Negligence. Plaintiff went to Defendant's home to deliver products which Defendant had purchased. When Defendant opened the door, her three dogs rushed out and attacked Plaintiff. Plaintiff testified that Defendant did nothing to restrain the dogs during the attack. Court reverses a summary judgment for Defendant and holds that even if the owner of a dog does not know a dog has vicious propensities, the owner nevertheless owes a duty to exercise ordinary care to stop the dog from attacking a person after the attack has begun. Bushnell v. Mott, __S.W.3rd__(Tex. 3/28/08).

Dram Shop. Court construes the "safe harbor" provision of the Texas Alcoholic Beverage Code which provides that the actions of an employee in over- serving a patron "shall not be attributable to the employer" if (1) the employer requires its employees to attend certain training classes, (2) the employee in question actually attended these classes, and (3) the provider did not directly or indirectly encourage that employee to violate the law. TABC§ 106.14(a). Court holds that the defendant employer carries the burden of proof on the first two elements but the plaintiff carries the burden of proving that the employer encouraged the employee to over-serve. ( The term "employer" includes "vice-principals" as that term is used in connection with punitive damages.) The Court holds that "a plaintiff can show encouragement not only by direct evidence that the provider knowingly ordered or rewarded over-service, but also by circumstantial evidence that the provider engaged in behavior that a reasonable provider should have known would constitute encouragement." 20801, Inc. v. Parker, __S.W.3rd__ (Tex. 3/28/08).

Personal Injury. Plaintiff, the employee of an independent contractor, was injured when he fell off of a loading dock ramp -- which he had previously used on numerous occasions -- when securing the load on his truck. The Court holds that the absence of rails on the ramp was open and obvious and, thus, as a matter of law the landowner had no duty to warn of the condition. General Electric Co. v. Moritz, __S.W.3rd. __ (Tex. 6/13/08).

Personal Injury/Governmental Immunity. Firetruck responding to an alarm collides with Plaintiff's vehicle resulting in serious injuries. Court holds that evidence that firefighter failed to wear corrective lenses, activate the siren, and slow as necessary for safe operation before entering the intersection supported trial court's findings that the firefighter did not act in good faith, defeating the defense of qualified immunity and, further, acted recklessly. The defendant was not entitled to the statutory cap on damages under TCPRC § 108.002 because he did not have insurance for the first $100,000 -- his $100,000 insurance policy had a self- insured retention of equal amount; and, the City had no duty to indemnify him because he was grossly negligent. Green v. Dwainia Alford, (Tex. App. -- Houston [14th] 7/15/08).

Personal Injury. Employer has no duty to warn an employee of risks commonly known or already appreciated by employee. Brookshire Grocery Co. v. Goss, __S.W.3rd__(Tex. 8/29/08).

Personal Injury. The Court holds that, as a matter of law, a landowner had no duty to protect the decedent invitee from a criminal assault on landowner's property because the ten violent crimes on the premises over the previous 23 month period were not sufficiently frequent and similar to make the murder in question reasonably foreseeable. Trammel Crow Central Texas, Ltd., v. Guitierrez et al, __S.W.3rd__(Tex. 8/29/08)

Personal Injury Damages. In this wrongful death case the Court holds that there was no evidence to support the jury's award of damages for loss of inheritance. Evidence that the surviving wife is younger in age and, as projected by the life expectancy tables, would have outlived the decedent had he died a natural death was insufficient without evidence as to the wife's health. Further, the plaintiff could not rely upon the work-life expectancy table alone to calculate the decedent's future work-life because the calculation did not take into account the decedent's health condition in the future. Columbia Medical Center of Las Colinas, Inc v. Athena Hogue et al, , __S.W.3rd__ (Tex. 8/29/08).

Personal Injury. The surviving parents alleged that the defendants served alcohol to their minor son resulting in the automobile collision which caused his death. More than two years after the accident the defendants filed an amended answer alleging that plaintiffs' injuries were caused by the actions of one or more third parties, including Stephanie. Within 60 days, the plaintiffs amended their pleading to join Stephanie as a party defendant. The trial court granted summary judgment for Stephanie. The Court of Appeals affirmed holding that the plaintiffs were time barred because the amended answer did not qualify as a designation of a responsible third party under TCPRC § 33.004. Stephanie could only be designated as a responsible third party with a timely filed motion, an amended answer was insufficient. Sheffield v. Begeman, __S.W.3rd__ (Tex. App. -- Eastland 12/4/08).

Tort Claims Act. Court holds that the immunity waiver under the Texas Tort Claims Act for a school district is limited under TCPRC §101.051 to the operation or use of motor vehicles by a school district. Accordingly, the school district was immune from suit for injuries sustained when the district's gate crashed into a vehicle driven by the plaintiff. Kerrville ISD v. Botkin, __S.W.3rd__ (Tex. App. -- San Antonio (2/6/08).

Texas Tort Claims Act. Wrongful death action brought by parents whose children who were killed when the car in which they were riding was swept away at a low water crossing. Court holds that evidence that the City knew there was inclement weather in the area and that the crossing tended to flood when it rained was not evidence that the City knew the crossing was flooded at the time of the incident and accordingly there was no evidence of a premise defect. City of Corsicana v. Stewart, __S.W.3rd__(Tex. 3/28/08).

Texas Tort Claims Act. Student injured when he tripped over a water hose placed across a sidewalk. Court holds that University was not liable for a premise defect under the Texas Tort Claims Act because the University's safety manual was not sufficient to create a fact issue about whether the University had actual knowledge that the water hose presented an unreasonable risk of harm. Court reasoned that a warning in the manual that "[f]lexible cords should never cross paths of travel unless suitably protected to avoid damage and the creation of tripping hazards" dealt with indoor safety (e.g. electrical cords) and had "no apparent relevance to water hoses or outdoor safety." That reasoning combined with the absence of prior claims convinced the Court that as a matter of law there was no evidence that the University knew that the hose's use presented an unreasonable risk of harm. The University of Texas - Pan American v. Acquilar, __S.W.3rd__(Tex. 4/18/08).

