Wills and Estates. Testator's will named his brother as independent executor. After the will was probated a dispute arose between the executor and the testator's ex-wife, acting on behalf of her children who were the beneficiaries under the will, over the proper division of certain property in which both the executor and the estate both had an interest. The ex- wife /children sought a greater than 50% division of the property for the estate and sought to remove the brother as executor. The trial court granted the estate a 58.5% interest in the property but refused to remove the brother. On appeal, the Court of Appeals reversed the trial court's decision on removal. The Texas Supreme Court sided with the trial court, rejecting the argument that a conflict of interest automatically required removal of an independent executor. The Court noted that a trial court has greater discretion in disqualifying an executor pre-appointment than in removing an executor post-appointment and held that a good-faith disagreement between an executor and the estate over the percentage division and valuation of estate assets is not grounds for removal as a matter of law. Kappus v. Kappus, __S.W.3rd __ (Tex. 5/15/09).

Insurance. A driver fleeing police in a high speed chase collides with the plaintiffs' vehicle causing personal injuries. The driver's insurance company denied liability under the policy's intentional-injury exclusion. The jury sided with insured. The Texas Supreme Court holds that the exclusion requires more than intentional reckless conduct on the part of the insured. The exclusion applies when the insured intended, by his conduct, to cause bodily injury or property damage or when a reasonable person would know that such damage or injury would result i.e. the injury was so inevitable that it was intended. The Court holds that the insurer did not establish as a matter of law that its insured intentionally caused the family's injuries, because the insured tried to avoid the collision. Tanner et al v. Nationwide Mutual Fire Insurance Company, __S.W.3rd__ (Tex. 4/17/09)

Insurance. A claims-made policy required that the insured, "as a condition precedent" to its rights under the policy, give notice of a claim to its insurer "as soon as practicable . . . but in no event later than ninety (90) days after the expiration of the ... Discovery Period." A claim was made against the insured during the Discovery Period of the policy but the insured did not give notice to the insurer for about a year, albeit within the aforementioned 90 day period. Although the insurer admitted that it had not been prejudiced by the late notice, it contended, and the lower courts agreed, that the insured's failure to give notice "as soon as practicable" defeated coverage. The Texas Supreme Court disagreed, holding that in a claims-made policy, when an insured notifies its insurer of a claim within the policy term or other reporting period that the policy specifies, the insured's failure to provide notice "as soon as practicable" will not defeat coverage in the absence of prejudice to the insurer. Prodigy Communications Corp v. Agricultural Excess and Surplus Insurance Company, __S.W.3rd__ (Tex. 3/27/09). See also, Financial Industries Corporation v. XL Specialty Insurance Company, __S.W.3rd __ (Tex. 3/27/09) (following Prodigy.)

Employment/Contracts. An at-will employment agreement between an accounting firm and an accountant contained an employee promise not to disclose confidential information (but no employer promise to provide it) and a "client purchase" provision requiring the employee, upon termination of employment, to purchase the portion of the employer's business pertaining to any of the employer's clients who hire the employee within one year of the separation. The employee resigned, started a new accounting firm and sought a declaration that this provision was an unenforceable covenant not to compete. The Court held that the covenant was ancillary to or part of an otherwise enforceable agreement at the time the agreement was made and was, therefore enforceable. The nature of the employment for which the employee was hired reasonably required the employer to provide confidential information to the employee so he could do his job; as such, the employer impliedly promised to provide confidential information. This promise was performed -- and ceased being illusory -- when the confidential information was actually provided. The client purchase provision was designed to hinder the employee's ability to use the confidential information to compete with the employer rendering it ancillary to an otherwise enforceable agreement. Mann Frankfort Stein and Lipp Advisors, Inc. et al v. Fielding, __S.W.3rd__ (Tex. 4/17/09).

