Products Liability. "Petitioner Wyeth manufactures the antinausea drug Phenergan. After a clinician injected respondent Levine with Phenergan by the 'IV-push' method ...she developed gangrene, and doctors amputated her forearm. Levine brought a state-law damages action, alleging, inter alia, that Wyeth had failed to provide an adequate warning about the significant risks of administering Phener- gan by the IV-push method. The Vermont jury determined that Levine's injury would not have occurred if Phenergan's label included an adequate warning, and it awarded damages for her pain and suffering, substantial medical expenses, and loss of her livelihood as a professional musician. ...[T]he trial court rejected Wyeth's argument that Levine's failure- to-warn claims were pre-empted by federal law because Phenergan's labeling had been approved by the federal Food and Drug Administration (FDA). The Vermont Supreme Court affirmed. Held: Federal law does not pre-empt Levine's claim that Phenergan's label did not contain an adequate warning about the IV-push method of administration." Wyeth v. Levine, 555 U.S. __ (3/4/09).

Employment/Civil Rights. "Title VII of the Civil Rights Act of 1964 ... forbids retaliation by employers against employees who report workplace race or gender discrimination. The question here is whether this protection extends to an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer's internal investigation. We hold that it does." Crawford v. Metropolitan Government of Nashville et al, 555 U.S. __ (1/26/09).

Right to Jury Trial. Bank of America and Mikey's Houses executed a real estate contract and a two-page Bank of America Mortgage Addendum, which contains a conspicuous jury-waiver provision. When Mikey's sued BoA over the execution of the contract and demanded a jury trial, the trial court granted BoA's motion to enforce the waiver. The court of appeals reversed holding that there was a presumption against such waivers and BoA did not produce prima facie evidence that Mikey's knowingly and voluntarily waived it's Constitutional right. The Supreme Court reversed the court of appeals, rejecting any presumption against the waiver of jury trials. The Court held that when the contractual waiver language is conspicuous it constitutes prima facie evidence of a knowing and voluntary waiver and shifts the burden to the opposing party to rebut it. The Court explained that an allegation of fraud or imposition connected to the waiver provision would have shifted the burden to the party seeking enforcement to prove that the conspicuous waiver provision was executed knowingly and voluntarily, however, no such allegation was made in this case. In Re Bank Of America, N.A., __S.W.3rd__ (Tex. 2/27/09).

Insurance. Builder sued it's insurer after the insurer denied any duty to defend in multiple claims under an occurrence-based commercial general liability (CGL) policy. The Court applies its holdings in Lamar Homes, Don's Building Supply and GuideOne Elite and affirms that under the language of the policy (1) a claim of faulty workmanship against a homebuilder is a claim for property damage caused by an occurrence; (2) the Prompt Payment of Claims statute applies to an insurer's breach of its duty to defend under a liability policy; (3) property damage occurs during the policy period if "actual physical damage to the property occurred" during the policy period; (4) in deciding whether there is a duty to defend, the courts should not consider extrinsic evidence from either the insurer or the insured that contradicts the allegations of the underlying petition. In connection with (4), above, the builder sought to introduce evidence to prove that subcontractors had performed work on one of the houses which would have brought the claims within coverage. The Court rejected that attempt holding that such evidence would contradict the underlying pleadings which asserted only that the work had been done by the builder with no mention of subcontractors. Pine Oak Builders, Inc. v. Great American Lloyds Ins. Co., __S.W.3rd __ (Tex. 2/13/09).

Arbitration/Wrongful Death. Employee of non- subscriber employer accepted an "occupational injury plan" providing benefits in the event of injury or death, indemnifying the employer from claims or suits arising from employee's injury or death, and providing for arbitration of any claims. The employee died on the job and his survivors filed a wrongful death claim against the employer. Texas Supreme Court holds that the employee's beneficiaries are bound by the arbitration clause because their wrongful death claims are entirely derivative of the employee and he would have been so bound. Court also holds that the beneficiaries' challenge to the validity of the entire agreement, on the basis that the indemnification clause is a pre-injury waiver that violates Labor Code section 406.033(e), is a question for the arbitrator; while a court may determine a challenge to the arbitration clause, a challenge to the contract as a whole is reserved for the arbitrator. In Re Labatt Food Service LP, __ S.W.3rd __ (Tex. 2/13/09).