Texas Tort Claims Act. Motorcyclist injured in an accident caused by a two-inch lane elevation differential as he changed lanes. Court holds that City was not liable under the Texas Tort Claims Act because (1) this condition did not constitute a "special defect" (imposing invitee liability) as it did not present "an unusual or unexpected danger to the normal users of roadways " and (2) this condition also did not constitute a "premise defect" (imposing licensee liability): although the drop-off had been reported to the City by an inspector, the danger posed thereby had not and, accordingly, the City did not have actual knowledge of the dangerous condition. City of Dallas v. Reed, __S.W.3rd__(Tex. 5/16/08).

Texas Tort Claims Act. The decedent lost control of her vehicle while crossing a patch of loose gravel on a highway that had been repaved the previous day.The ensuing wrongful death case against the State was tried on the theory that the gravel was a special defect within the meaning of the statute. The Court reversed a verdict for the plaintiffs holding that, as a matter of law, a layer of loose gravel is not an "excavation" or "obstruction" and, accordingly, was not a special defect. The case was remanded for retrial on the higher premise liability standard. Texas Department of Transportation v. York et al, __S.W.3rd__ (Tex. 12/5/08).

Products Liability. Texas Supreme Court found error in a jury question asking whether there was a "manufacturing defect in the 1999 Ford F-350 pickup truck at the time it left Ford's possession that was a producing cause of the June 5, 1999 incident in question" because it did not include "the requirement that a manufacturing defect must deviate from its specifications or planned output." The Court reasoned that the question, although using the term "manufacturing," nevertheless permitted the jury to consider "design" defects in arriving at its answer. The Court disapproved of PJC 71.3 which the jury question tracked. The Court also disapproved of the PJC 70.1 definition of "producing cause" submitted to the jury. The Court held that the correct definition of "producing cause" is: "a substantial factor in bringing about an injury, and without which the injury would not have occurred. There may be more than one producing cause." Ford Motor Company v. Ledesma,__ S.W.3rd__ (Tex. Sup. 12/21/07).

Products Liability/Negligence. Wrongful death suit arising from a roll-over collision involving a motor vehicle purchased from a used car dealer who had purchased it at an auto auction. Court holds that auctioneer cannot be held liable under Restatement 402A strict liability because auctioneers are not in the business of selling automobiles for their own account but are in the business of simply facilitating sales. Court also holds that defendant auctioneer, who did not sell to the general public and sold the vehicle "as is," did not have a duty to replace the tires on the vehicle pursuant to a recall issued a few weeks before the auction took place. New Texas Auto Auction Services L.P. v. Gomez de Hernandez et al, __S.W.3rd__ (Tex. 3/28/08).

Products Liability. The jury found that a BIC lighter was unreasonably dangerous due to defectively designed child-proofing features which resulted in serious burn injuries to a child. The plaintiff recovered actual and punitive damages. The Texas Supreme Court reversed, holding that the Consumer Product Safety Act had impliedly preempted common law design defect claims where, as here, the product had been certified to comply with the Consumer Product Safety Commission standards pursuant to the CPSA. BIC Pen Corp. v. Carter,__ S.W.3rd__ (Tex. Sup. 4/18/08).

Products Liability/ Jury Misconduct Patient suffered a fatal heart attack while on a course of treatment that included taking Vioxx. Court holds that there is sufficient evidence to sustain a jury verdict finding a marketing defect and causation. However, court reverses the trial court judgment for Plaintiff because a juror failed to reveal that he had received several no interest loans from the Plaintiff as recently as six months prior to trial and that there were cell phone calls made from the juror's phone to Plaintiff within days of the jury summons and the night before jury selection.Merck & Co. v. Garza, __S.W.3rd__ (Tex. App. -- San Antonio 12/10/08).

Products Liability. A jury found that design and manufacturing defects in a cigarette lighter had caused burn injuries to a child. On appeal the Texas Supreme Court reversed and remanded holding that the Consumer Product Safety Act had impliedly preempted common law design defect claims where, as here, the product had been certified to comply with the CPSC standards. On remand, the Court of Appeals holds that the manufacturing defect claim had not been preempted because CPSC standards regulate only the design of consumer products, not their manufacture. The court also held that a spoliation instruction was properly submitted because the defendant had destroyed manufacturing quality reports after they had been requested in discovery. Finally, the court found that there was evidence to support liability and actual damages, but not malice. Bic Pen Corp v. Carter, __S.W.3rd__ (Tex. App. -- Corpus Christi 12/04/08).

Medical Malpractice. Plaintiff's claim against a nurse for sexual assault during a hospital stay was not a health care liability claim requiring an expert report pursuant to TRCP §74.351(a) but Plaintiff's claim against the hospital for negligent hiring, training, and supervising and for vicarious liability were health care liability claims. As to vicarious liability the Court reasoned that the assertion of vicarious liability for the actions of the nurse was nothing more than a "recasting" of the direct claim against the hospital relating to the hiring, training and supervising. (Hilbig, J) Holguin v. Laredo Regional Medical Center __S.W.3rd__(Tex. App.-- San Antonio 2/6/08).

Medical Malpractice. Anesthesiologist attending the mother was asked to intubate the infant; the procedure was unsuccessful. Accused of negligence, doctor asserted the Good Samaritan defense. Court holds that there was a fact issues as to whether the anesthesiologist was associated by the admitting or attending physician of the patient in question and, accordingly, the anesthesiologist was not entitled to summary judgment based on the Good Samaritan defense. Chau et al v. Riddle et al, __S.W.3rd__(Tex. 3/16/08).

Discovery/Medical Malpractice. TRCP 202 pre- suit depositions are not permitted in connection with an unfiled but prospective health care liability claim until a claimant has served the expert report and curriculum vitae required by TCPRC § 74.351. In Re Jack Jordan, MD, __S.W.3rd__(Tex. 3/28/08).

Medical Malpractice. In this pre-2003 medical malpractice case against a hospital over it's "hiring, retention and supervision of a physician," Court holds that trial court's 2005 ruling that the statutorily required expert report was adequate is reviewable by mandamus. On the merits, the Court holds that the trial court abused it's discretion because Plaintiffs' physician expert had not demonstrated that she had special knowledge or expertise regarding hospital credentialing. Plaintiffs' claims that the hospital fraudulently misrepresented the doctor's qualifications were inseparable from the health care liability claims as they concerned the credentialing decision. The Court dismisses the Plaintiffs' case concluding that the inadequacy of the report was not the result of an accident or mistake. In Re McAllen Medical Center, Inc.,__ S.W.3rd__ (Tex. Sup. 5/16/08).