Personal Injury. The plaintiff sustained serious injuries when his vehicle was rear-ended by an 18 wheeler loaded with limestone. Shortly before trial the defendant stipulated to negligence, causation and vicarious liability. A jury trial resulted in a substantial verdict for the plaintiff. On appeal the defendant argued that the trial court erred in admitting plaintiff's evidence of violations of federal safety regulations in support of his theories of negligent hiring, retention, supervision and entrustment. The Court of Appeals held that although evidence supporting such alternative liability theories is generally inadmissible when the defendant has stipulated to vicarious liability, in view of the substantial evidence of significant injuries, the evidence of technical violations by the defendant did not "probably cause the rendition of an improper damage award" and its admission was, therefore, harmless. The Court held that there was legally and factually sufficient evidence to support the damages rejecting the defendants arguments, among others, that non-economic damages must stand in a certain ratio to economic damages and that the awards for some damage elements were excessive because they exceeded the amount requested by plaintiff's counsel. The Court sustained the plaintiff's cross point that the defendant was not entitled to toll pre-judgment interest because it had not established by competent evidence the amount or duration of an offer of settlement, having instead simply attached a copy of a settlement letter to its pleadings. Simmons et al v. Bisland, __S.W.3rd __ (Tex. App. -- Austin 4/9/09).

Premises Liability. The plaintiff severed a portion of his finger while grabbing the side of a pool chair which had a broken weld. The Texas Supreme Court affirmed a summary judgment for the defendant holding that the fact that the chair contained a defect and that the chairs were inspected regularly constituted no evidence that the defendant knew of the defect in the chair or even how long the defect existed. Fort Brown Villas III Condominium Association Inc. v. Gillenwater, __S.W.3rd__ (Tex. 4/17/09).

Governmental Liability. Denton County owned and maintained a metal floodgate arm which was unsecured and improperly pointed toward oncoming traffic with the tip of the arm about three feet from the edge of the roadway. The driver left the roadway and the arm punctured the vehicle injuring a backseat passenger. The Texas Supreme Court rejected the plaintiffs' contention that the floodgate arm was a special defect imposing a duty to warn. The Court reasoned that the floodgate arm was unlike "an excavation or obstruction on a roadway" and did not pose a threat to ordinary users of the roadway. Denton County v. Benyon et al, __S.W.3rd __ (Tex. 5/1/09)

Governmental Liability. The plaintiff, the widow of a police officer, brought suit alleging that the City, the Pension Fund, the Fund Board, and individual Board members violated statutory law by reducing her survivor benefits. She sought both declaratory relief and an injunction requiring payment. The Texas Supreme Court held that sovereign immunity protected the City, the Fund and the Board from suit. However, the plaintiff could maintain a suit against the Board members in their official capacity for violation of their ministerial duties to pay benefits in accordance with the law, but her claim was limited to prospective declaratory and injunctive relief only. Sovereign immunity still barred her claim for past payments wrongfully withheld. The Court noted that governmental immunity would not apply to a takings claim -- not asserted here - for past damages. City of El Paso et al v. Heinrich, __S.W.3rd __ (Tex. 5/1/09).

Governmental Liability. While the plaintiff's daughter was driving his car, she encountered a cloud of dust created by a county tractor proceeding on the left shoulder of the road but protruding partially thereon. She steered the car to the right through the cloud and collided with a county shredder proceeding in the same direction and protruding onto the right side of the road. The plaintiff brought suit for property damage against the County under the Texas Tort Claims Act. The Court of Appeals sustained the trial court's denial of the County's plea of sovereign immunity. The Court rejected the contention that the collision arose only from a condition (the dust) and not from the operation of a motor vehicle. The Court found sufficient allegations of negligence in the operation of the County vehicles to invoke the Tort Claims Act. Jurisdiction was not defeated by the possibility that either the dust cloud or the daughter's negligence contributed to the accident. The Court declined the County's request to find the daughter more than 50% liable as a matter of law based on the pleadings. Williamson County v. Voss, __S.W.3rd __ (Tex. App. -- Austin 5/1/09).

Public Nuisance/Expert Testimony. The plaintiffs brought suit against the City of San Antonio claiming that benzene from a closed municipal waste disposal site migrated through the soil to their home causing their minor daughter to contract leukemia and also reducing the value of their home. The jury found that the landfill was a nuisance and the City was negligent and awarded substantial actual and punitive damages. The Texas Supreme Court reversed and rendered judgment for the City. The Court distinguished expert opinion the basis for which is unreliable from expert opinion which is conclusory or speculative. To challenge the probative value of the former, an objection at trial is required; to challenge the probative value of the latter, no trial objection is necessary. The Court held that the the testimony of the plaintiffs' experts as to the amount of benzene exposure and the connection between that exposure and the child's illness was conclusory and could not support an award of personal injury damages. The Court also rejected the plaintiff's "takings" claim holding that the City's negligent failure to prevent landfill gas migration did not rise to the level of a compensable "taking." There was no evidence that the City knew that its operation of the landfill was substantially certain to damage the plaintiffs' property. City of San Antonio v. Pollock, __S.W.3rd __ (Tex. 5/1/09).