Fraud/Attorney's Fees. Purchaser of property on Lake Travis sued seller and seller's real estate agent and broker alleging misrepresentations and non-disclosure concerning the purchaser's right to build a boat dock on adjoining property that accessed the lake at lower levels of inundation. The trial court granted each defendant a summary judgment and awarded them their attorney's fees. The Court of Appeals affirmed. On the issue of liability, the Court concluded that the purchaser's knowledge that he would not own the property at the lake's current level, his own investigation through his real estate agent and his attorney into whether or not he could anchor a boat dock over the adjacent property and his reliance on their (incorrect) advice all negated his reliance on the defendants' knowledge and information and defeated his claims as a matter of law. On the issue of attorney's fees, the Court held that the TREC contract language providing that the "prevailing party in any legal proceeding related to this contract is entitled to recover reasonable attorney's fees and all costs" applied to the plaintiff's tort claims because they all related to the contract. The Court held, further, that even though the real estate agent and broker were not parties to the contract, the intent of the language as informed by TREC's interpretation was to apply the attorney's fee provision to them, as well. Sierra Associate Group, Inc. v. Hardeman et al., __ S.W.3rd __ (Tex. App. -- Austin 2/20/09).

Texas Tort Claims Act. A mother adopted a Doberman upon the recommendation of an employee of the City of Elgin Animal Shelter. After the dog attacked her 4 year old son, suit was filed alleging that the City was negligent in permitting the adoption. The Court of Appeals held that animal adoptions from the City's shelter is an activity so closely related to animal control that it is a governmental function to which the doctrine of sovereign immunity applies. The Court held, further, that the adoption process and the provision of the dog did not constitute "a condition or use of tangible personal or real property" within the meaning of the Texas Tort Claims Act. Sovereign immunity had not been waived. City of Elgin v. Reagan, __ S.W.3rd __ (Tex. App. -- Austin 2/26/09).

Texas Tort Claims Act. The City constructed a sidewalk on City property that turned into a trail that led up to a railroad track crossing. Plaintiffs' daughter was killed when she followed the trail across the tracks and was hit by a train. The trial court granted the City's plea to the jurisdiction. The Court of Appeals affirmed holding that the construction of the sidewalk was a governmental function as a part of street construction, design and maintenance. Since the sidewalk "did no more than furnish the condition that makes the injury possible" there was not the "nexus between the condition or use of the property and a plaintiff's injuries" to create liability under the Texas Tort Claims Act. McCullough v. City of Pearsal, __ S.W.3rd __ (Tex. App. -- San Antonio 2/11/09).

Contracts. Real estate contract, dated November 17, 2006, required the purchaser to to deposit earnest money of $2,000 within three days of the Contract's effective date, to deposit "additional earnest money" of $100 on or before the 14th day after the 30 day feasibility period expired, and to close by January 26, 2007. The purchaser timely deposited the $2,000 earnest money but did not deposit the additional $100. The seller sought to terminate the contract but the buyer timely tendered the purchase price. When the seller refused to close, the buyer brought suit for specific performance and obtained a summary judgment for same in the trial court. The Court of Appeals affirmed holding that the contract language authorizing the seller to terminate the contract if "Buyer fails to timely deposit the earnest money" referred only to the $2,000 and that the Seller's interpretation would "modify the law of contracts and specific performance" to allow the seller to terminate the contract "no matter how immaterial the breach." Crandall Medical Consulting Services, Inc v. Harrell, __ S.W.3rd __ (Tex. App. -- Austin 2/5/09).

Civil Contempt. For obligations in a judgment to be enforceable by civil contempt they must be prefaced by "decretal language" which orders or mandates compliance. Incorporating an agreement into a judgment or reciting that one or both parties are "bound by" the judgment is insufficient. In Re Gayle Coppock, __ S.W. 3rd __ (Tex. 2/13/09).



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Civil Procedure. The trial court orally granted a new trial from the bench, made a docket notation, and subsequently signed a new scheduling order setting the case for trial. None of these actions were sufficient to meet the dictate of TRCP 329b(c) that a motion for a new trial can be granted only by a written, signed order. Accordingly the motion for new trial was overruled by the operation of law. In re Joanne Levito-Nelson, __ S.W.3rd __ (Tex. 2/27/09).

Personal Injury. Plaintiff sued the driver of a car and the car owner for negligence and negligent entrustment, respectively. The car owner was granted a summary judgment and at trial the jury found the plaintiff 90% responsible and the car driver 10% responsible. The Court of Appeals affirms a take- nothing judgment holding that any error in granting the summary judgment was harmless because negligent entrustment is a form of vicarious liability and the proportionate responsibility statute does not require a party who is vicariously liable for a tortfeasor's actions to be included in the jury's apportionment determination. The plaintiff's ninety percent share of the fault would have prevented her from recovering damages against the car owner even if the entrustment had been negligent. Conkle v. Chery et al, __ S.W.3rd __ (Tex. App. -- Austin 2/25/09).