Medical Malpractice. Parents contend that medical providers treating their adult son for self- inflicted wounds suffered in suicide attempt were negligent in failing to do a comprehensive suicide assessment and that such negligence was a proximate cause of their son's death by suicide thirty- three hours later. Court reverses a verdict for the plaintiffs holding that, as a matter of law, any connection between his release and death was too attenuated for proximate cause. The Court reasoned that there was no evidence that if pressed by the physician the decedent would have consented to hospitalization, that the plaintiffs' expert did not testify that hospitalization would have "prevented" suicide but only reduced the risk and that the suicide was "too remote from his death in terms of time and circumstances." Providence Health Center et al v. Dowell, __S.W.3rd__(Tex. 5/23/08).

Medical Malpractice. Medical malpractice claim contending that medical errors resulted in permanent loss of brain function. Plaintiffs timely filed medical reports but trial court sustained Defendants' objections thereto and granted Plaintiffs a 30 day grace period to amend. Defendants brought this mandamus action seeking relief from the 30 day extension order. After 4 years on appeal, the Court holds that mandamus should not properly issue and the plaintiffs should be given their 30 day extension. In Re Susan Roberts, __S.W.3rd__(Tex. 6/6/08).

Medical Malpractice. In this wrongful death case, the survivors argued that the hospital failed to provide echo-cardiogram services on a timely basis to diagnose the decedent's condition. The hospital argued that the decedent's non-disclosure of his diagnosed heart murmur constituted contributory negligence. The trial court submitted the contributory negligence question in a separate (third) phase of the trial rather than in the liability (first) phase of the trial. The Court, while disapproving of the three-phase procedure, held that the hospital was not entitled to a contributory negligence question because there was no evidence that, in reasonable medical probability, the nondisclosure of the heart murmur changed the course of treatment or contributed to the decedent's death. The Court also held that there was legally sufficient evidence to support the gross negligence finding: the hospital knew of the "obvious" necessity for "stat" echo capabilities but failed to provide them, failed to advise the medical staff of that limitation, and failed to provide an effective procedure to respond to the life-threatening situation. Columbia Medical Center of Las Colinas, Inc v. Athena Hogue et. al. ,__S.W.3rd__ (Tex. 8/29/08).

Medical Malpractice. Plaintiffs brought a health care liability claim against a doctor and the clinic. The defendant clinic contended that the expert report with which it was served was deficient because it did not mention the clinic or implicate it's behavior. Court holds that when a party's alleged health care liability is purely vicarious, a report that adequately implicates the actions of that party's agents or employees is sufficient. Gardner v. U.S. Imaging Inc, __S.W.3rd__(Tex. 12/19/08)

Medical Malpractice. Forwarding an expert report to a doctor's insurance carrier (as requested) prior to suit did not satisfy the requirement of former §74.351(a) of the Texas Civil Practice and Remedies Code that the claimant "serve" an expert report on a party or its attorney not later than the 120th day after the date the claim was filed. Poland v. Ott, __S.W.3rd __ (Tex. App.--Hou [1st Dist.] 12/19/08).

Medical Malpractice. In this medical malpractice case the defendant designated two additional physicians as responsible third parties. The plaintiff then joined the additional physicians within the time frame allowed by TCPRC § 33.004(e) but outside the two year limitations period. The Court of Appeals affirms a summary judgment for the additional physicians holding that the two year limitations period in TCPRC § 74.251 is not extended by the provisions of TCPRC §33.004(e). The Court focused on the language in §74.251 which provides that "notwithstanding any other law ... no health care liability claim may be commenced unless the action is filed within two years...." Kimbrell et al v. Molinet, __S.W.3rd__ (Tex. App. -- San Antonio 12/31/08).

Subrogation. Worker's Compensation Company's subrogation rights for death benefits paid to the widow and minor child could not be defeated by non-suiting all of the plaintiffs except the decedent's estate to which all of the settlement funds were directed. Texas Mutual Insurance Co. v. Ledbetter, __S.W.3rd__(Tex. 4/4/08)

Subrogation. Subcontractor agrees to indemnify general contractor or property owner for any damage subcontractor causes in the performance of its work. The owner's property sustains water damage as the result of subcontractor's work installing a valve. Subcontractor's insurer pays owner for the damage and insurer brings this subrogation action in the name of the subcontractor to recoup the loss from the valve manufacturer. The Court holds that the subcontractor has standing to bring an equitable subrogation claim because 1) there was evidence that the damages (debt) were primarily owed by another (the manufacturer), 2) the payment was involuntary in that the subcontractor was contractually obligated to pay, and 3) the manufacturer would be unjustly enriched if it was allowed to avoid responsibility. The Court defers the questions of whether the subcontractor's own negligence caused the damages and whether, as such, the subcontractor should be barred from, in effect, pursuing contribution from the manufacturer or the owner's claims against the manufacturer, two actions a tortfeasor is ordinarily not permitted to do. The Court holds that it is only addressing the subcontractor's standing to bring the subgrogation claim, not the merits. Frymire Engineering Company Inc. v. Jomar International, Ltd, __ S.W.3rd __ (Tex. 6/13/08).

Indemnity. On April 19, 2006 the Fifth Circuit certified this question: When a distributor sued in a products liability action seeks indemnification from less than all of the manufacturers implicated in the case, does a manufacturer fulfill its obligation under TCPRC § 82.002 by offering indemnification and defense for only the portion of the distributor's defense concerning the sale or alleged sale of that specific manufacturer's product, or must the manufacturer indemnify and defend the distributor against all claims and then seek contribution from the remaining manufacturers? On March 28, 2008, the Court provided this answer: A manufacturer that offers to defend or indemnify a distributor for claims relating only to the sale or alleged sale of that specific manufacturer's product fulfills its obligation under Section 82.002. Owens & Minor, Inc et al v. Ansell Healthcare Products Inc et al, __S.W.3rd__ (Tex. 3/28/08).