Homestead. Chagoya owned a four-plex, living in one unit and renting-out the other three. The Appraisal District granted Chagoya a residential homestead tax exemption for 25% of the property. Sifuentes obtained a judgment against Chagoya and abstracted same creating a judgment lien against non-exempt property. Chagoya sold the four-plex to the Arriolas. Sifuentes filed suit against the Arriolas seeking to foreclose on the judgment lien. The Court of Appeals affirmed a summary judgment for the Arriolas holding that the entire property -- not just the unit in which Chagoya had lived -- was properly characterized as homestead. A proportional homestead tax exemption has no impact on a property's homestead status and, in any event, it was unnecessary to examine Chagoya's intent because the entire building and the land on which it sits counts as homestead when an owner resides in part of the building and rents out the rest. Sifuentes v. Arriola, __S.W.3rd __ (Tex. App. -- Austin 4/22/09).

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For those lawyers who do not live in Travis County and may not have yet heard, Scott Ozmun, judge of the 353rd District Court passed away on May 8, 2009. Judge Ozmun was a widely admired man, a highly regarded lawyer and a promising new judge. His death was a tragic loss to the community and to the Bar.

May 9, 2009 Austin American Statesman Article.

Get a Passport -- Tomorrow, Saturday, May 16,2009. Everyone will need a passport to enter the United States after June 1, 2009.

State Bar Annual Meeting, Dallas, June 25-26. Brochure.

Seminar: Bench Motions and Trials in Bexar County, May 29, 2009. Brochure.

American Bar Association Journal Online.

So Ordered: Federal District Court's No Poop Zone

Texas Bar Blog.

Travis County Public Records Search.

Williamson County Public Records Search.

Hays County Public Records Search.

Bexar County Public Records Search.

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

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Medical Malpractice. After failing to serve the doctor with an expert report within 120 days as required by the MLIIA the plaintiffs voluntarily non- suited their claim. On the next business day the doctor filed a Chapter 74 TCPRC motion for sanctions. The trial court thereafter signed an order of nonsuit and later signed an order denying the doctor's motion for sanctions. On appeal, the Texas Supreme Court held that the order of non-suit did not dispose of the pending motion for sanctions and it wasn't until the trial courts order denying the motion that the case became appealable. On the merits the Court held that even though the plaintiff's non-suit was effective immediately, a motion for sanctions under Chapter 74 and the right to file same survive a nonsuit provided the motion is filed within the trial court's plenary jurisdiction. Crites v. Collins, __ S.W.3rd __ (Tex. 5/15/09).

Medical Malpractice. The Medical Liability and Insurance Improvement Act of 1977 (repealed) provided a $500,000 cap on liability for damages with the proviso that "this section shall not limit the liability of any insurer where facts exist that would enable a party to invoke... the "Stowers Doctrine.'" The Texas Supreme Court held that the proviso did not authorize a judgment against the physician for an amount in excess of the damage cap even when the Stowers Doctrine had been properly invoked. The Court reserved the question of whether the proviso permits a judgment in excess of the damage cap against an insurer. The Court also held that the Plaintiff's argument to the jury that "[f] or years, in this very conservative community, juries have been very liberal with the doctors, very liberal. What I mean is: Their verdicts didn't send much of a message at all" was an improper but not incurable argument. Phillips v. Bramlett, __S.W.3rd __ (Tex. 3/6/09).

Legal Malpractice. Divorce client and his corporations sue his lawyer claiming the lawyer improperly advised and/or permitted the client to include his separate property (corporate stock) as part of the marital estate in a mediated settlement agreement and subsequent divorce decree. The client claimed that the lawyer failed to exercise ordinary care due to alcoholism and drug addiction and that the lawyer and his associates failed to disclose his condition to the client. The Court of Appeals affirmed a summary judgment for the lawyer on the client's breach of fiduciary duty and DTPA claims. The Court held that any alcohol and substance abuse were only conditions which potentially impacted the lawyer's competence; neither of those conditions or any failure to disclose same were independently actionable as a breach of fiduciary duty or deceptive trade practice. The client's complaint of negligent legal services could not be fractured into additional claims. The Court also held that the client's claims that the lawyer should have advised him of a conflict of interest between himself and his corporations, sounded only in negligence and did not implicate the lawyer's fiduciary duty because there was nothing about that failure which put the lawyer's interests ahead of the clients. Further, the trial court did not abuse its discretion in excluding evidence of the lawyer's alcohol or drug abuse problems at the trial of the negligence claims because there was no evidence that the lawyer's performance in negotiating the settlement agreement - the gravamen of the complaint - was actually impaired by alcohol or drugs. Gary Beck et al v. The Law Offices of Edwin J. (Ted) Terry, Jr, deceased et al, __S.W.3rd __ (Tex. App. -- Austin 5/1/09).

