Employment. Plaintiff, a lieutenant with the Sheriff's Department, also served as the security coordinator for Montgomery County Convention Center events. After reporting the misconduct of a County Commissioner Plaintiff was stripped of his security coordinator duties. Plaintiff brought suit under the Texas Whistleblower Act. Reversed and rendered for the employer. The Court adopts a new standard for determining whether an "adverse personnel action" within the meaning of the Whistleblower Act was truly "adverse." To violate the Act the retaliatory action must be "likely to dissuade a reasonable, similarly situated worker from making a report under the Act." Court concludes that although the coordinating duties gave the plaintiff the first choice of off-duty convention center security jobs, there was no evidence that this actually increased his access to extra work and, accordingly, as a matter of law, the loss of the security coordinator position was not "materially adverse." Montgomery County v. Park,__ S.W.3rd__ (Tex. Sup. 11/30/07).

Medical Malpractice. Plaintiffs filed timely but deficient §74.351 expert reports. The trial court denied the defendants' motions to dismiss and granted Plaintiffs a 30 day extension to cure deficiencies. Defendants took an immediate interlocutory appeal contending that the deficient reports constituted "no report." Court dismisses the appeal holding that the motion to dismiss was inseparable from the 30 day extension and that the statute prohibits an interlocutory appeal of an extension to cure deficiencies in an expert report. Court also confirms that under the statute objections to the sufficiency of a report must be filed within 21 days or they are waived. Olgetree et al v. Mathews, __ S.W.3rd__ (Tex. Sup. 11/30/07).

Rule 11 Agreements. Court refuses to enforce an oral settlement agreement for failure to comply with TRCP Rule 11. See opinion here. On rehearing, Court rejects claim that defendant committed fraud in leading plaintiff to believe that additional monies would be paid. Court holds that Rule 11 bars a fraud claim to the extent a party seeks to recover as damages the benefit of a bargain that cannot otherwise be enforced because it fails to comply with Rule 11. Knapp Medical Center v. De La Garza, __S.W.3rd__(Tex. Sup. Ct. 12/14/07).

Worker's Compensation. The question of a worker's status as an an independent contractor or an employee is one of compensability governed by §410.301(a) of the Texas Labor Code. Accordingly, the TWCC appeals panel's decision on this issue is subject to a modified de novo review in the county of the employee's residence. Morales v. Liberty Mutual Ins. Co., __S.W. 3rd __ (Tex. 12/7/07)

Payday Claims. An employee with a claim for wages under the Texas Payday Law may pursue that claim administratively before the Texas Workforce Commission or in court. But, when a claimant pursues a wage claim to a final adjudication before TWC, the claimant is barred by res judicata from later filing a lawsuit for the same damages in a Texas court of law. Igal v. Brightstar Information Technology Group, Inc, __S.W.3rd__(Tex. 12/7/07) Dissent (arguing the TWC's order was not an adjudication but rather a dismissal for lack of timeliness)

Contracts. Medical clinics provided medical treatment to injured parties, took an assignment of rights from those parties and placed tortfeasor's insurer on notice of clinics' interests. Insurer settles with the injured parties paying the parties directly. Healthcare providers bring suit against insurer contending they are third party beneficiaries of the settlement agreements or, alternatively, are entitled to payment under a theory of quasi estopple. Court of Appeals denies the health providers' claims, holding that there is no evidence that the injured parties and the insurer intended the providers to be third party beneficiaries of the settlement nor was the insurer's receipt and use of the medical bills a basis to estop insurer from failing to pay clinics. Allstate Indemnity Company et al v. Hadley Medical Clinic et al, __S.W.3rd__(Tex. App.--Houston [14th Court] 12/13/07)

The Jack Jenkins Debate Opportunity Fund

"The goal of the Jack Jenkins Debate Opportunity Fund is to reduce the economic barriers for high school students who demonstrate aptitude for debate but who are otherwise unable to participate meaningfully in competitive debate because they are financially disadvantaged. The Fund will support these students and enhance their debate skills by providing tournament fees and travel expenses, scholarships to university-sponsored debate camps, debate consultants to augment the preparation offered by local high schools, and computer equipment to assist students in their research and writing. [They] hope to find volunteer mentors, as well."

Click here for more information or to help.

Jury/Non-Jury Weeks

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 or additional charges for mediations within 100 miles of Austin.

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