Indemnity/Corporate Liability. A defective cigarette lighter was designed by and manufactured for a Chinese corporation which distributed it through a wholly owned United States corporation (importer). The lighter was sold by the importer to the supplier who sold it to the retailer who sold it to the consumer. After the settlement of a wrongful death case arising out of a fire caused by the lighter, the supplier and retailer sought statutory and common law indemnity from the importer. The Court rejected the statutory indemnity claim holding that the importer did not meet the definition of "manufacturer" under Chapter 82 TCPRC even though the importer introduced the product into the U.S. marketplace and even if the importer claimed the product as its own. The Court also held that the importer was not responsible for the manufacturer's indemnity obligation under a single business enterprise theory concluding that: "corporations cannot be held liable for each other's obligations merely because they are part of a single business enterprise." The Court also rejected the common law indemnity claim holding that an upstream seller is not liable in indemnity to a downstream seller absent proof of responsibility for the defect. SSP Partners et al v. Gladstone Investments,__S.W.3rd__ (Tex. 11/14/08).

Arbitration.Home buyers brought suit against builder and third party warranty company for defective construction. The warranty company -- over the home buyer's objection -- moved to compel arbitration. A hearing was never held on the motion and extensive discovery was undertaken. Shortly before trial, the home buyers sought and received -- over the defendants' objection -- an order compelling arbitration. The defendants' petition for mandamus was denied by the Texas Supreme Court. After the home buyers recovered an $800,000 arbitration award, the defendants appealed the judgment confirming the award, contending that the home buyers had waived their right to arbitration. The Court agreed holding that (1) a referral to arbitration can be reviewed after the award, (2) the pre- arbitration mandamus denial did not constitute the law of the case and (3) under the totality of the circumstances, the home buyers had waived arbitration by substantially invoking the judicial process to the defendants' detriment or prejudice. Perry Homes et al v. Cull, __S.W.3rd__(Tex. 5/2/2008).

Arbitration. Defendants' action in removing case to Federal Court then having it transferred to the Federal MDL Court before its eventual remand to State District Court did not, under the totality of the circumstances, impliedly waive its contractual right to arbitrate the dispute.In Re Citigroup Global Markets, Inc. et al.__ S.W.3rd__(Tex. 5/16/08)

Arbitration. Limits on discovery, applicable to both parties, does not make arbitration unconscionable. Discussing a potential trial setting and sending limited discovery before moving to compel arbitration was not a waiver of same. In re Fleetwood Homes of Texas, L.P., __S.W.3rd__ (Tex. 6/20/08).

Arbitration/Employment. In this retaliatory- discharge case, the Court construes an arbitration agreement which limits the employee's substantive and procedural rights under the Worker's Compensation Statute. The Court holds that the agreement's provisions precluding an award of punitive, exemplary, or liquidated damages or an order reinstating employment were substantively unconscionable and void. A provision requiring all fees related to arbitration to be split equally between the parties (with the employee's contribution capped) was not unconscionable per se but required the arbitrator to assess whether the fee-splitting provisions would prohibit the employee from fully and effectively vindicating statutory rights. Similarly, discovery limitations in the agreement were not unconscionable per se; the arbitrator must determine whether the provisions would prevent vindication of non-waivable rights or would deprive the employee of a fair opportunity to present his claims. The invalid provisions were severable from the agreement to arbitrate which was otherwise enforceable. In re Poly-America LP et. al., __S.W.3rd__(Tex. 8/29/08).

Arbitration. A fraudulent-inducement claim advanced to avoid an arbitration provision in a settlement agreement is contractually barred when the arms length agreement between sophisticated parties represented by counsel contained a negotiated unambiguous waiver-of-reliance provision. The provision conclusively negated the element of reliance needed to support the fraudulent-inducement claim. Forest Oil Corp. et al v. McAllen et al, __ S.W.3rd__ (Tex. 8/29/08).

Arbitration An agreement between 3 partners relating to the sale of partnership interests contained an arbitration agreement. A dispute arose, suit was filed by Partner A but arbitration was compelled. The arbitrator concluded that Partner A breached the agreement by (1) failing to assume a debt and (2) filing suit. The arbitrator awarded Partners B and C damages and attorney's fees for (1) and attorney's fees for (2). Partners B and C filed to have the award confirmed by the trial court and Partner A moved to vacate the award of attorneys fees. The trial court entered judgment on the award. On appeal Partner A argued that the arbitrator exceeded his authority in awarding attorneys' fees because the agreement did not provide for attorney's fees and the requirements of TRCP § 38.001 were not met. The Court of Appeals affirmed. The Court held that even if attorney's fees were not properly recoverable under Chap. 38, the issue of attorney's fees was submitted to the arbitrator by both parties and, accordingly, did not exceed his authority. Since it was within his authority the trial court was not authorized to second-guess the correctness of the arbitrator's decision on this issue absent "manifest disregard of the law" which is more than mere error or misunderstanding in applying the law and, in any event, was not raised below and thus not preserved for review. Saqer v. Ghanem, __S.W.3rd__ (Tex. App. -- Beaumont 12/18/08).

Arbitration. Echols settled a personal injury action in exchange for the right to receive a $100,000.00 structured settlement payment in 2027. Transamerica was the annuity insurer and obligor. Rapid Settlements (RS) entered into a transfer agreement with Echols which provided that RS would pay Echols a lump sum of $5,000.00 in exchange for his right to the future payment. The transfer agreement contained an arbitration clause. When Echols attempted to cancel the transfer, RS obtained an arbitration award approving the transfer agreement and ordering Transamerica (who did not participate in the arbitration) to change the designated payee under the annuity. RS subsequently obtained a judgment confirming the award. On appeal the Court holds that since Transamerica was not a party to the transfer agreement and was more than a mere stakeholder under the Structured Settlement Protection Act that neither the arbitration award nor the trial court's judgment confirming that award was enforceable against it. Transamerica v. Rapid Settlements et al, __S.W.3rd__ (Tex. App. -- Houston [1st] 12/18/08).