Real Estate. A homeowner fell behind on her payments and the home equity lender initiated judicial foreclosure proceedings. The district court authorized the lender to proceed with foreclosure. After foreclosure, the lender filed an FED action in county court and obtained a judgment for possession. The homeowner then filed suit in district court seeking to enjoin the eviction, establish her title and recover damages for wrongful foreclosure. The district court granted the lender's plea to the jurisdiction. The Court of Appeals held that the district court improperly dismissed the wrongful foreclosure claim for damages but properly dismissed the plaintiff's claims for injunctive relief as it lacked jurisdiction to enjoin the enforcement of the county court's judgment. The district court also lacked jurisdiction to adjudicate issue of title, that issue having been determined in the foreclosure proceeding -- a separate action from which the homeowner had failed to appeal. Herrera v. Household Finance III, __ S.W.3rd __ (Tex App.-- San Antonio 4/29/09).

Oil and Gas. When Exxon was unable to successfully renegotiate a lease with the royalty owners it plugged and abandoned the wells. Emerald obtained the leases and attempted to reopen the wells. When it encountered unexpected difficulties Emerald brought this suit under § 85.321 of the Texas Natural Resources Code against Exxon for improperly plugging and intentionally sabotaging the wells. The Texas Supreme Court confirmed that § 85.321 confers a private cause of action on a party whose interest in property is damaged by another's violation of a State conservation law or a Railroad Commission rule, but holds that the private cause of action does not extend to subsequent lessees because they owned no interest in the mineral lease when the prior lessee damaged same. Exxon Corporation et al v. Emerald Oil and Gas Company, __S.W.3rd__ (Tex. 3/27/09).

Oil and Gas/Fraud. In this companion case to the one immediately preceding, royalty owners and Emerald, their oil and gas lessee, sued Exxon, a previous lessee, for alleged wrongful conduct in the development and subsequent abandonment of two oil and gas tracts. The Texas Supreme Court held that Exxon did not breach the development clause because its obligation was only to drill and complete at least one well in each zone, not to fully exploit or exhaust the reserves. The Court held, however, that the trial court improperly directed a verdict for Exxon on the plaintiffs' fraud claim. The Court rejected Exxon's argument that its false representations made in the well plugging reports filed with the Railroad Commission were not made with the intention that they be relied upon by the plaintiffs: "the intent-to-induce reliance element of fraud" was met in this case because Exxon knew of the plaintiffs' interest in continuing development of the lease. Accordingly, Exxon had information that would lead a reasonable person to conclude there was an "especial likelihood" that the plaintiffs would rely on Exxon's inaccurate filings at the time it filed them. Exxon Corporation et al v. Emerald Oil and Gas Company et al, __S.W.3rd__ (Tex. 3/27/09)

Arbitration. Dispute between working interest owners and their operator. The trial court stayed the pending litigation and compelled arbitration. The Texas Supreme Court holds that mandamus was unavailable to review the trial court's order because the relator had an adequate remedy by appeal. The Court states that a trial court that compels arbitration should generally stay -- not dismiss -- the underlying lawsuit. Mandamus is not available to review the stay order except when it is clearly and indisputably shown that the district court had no discretion to stay the proceedings. Mandamus is not available to review the order compelling arbitration unless the applicant can show that it has no adequate remedy by appeal -- a circumstance the Court describes as rare. If the trial court dismisses the lawsuit, however, it is ripe for appeal. In Re Gulf Exploration LLC, __S.W.3rd__ (Tex. 4/17/09).

Civil Procedure. Texas Rule of Civil Procedure 193.6, which provides for the exclusion of evidence due to an untimely response to a discovery request, applies in a summary judgment proceeding. Fort Brown Villas III Condominium Association Inc. v. Gillenwater,__ S.W.3rd __ (Tex. 4/17/09).