Medical Malpractice. If a health care liability claimant does not serve an expert report on his providers within 120 days after filing suit the trial court "must grant" the provider's motion to dismiss the claim, and the provider may appeal from the court's failure to do so. If the claimant's report is timely but deficient, the trial court may grant a single thirty day extension to cure the deficiency, and the order granting that extension may not be appealed. When a trial court both denies a motion to dismiss and grants the claimant a thirty day extension, even though no expert report was timely served, the statute permits a provider to take an interlocutory appeal. Badiga v. Lopez, __S.W.3rd __ (Tex. 1/9/09).

Medical Malpractice. The Plaintiff timely served an "expert report" which the doctor claimed did not qualify as such. The trial court granted a thirty day extension. The question presented on appeal was whether mandamus was available to the doctor. The Court concludes it was not permitted regardless of whether the "expert report" qualified as a deficient report or was no report at all. The Court reasoned that if no report was served, an interlocutory appeal was available, so mandamus is unnecessary. If the report was merely deficient, then an interlocutory appeal was prohibited, and granting mandamus to review it would subvert the Legislature's limit on such review. In Re Mary Louise Watkins, MD., __ S.W. 3rd __ (Tex. 1/23/09).

Forum Selection Clause. McAllen Tropicpak, Inc. (McAllen) entered into contracts with three related management and tax consulting firms (IPA). The contracts provided: "It is agreed that exclusive jurisdiction and venue shall vest in the Nineteenth Judicial District of Lake County, Illinois, Illinois law applying." McAllen brought suit against IPA and another person in Hidalgo County. IPA sought mandamus relief to enforce the forum-selection clause. The Court ruled for IPA holding that evidence that the transaction was solicited, the agreements were executed, the payments were made, the misconduct occurred, and McAllen's witnesses were located in Hidalgo County and that one of the individual defendants could not be joined in Illinois necessitating a separate lawsuit in Texas was insufficient to carry McAllen's burden of proving that "special and unusual circumstances developed after the contracts were executed and that litigation in Illinois would now be so gravely difficult and inconvenient that [McAllen]would for all practical purposes be deprived of its day in court." In Re International Profit Associates, Inc. et al., __S.W.3rd __ (Tex. 1/9/009).

Long Arm Jurisdiction. Retamco sued Paradigm in a Texas district court over unpaid royalties related to oil and gas interests in Texas. After obtaining an interlocutory judgment against Paradigm, Retamco amended it's petition to add Republic, a California Corporation, as a defendant claiming that during the pendency of the litigation, Paradigm assigned to Republic a 72% interest in certain of Paradigm's Texas oil and gas wells and that these transactions constituted fraudulent transfers. Republic filed a special appearance contesting in personam jurisdiction. The Court held that the minimum contacts required by the Constitution had been met: Republic, by purchasing Texas real property, had purposefully availed itself of the privilege of conducting activities in Texas; Republic's potential liability arises, in whole or in from those activities -- notwithstanding the fact that the transfer itself occurred in California. Retamco Operating Inc v. Republic Drilling Company, __ S.W.3rd__ (Tex. 2/27/09).

Premises Liability. A truck driver was injured when his truck hit a pothole on a road maintained by the defendant sand-pit operator. The defendant did not contest that it knew of the pothole or that it was an unreasonably dangerous condition. The plaintiff did not contest that he was aware of the condition, having traversed the road four times previously that day, or that he was aware of the 15 mph speed limit sign. The jury found both parties equally responsible. On appeal the defendant did not dispute that it owed a duty to warn under the circumstances and argued only that -- as a matter of law -- the 15 mph speed sign constituted an adequate warning of the dangerous condition of the road. The Court held that it did not: "the posted speed-limit sign was only a general instruction; it neither informed the driver of road hazards generally, nor did it identify the particular hazard that TXI now says the sign was meant to warn against." TXI Operations L.P. v. Perry, __ S.W.3rd__ (Tex. 2/27/09).

Receivership. Pursuant to a judicial foreclosure of a nursing home facility, the court appointed a receiver to receive and preserve the income and value of nursing home. The receiver submitted a cost report to Medicare that included therapy services provided by the plaintiff and received payment from Medicare, but did not pay the plaintiff from the funds received. The plaintiff filed suit against the receiver for "money had and received" to recover the money it was owed. The Court of Appeals affirmed a summary judgment for the receiver holding that a court-appointed receiver acting within the scope of his authority, is entitled to derived judicial immunity. Rehab Works, LLC v. Flanagan, __S.W.3rd __ (Tex. App. -- 2/26/09).

Preemption/Malicious Prosecution. Plaintiff alleged that Defendants committed the tort of malicious prosecution by initiating an adversary proceeding in Plaintiff's federal bankruptcy case accusing Plaintiff of conspiracy and fraud. The Defendant sought dismissal contending that the action was preempted. The Court held that Congress did not intend to preempt a State malicious prosecution claim that arises out of the filing of an adversary action in a bankruptcy proceeding. Graber et al v. Fuqua, __S.W.3rd__ (Tex. 1/9/09).