Employment. Employee discharged by school district brought suit against both the district and the superintendent for violations of the Texas Commission on Human Rights Act and the common law. Court holds that the Texas Tort Claims Act election of remedies scheme "governs all suits against a governmental unit" even those involving claims that do not fit within the Act's waiver of immunity. However, the election of remedies provision only barred the employees' common law claims against the district not her claims under the TCHRA -- which represented a separate waiver of immunity and was not brought under the Texas Tort Claims Act. Mission Consolidated ISD v. Medina, __S.W.3rd__(Tex. 3/28/08).

Employment. Fired employee brings Whistleblower suit alleging that he was was fired in retaliation for filing a grievance claiming age and race discrimination. Court grants plea to the jurisdiction holding that claim should have been brought under the the Commission on Human Rights Act: The CHRA provides the exclusive state statutory remedy for public employees alleging retaliation arising from activities protected under the Act. A public employee pursuing a state statutory remedy for retaliation arising from the employee's opposition to conduct made unlawful under the Act may only recover if he satisfies the requirements of the Act. City of Waco v. Lopez, __S.W.3rd__ (Tex. 7/11/08).

Employment. Non-compete agreement signed by employee after he had been employed for some years and after he had received confidential information and training was unsupported by consideration and, therefore, unenforceable. Powerhouse Productions Inc, v. Scott, __ S.W.3rd __ (Tex. App. -- Dallas 8/8/08).

Employment. In this retaliatory- discharge case, the Court construes an arbitration agreement which limits the employee's substantive and procedural rights under the Worker's Compensation Statute. The Court holds that the agreement's provisions precluding an award of punitive, exemplary, or liquidated damages or an order reinstating employment were substantively unconscionable and void. A provision requiring all fees related to arbitration to be split equally between the parties (with the employee's contribution capped) was not unconscionable per se but required the arbitrator to assess whether the fee-splitting provisions would prohibit the employee from fully and effectively vindicating statutory rights. Similarly, discovery limitations in the agreement were not unconscionable per se; the arbitrator must determine whether the provisions would prevent vindication of non-waivable rights or would deprive the employee of a fair opportunity to present his claims. The invalid provisions were severable from the agreement to arbitrate which was otherwise enforceable. In re Poly-America LP et. al., __S.W.3rd__(Tex. 8/29/08).

Employment/Sovereign Immunity/. Herrera brought an employment discrimination suit against UTEP complaining that he was terminated in retaliation for taking leave under the self-care leave provision of the Family and Medical Leave Act. UTEP filed a plea to the jurisdiction alleging Herrera's retaliation claim was barred by sovereign immunity. The trial court's denied the plea. The Court of Appeals affirmed, rejecting the reasoning of the Fifth Circuit and holding that Congress had validly abrogated state sovereign immunity from suit for violation of FMLA's self-care provision. UTEP v. Herrera, __S.W.3rd__ (Tex. App. -- El Paso 11/25/08).

Employment. The plaintiff who had been discharged for sexual harassment of a co-worker sued his former employer contending that, in fact, his age had been a motivating factor in his discharge. The jury agreed. The Court reversed and rendered holding that the testimony of another store manager that the defendant "intended to get rid of the old people" was a "stray remark" of no evidentiary value because the manager had no involvement in, influence over, or even knowledge of the reasons for the plaintiff's discharge. The Court concluded further that the plaintiff presented no evidence that the defendant treated him less favorably than any other employee of any age who had violated its sexual harassment policy. Autozone, Inc v. Reyes, __S.W.3rd __ (Tex. 12/5/08).

Employment. Plaintiff brought suit under Texas Labor Code Chapter 451 against the Travis Central Appraisal District ("TCAD") for retaliatory discharge, alleging that she was fired by TCAD for filing a workers' compensation claim. The Court of Appeals rejected TCAD's plea to the jurisdiction, holding that there is no requirement to exhaust administrative remedies prior to initiating suit under this Chapter. The court also held that TCAD's governmental immunity was waived for retaliatory discharge claims under Chapter 451. Travis Central Appraisal District v. Norman,__S.W.3rd __ (Tex. App. Austin 12/19/08).

Insurance. The insured under a CGL policy failed to notify the insurer of a third party claim asserted against the insured for four to six months after the suit was filed. The insurer denied coverage for failure to give notice "as soon as practicable." The parties stipulated that notice was not timely and that the insurer was not prejudiced by same. Held: an insured's failure to timely notify it's insurer of a claim or suit does not defeat coverage if the insurer was not prejudiced by the delay. PAJ, Inc. v. The Hannover Insurance Co., __ S.W.3rd__ (Tex. Sup. 1/11/08).

Insurance. On rehearing, the Texas Supreme Court withdraws its May, 2005 opinion, reverses course, and holds that an excess insurance carrier is not entitled to recoup from its insured the amount the company paid in settlement of a claim when it is later determined that there was no coverage. In this case, the insured had consented to the settlement but not to the excess insurer's asserted reimbursement right thereby distinguishing Tex. Ass'n of Counties County Gov't Risk Mgmt. Pool v. Matagorda County in which the Court had authorized a reimbursement claim when the insured had consented to the insurer's right to seek reimbursement upon a later determination of no coverage. Excess Underwriters at Lloyds London et al v. Franks Casing Crew and Rental Tools, Inc et al, __S.W.3rd__(Tex. 2/1/08).

Insurance. In response to certified questions from the Fifth Circuit, the Court holds that (1) where an additional insured does not and cannot be presumed to know of coverage under an insurer's liability policy, the insurer that has knowledge that a suit implicating policy coverage has been filed against its additional insured does not have a duty to inform the additional insured of the available coverage and (2) proof of an insurer's actual knowledge of service of process in a suit against its additional insured, when such knowledge is obtained in sufficient time to provide a defense for the insured, does not establish, as a matter of law, the absence of prejudice to the insurer from the additional insured's failure to comply with the notice-of-suit provisions of the policy. National Union Fire Ins. Co. v. Crocker, __S.W.3rd__(Tex. 2/15/08).

