phrase “between the parties” did not limit the scope of the arbitration clause to claims between the parties. Meyer et al, v. WMCO-GP, LLC et al__S.W.3rd__(Tex. 12/22/06)

UIM Claims. In these three cases the Texas Supreme Court holds that (1) UIM insurance covers prejudgment interest that the underinsured motorist would owe the insured; (2) the "declining principal" formula should be used to calculate the amount of interest with credit given to offsets such as PIP payments and settlements with the underinsured motorist; (3) if the insured settles the underlying claim for less than the policy limits, no prejudgment interest is payable on the portion of the underlying policy not paid in settlement and (4) an insured may recover attorney’s fees under Chapter 38 only if the insurer does not tender the UIM benefits within thirty days after the trial court signs a judgment establishing the liability and underinsured status of the other motorist. Brainard v. Trinity Universal Insurance, __ S.W.3rd__ (Tex. Sup. Ct. 12/22/2006). PDF Version; State Farm Mutual v. Norris, __S.W.3rd__(Tex. Sup. Ct. 12/22/2006). PDF Version; State Farm Mutual v. Nickerson,__S.W.3rd__ (Tex. Sup. Ct. 12/22/2006). PDF Version.

Fraud/DTPA. A contractual agreement made with no intention of performing it is fraud and not a "mere breach of contract." Similarly, while the failure to perform would not alone violate the DTPA, a misrepresentation of the type of vehicle that would be delivered is actionable under the DTPA. Tony Gullo Motors I, L.P. v. Chapa, __S.W.3rd__ (Tex. Sup. Ct. 2/22/06). PDF Version.

Exemplary Damages. A jury found that a dealership had committed fraud in the sale of a vehicle and awarded $7,213 in economic damages, $21,639 in mental anguish damages and $250,000 in exemplary damages. The Court of Appeals reduced the exemplary damage award to $125,000. Both sides appealed. The Texas Supreme Court held that the amount of exemplary damages permitted by the Court of Appeals, being 4.33 times the amount of compensatory damages, was "constitutionally excessive" and remanded the case back to the Court of Appeals "for determining a constitutionally permissible remittitur." Tony Gullo Motors I, L.P. v. Chapa, __S.W.3rd__ (Tex. Sup. Ct. 2/22/06). PDF Version.

Attorney's Fees. In what it calls a modification of it's prior rule regarding the segregation of attorney's fees, the Texas Supreme Court holds that "intertwined facts do not make tort fees recoverable; it is only when discrete legal services advance both a recoverable and unrecoverable claim that they are so intertwined that they need not be segregated." Thus, for example, plaintiff's counsel will have to offer an opinion as to the percentage of his/her petition-drafting time that pertained to those claim(s) for which attorney's fees can be recovered.Tony Gullo Motors I, L.P. v. Chapa, __S.W.3rd__ (Tex. Sup. Ct. 2/22/06). PDF Version.

Premises Liability. A self-service soft drink dispenser in a grocery store did not itself constitute an unreasonably dangerous condition notwithstanding the fact that ice fell to the floor from the dispenser on a daily basis and had to be cleaned up regularly. The plaintiff had to prove the defendant had or reasonably should have had knowledge of the ice on which the plaintiff slipped. Brookshire Grocery Co. v. Taylor, __ S.W.3rd__ (Tex. Sup. Ct. 12/1/06). PDF Version.

Employment. An at-will employee who signs a non-compete covenant becomes bound by that agreement – even though at the time the agreement is made the employer has no corresponding enforceable obligation – if and when the employer performs the promises it made in exchange for the covenant. Alex Sheshunoff Management Services, L.P. v. Kenneth Johnson and Strunk & Associates, L.P., __S.W.__(Tex. Sup. Ct. 10/20/06). PDF Version..

Special Exceptions. When a trial court grants special exceptions and later dismisses the case for failure to properly replead to cure the deficiencies, the pleading party waives any error in granting the special exceptions when he complains only of the order of dismissal on appeal. Further, when the pleading party had been given multiple opportunities to properly replead and has failed to do so, the trial court has the discretion to dismiss the case with prejudice. Perry et. al. v. Cohen et. al. __ S.W.3rd__(Tex. Civ App. -- Austin, 1/5/2007)

Premises Liability. Based upon facts worthy of a moot court competition the Court of Appeals sustains a verdict under Timberwalk against a management company for the parking lot murder of a movie-goer when the defendant knew of ten reported violent crimes on the premises over the previous two years and employed undercover security officers which did not provide sufficient deterrence. Trammell Crow Central Texas Ltd. v. Gutierrez, __S.W.3rd__ (Tex. Civ. App. -- San Antonio, 12/20/06). Dissent (murder not foreseeable as a matter of law.)

The Texas Bar Journal's 2006 Year in Review summarizing significant legal developments is available online .

Articles Include:

Texas Supreme Court

Appellate Law

Redefining Covenants Not to Compete

Third-Party Dram Shop Liability

Health Law

Medicaid Reimbursements

The Changing World of Medical Malpractice/Personal Injury Law

Aiding-and-Abetting Liability: Is Privity Making a Comeback?

Orisinal

Google News

Bartleby.com

Anywho

This American Life

Passports

Fly the Copter

To facilitate scheduling, my mediation calendar is now online. You can access the calendar from my website www.mcmediate. com which also provides an e-mail link to schedule or hold a date for mediation.

There are no travel charges for mediations within 100 miles of Austin.

Of course, if you prefer, you are always welcome to call me to get available mediation dates. My phone number is 512-474-5573. If I am in a mediation, my assistant is available to help you. Click here to view the calendar. We update the calendar daily.

In Travis County District Courts, during the 2006 fiscal year (Aug. 2005-Sept. 2006):

A Jury Panel was questioned in 64 cases.

Evidence was presented in 55.

A directed verdict was granted in 12.

A judgment on the verdict was rendered in 14.

I am committed to providing the most productive and professional mediation service possible. I welcome your comments and your suggestions about any and all aspects of the mediation process.

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Best Regards,

Michael Curry