Insurance. Triple S contracted to perform work for ATOFINA, and agreed to indemnify ATOFINA for personal injuries or property damage sustained during the performance of the contract (except to the extent the loss was caused by ATOFINA's sole or concurrent negligence). Pursuant to its contract Triple S purchased a CGL policy and an excess policy which covered it's indemnity obligation to ATOFINA and named ATOFINA as an additional insured on both policies. When ATOFINA was sued over the death of a Triple S employee, the excess carrier denied ATOFINA coverage. ATOFINA settled with the plaintiff' and sought reimbursement from the excess carrier. The Texas Supreme Court withdrew its May, 2006 opinion and issued a new opinion holding: (1) ATOFINA was covered as an additional insured even if it was not entitled to indemnity under the contract for it's own negligence; (2) the excess carrier's denial of coverage barred it from challenging the reasonableness of ATOFINA's settlement; and (3) ATOFINA's claim against it's excess insurer for reimbursement was a "third party claim" not subject to Ins. Code Art. 21.55 (now §542.051-.061).Evanston Ins. Co. v. ATOFINA Petrochemicals Inc., __S.W.3rd__(Tex. 2/15/2008).

Insurance Coverage for Gross Negligence In response to the certified question from the Fifth Circuit , Court holds that the public policy of Texas does not prohibit insurance coverage of exemplary damages for gross negligence of the employer in the workers' compensation context. Court declines, without clear legislative intent, to decide whether public policy generally prohibits or allows the insurance of exemplary damages arising from gross negligence, but takes the opportunity to discuss the issue at length. Fairfield Insurance Co. v. Stephens Martins Paving et . al., __S.W.3rd__ (Tex. 2/15/08).

Insurance. Court holds that insured's collision with a drive axle and attached tandem wheels that had separated from a passing eighteen- wheel semi- trailer truck (which did not stop and could not be identified) did not constitute actual physical contact with a motor vehicle so as to trigger uninsured motorist coverage because the axle wheel assembly did not constitute a "motor vehicle." Nationwide Insurance Company v. Elchehimi, __S.W.3rd__(Tex. 3/28/08).

Insurance Defense. Court addresses the issue of whether a liability insurer that uses staff attorneys to defend claims against its insureds is a corporation engaging in the unauthorized practice of law. Court holds that "an insurer may use staff attorneys to defend a claim against an insured if the insurer's interest and the insured's interest are congruent, but not otherwise." Court gives examples of incongruence. Court also holds that "a staff attorney must fully disclose to an insured his or her affiliation with the insurer." Unauthorized Practice of Law Committee v. American Home Assurance Company, Inc. et al, __S.W.3rd__(Tex. 3/28/08).

Insurance. The "claims made" policy in this case covers claims made against, and reported by, the insured during policy period. A claim was made but not reported during the policy period. The insured asserts entitlement to defense costs by virtue of insurer's waiver and estoppel. Court limits Wilkinson exception by holding that that insurer cannot waive non-coverage or enlarge policy to cover non-covered risks through estoppel. However, if the insurer's actions prejudice the insured, the lack of coverage does not preclude the insured from asserting an estoppel theory to recover the damages (e.g. non- payment of policy benefits) it sustains because of the insurer's actions. Ulico Casualty Co. v. Allied Pilots Association, __S.W.3rd__ (Tex. 8/29/08).

Insurance. Insured was sued for defective siding system which permitted moisture to enter and damage interior wall components. Court holds that property damage "occurs" for purposes of the occurrence-based CGL policy at issue when the actual physical damage to the property occurred, not when it was or should have been discovered. Accordingly, insurer's duty to defend was triggered by allegations that damage occurred during the policy period even though it was inherently undiscoverable until after the policy expired. Don's Building Supply, Inc. v. OneBeacon Ins. Co., __S.W.3rd__ (Tex. 8/29/08).

Insurance. A lawsuit against a cell phone manufacturer alleging that radiation emitted by the phones caused "biological injury" to users triggered a duty to defend under an insurance policy covering "damages because of bodily injury." Zurich Am. Ins. Co. et al v. Nokia, Inc., __S.W.3rd __ (Tex. 8/29/08).

Insurance. Plaintiff stopped to help a stranded motorist who had collided with a retaining wall. After getting out of his car and walking around the front toward the wall, a car driven by third party slammed into both parked cars, pinning Plaintiff against the wall and crushing his pelvis. Defendant was both Plaintiff's worker's compensation insurance carrier and the insurer of the vehicle Plaintiff was driving. Plaintiff settled with the third party driver and filed suit pursuant to the UIM provisions of the MV insurance policy. Defendant intervened to recover the amounts it paid under the worker's compensation policy from any amounts it was forced to pay under the UIM policy. The Court held that Plaintiff was not entitled to recover under the UIM policy because at the time of the collision he was not "occupying" the vehicle. The policy defined "occupying" as "in, upon, getting in, on, out or off." The Court rejected the argument that Plaintiff met the definition because he was "upon" the vehicle when he was injured. The Court also held that although the Defendant admitted in it's subrogation claim that Plaintiff was occupying the vehicle it was not bound by that admission for purposes of the MV insurance policy because it stood in a different capacity with regard to the latter. United States Fidelity and Guaranty Co v. Goudeau, __S.W.3rd__(Tex. 12/19/08).

Jury Argument. Court holds that it was an improper and incurable jury argument for plaintiff's counsel to compare the nursing home lawyer's "attempts to minimize damages to a World War II German program in which elderly and infirm persons were used for medical experimentation and killed" and no trial court objection was necessary to preserve the error. Living Centers of Texas, Inc. v. Penalver, __S.W.3rd__(Tex. 1/25/08).

Homestead. When a borrower obtained a constitutionally impermissible home-equity loan secured by agricultural homestead property, disbursed a portion of the proceeds at closing to pay off constitutionally permissible purchase-money and tax liens (the "refinance portion"), and kept the remaining balance (the "cash-out portion") the lender of the unenforceable loan was nevertheless equitably subrogated to the prior lienholders' interests to the extent of the portion of the loan proceeds that were used to pay the debtor's constitutionally permissible pre-existing debt. Lasalle Bank N.A. v. White et al, __S.W.3rd__(Tex. 12/21/07).

Residential Construction. RCLA applies to a roofing contractor; the definition of "contractor" under the RCLA is broader than the definition of "builder" under the RCCA . The RCLA required the trial court to dismiss a homeowner's claim when the homeowner failed to give a timely written explanation of why the contractor's offer of settlement was unreasonable. (Note: the 2007 amendments provide for abatement rather than dismissal.) In re Calvin D. Wells, __S.W.3rd__(Tex. App. -Houston [14th Dist.] 2/7/08).

Probate/Guardianship. The trial court's jurisdiction over a proposed guardianship requires service of citation on the proposed adult ward, which service cannot be waived and cannot be accepted by an attorney in fact under a durable power of attorney. In re Martinez, __S.W.3rd__ (Tex. App. --San Antonio (1/30/08).

Attorney's Fees. Attorney's fees are recoverable for breach of a manufacturer's express warranty -- even when the warranty is silent on the subject -- because it is "a claim based on an oral or written contract" under TCPRC § 38.001. Medical City Dallas, Ltd v. Carlisle Corporation, __S.W.3rd__ (Tex. 4/11/2008).

Real Property. Court holds that conveyance of interest in real property by father to his children was not effected before his death. Although the father asked his son to file the deed which was in the father's car, the son had no access to the locked car and never exercised control over the deed before his fathers death and, accordingly, the father never relinquished dominion or control over the deed. Without such relinquishment, there was no delivery and, therefore, no conveyance. Meduna v. Holder, __S.W.3rd__ (Tex. App. - Austin, 4/30/08).

Venue. Court holds that a plaintiff who was denied his initial venue of choice cannot non-suit his case in the transferee county and refile in a third county. Once a venue determination has been made it is conclusive as to those parties and claims. Trial Court's refusal to enforce prior venue ruling was correctable by mandamus.In re Team Rocket et al, __S.W.3rd__, (Tex. 5/23/08).

Venue. Trial court granted a motion to transfer venue without stating its reasons for doing so. Court holds that when motion to transfer venue sufficiently invokes TCPRC § 15.002 permitting transfer for "the convenience of the parties and witnesses and in the interest of justice," the order is not reviewable by appeal or mandamus. Trend Offset Printing Services, Inc. v. Collin County Community College District, __S.W.3rd__ (Tex. 3/28/08).

Jury Selection. Trial court overruled Plaintiff's motion to strike four jury members whose responses during voir dire evidenced confusion over the proper burden of proof. Court holds that trial judge did not abuse his discretion because the confusion did not indicate that the jurors would be unable or unwilling to follow the court's instructions once the burden of proof definitions were properly stated. Murff v. Pass, __S.W.3rd__ (Tex. 3/28/08).

Contracts. Seller agreed to provide backup information for construction and engineering costs three weeks before the proposed closing date. Seller was late in providing the information and Buyer terminated the contract. The Court of Appeals holds that the breach was not material notwithstanding a boilerplate "time is of the essence" clause. The surrounding circumstances indicate that the parties did not intend that a failure to meet this particular deadline would constitute a material breach justifying termination of the contract. MHI Partnership Ltd v. DH Real Estate Investment Company, __S.W.3rd __ (Tex. Civ. App. -- Austin 8/20/08).

Contracts/Attorney's Fees. Attorney engagement letter which described the work to be performed, set forth an hourly rate for fees, and specified a retainer amount was not ambiguous; the client's testimony that there was an agreed cap on fees was barred under the parole evidence rule. David J. Sacks P.C. v. Haden et al, __S.W.3rd__(Tex. 7/11/08).

Limitations. The Court holds that fraudulent concealment of wrongdoing will not toll the statute of limitations when, notwithstanding such concealment, the Plaintiff could have discovered the existence of a claim through the exercise of reasonable diligence. Also, although "[t]he absence from this state of a person against whom a cause of action may be maintained suspends the running of the applicable statute of limitations for the period of the person's absence" a person who is not physically present in the state will not be considered absent when he has sufficient contacts with the State to afford personal jurisdiction under the longarm statute. Kerlin, et al v. Sauceda, et al, __S.W.3rd__ (Tex. 8/29/08).

Civil Rights. Police officer responds to a call that Plaintiff had sprayed her neighbors with water. Plaintiff produces evidence that when she gave her name but not her date of birth to the officer that she was forcibly arrested resulting in personal injuries. Court holds that no reasonable officer could have believed that the failure to provide a date of birth constituted probable cause to arrest Plaintiff, thereby raising a fact issue on officer's qualified immunity defense. Court also holds that there was evidence that it would have been clear to a reasonable officer at the scene that the force used was excessive to the need and objectively unreasonable under the circumstances. As such, a fact issue was raised on the officer's qualified immunity defense to the claim of excessive force. Dutton v. Hayes- Pupko, __S.W.3rd __ (Tex. App. Austin 8/7/08).

Partnership. A limited partnership was sued and service was effected on the general partner. The Court states that in a suit against a partner, citation served on that partner authorizes judgment against the partnership as well. But the Court holds that this suit was against the partnership and service on a partner does not authorize a a default judgment against him when he had not been named as a defendant. Kao Holdings, LP v. Young, __S.W.3rd __ (Tex. 6/13/08).

Asbestos Litigation/Retroactive Law. Court of Appeals holds that Texas statute limiting asbestos litigation recoveries was an unconstitutional retroactive law as applied to the plaintiff's pending lawsuit because it impaired the plaintiff's vested rights without giving her an opportunity to preserve them. Satterfield v. Crown Cork & Seal Company, __ S.W.3rd __ (Tex App. -- Austin (8/29/08).

Evidence. Trial court abused its discretion in permitting fact witness to be cross-examined using her ongoing treatment for depression and panic attacks. Absent evidence that the illness or its treatment affected her perception or memory of events it was improper to admit her mental health information for impeachment purposes. Torres v. Danny's Service Company, __ S.W.3rd __ (Tex. App. -- Eastland 7/17/08).

Oil and Gas. Plaintiffs, the owners of mineral interests, sued the owner/operator of adjoining tract ( who was also the operator of Plaintiff's tract) alleging that Defendant had illegally drained gas from Plaintiff's tract. The Court holds that while a lessor with a reversionary interest has standing to bring suit for a subsurface trespass, damages for drainage by hydraulic fracturing are precluded by the rule of capture. The Court also holds that the proper measure of damages for an operator's breach of it's duty to act prudently to protect against drainage is the value of the royalty lost to the lessor because of the lessee's failure to act as a reasonably prudent operator. Coastal Oil and Gas Corp. v. Garza Energy Trust, __S.W.3rd__ (Tex. 8/29/08).

Comparative Responsibility. The Court holds that a party who seeks damages for death or personal injury under a UCC Article 2 breach of implied warranty claim seeks damages in tort and is therefore subject to the proportionate responsibility scheme in Chapter 33 (1995) including the bar to recovery if he is found to be more than 50% responsible. JCW Electronics, Inc. v. Garza et al, __S.W.3rd__ (Tex.6/27/08).

Specific Performance. When a seller wrongfully repudiates a real estate contract a buyer seeking specific performance is excused from tendering performance at the time of the breach but is not excused at trial from pleading and proving the it was ready, willing and able to perform at the time required by the contract. The buyer's failure to obtain a finding that it was ready, willing and able to perform pursuant to the contract was fatal to it's claim for specific performance. Digiuseppe et al v. Lawler, __S.W.3rd__ (Tex. 10/17/08).

Forum Non Conveniens. When all section 71.051(b) factors in a case favor the conclusion that an action or claim would be more properly held in a forum outside Texas, the statute requires the trial court to grant a motion requesting that it decline to exercise its jurisdiction. In re General Electric Company et al, __S.W.3rd__ (Tex. 12/05/08).

Sovereign Immunity. Plaintiff, the surface owner of certain real property, sued the Texas General Land Office (GLO), the owner of the mineral estate, after the GLO removed limestone from the property without compensation. Plaintiff sought a declaration that the limestone was not part of the mineral estate and compensation for the limestone. The Court of Appeals held that the declaratory judgment action to determine whether the limestone was part of the mineral estate was, in effect, a trespass to try title action against the State and, therefore, barred by the doctrine of sovereign immunity. That doctrine did not apply, however, to Plaintiff's "unconstitutional takings" claim because immunity against such claims is waived by the Texas Constitution. Koch v. Texas General Land Office, __S.W.3rd__ (Court of Appeals -- Austin 12/19/08).

Water Code/Limitations. Suit over the diversion of water onto adjoining property. Court of Appeals holds that the diversion was sufficiently regular as to constitute a permanent injury; therefore limitations began to run when the water first caused injury. Although the plaintiff filed suit within the limitations period, service was not requested until four months after limitations expired. The Court held that the delay was not excused by an oral agreement between counsel as to service when that agreement had not been reduced to writing pursuant to Rule 11. Accordingly, there was no due diligence as a matter of law and limitations had run. Mitchell v. Timmerman, __S.W.3rd__ (Tex. App.-- Austin 12/31/08).

Sovereign Immunity/Employment. Herrera brought an employment discrimination suit against UTEP complaining that he was terminated in retaliation for taking leave under the self-care leave provision of the Family and Medical Leave Act. UTEP filed a plea to the jurisdiction alleging Herrera's retaliation claim was barred by sovereign immunity. The trial court's denied the plea. The Court of Appeals affirmed, rejecting the reasoning of the Fifth Circuit and holding that Congress had validly abrogated state sovereign immunity from suit for violation of FMLA's self-care provision. UTEP v. Herrera, __S.W.3rd__ (Tex. App. -- El Paso 11/25/08).

Professional Liability. Home Builder sues Defendant for breach of contract, DTPA, breach of warranty, negligence and negligent misrepresentation all arising out of defendant's design and construction of certain foundations. Part of the services provided by Defendant included professional engineering services. Defendant moved to dismiss the suit based upon Home builder's failure to file a certificate of merit pursuant to TCPRC §150.002. In response Home builder amended its petition to delete the negligence cause of action. The trial court denies the motion. The Court of Appeals holds that TCPRC §150.002 does not apply to non-negligence causes of action. Accordingly, Home builder did not need to provide a certificate of merit for its breach of contract, breach of warranty, and deceptive trade practices claims; it did however need to provide one for its negligent misrepresentation claim to the extent the claim "aris[es] out of the provision of professional services by a licensed or registered professional." Consolidated Reinforcement, LP et al v. Carothers Executive Homes Ltd, __S.W.3rd__ (Tex. App. -- Austin 12/05/08).

Contracts. Suit on an oral employment agreement providing for payment of a percentage of the "fair market value" of a company or companies if the plaintiff-employee was terminated. The jury found for the plaintiff and awarded $6 million dollars in damages. The trial court entered a judgment n.o.v. for the defendant. The Court of Appeals affirmed holding that under the facts of the case the term "fair market value" was unenforceably indefinite as a matter of law. The Court held that a reasonable jury could not ignore two written communications by the plaintiff to the defendant indicating that the parties needed to agree on a "valuation methodology." To the Court this indicated that fair market value would be determined by a specific formula to which the parties had not yet agreed. Playoff Corporation et al v. Blackwell, __S.W.__ (Tex App.-- Fort Worth 12/11/08).

Venue. For the purpose of venue provisions which authorize or compel suit where a person "resides", the registered office and agent required by the Business Corporation Act "shall constitute a statutory place of residence of the corporation." In re Transcontinental Investors, Inc., __ S.W.3rd__ (Tex. 11/14/08).

Exhaustion of Remedies. Non-veterinarian equine dental practitioners sought a declaratory judgment that the attempt to regulate equine dentistry under the Veterinary Licensing Act was unconstitutional. The trial court granted a plea to the jurisdiction because the plaintiffs had not exhausted their administrative remedies. The Court of Appeals held that the Board of Veterinary Examiners had no jurisdiction over a challenge to the Constitutionality of the Licensing Act, and accordingly, it was a purely legal issue and there were no administrative remedies to exhaust. Mitz et al v. Texas State Board of Veterinary Medical Examiners et al, __S.W.3rd__ (Tex. Civ. App.--Austin 11/14/08).

Warranties/Attorney's Fees. A contract provision that "expressly disclaims all warranties, either expressed or implied, concerning the fitness for any particular purpose of the materials delivered" does not effectively disclaim the implied warranty of merchantability because the language does not mention merchantability. When a party fails to object to evidence, including testimony and billing records, on the ground that the fees should be segregated and does not object to the court's charge regarding attorney fees, it waives any complaint that the opposing party failed to properly segregate those fees. Kleas v. BMC West Corp et al, __S.W.3rd__(Tex. App -- Austin 12/19/08)