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Archives: Supreme Court of Texas

 

Texas Supreme Court Eliminates $9.6 Million Judgment for Injured Worker Based on the Absence of a Duty

In a highly watched case regarding the duties owed by former property owners, Deborah Hankinson, Brett Kutnick, Rick Thompson, and Jennifer Stagen successfully represented Occidental Chemical Corporation and persuaded the Texas Supreme Court to reverse a $9.6 million negligence judgment awarded to a worker who… + read more

In a highly watched case regarding the duties owed by former property owners, Deborah Hankinson, Brett Kutnick, Rick Thompson, and Jennifer Stagen successfully represented Occidental Chemical Corporation and persuaded the Texas Supreme Court to reverse a $9.6 million negligence judgment awarded to a worker who was partially blinded by acid at a chemical plant years after Occidental’s sale of the plant. Specifically, the Supreme Court addressed whether a property owner who allegedly creates a dangerous condition owes a duty in premises liability to warn of the dangerous condition or to make it safe and a duty in negligence to use reasonable care not to create the dangerous condition in the first place. In answering that question in the negative, the Court rejected the notion that a property owner acts as both owner and independent contractor when improving its own property, subjecting itself to either premises-liability or ordinary-negligence principles depending on the injured party’s pleadings. Instead, the Court held that premises-liability principles apply to a property owner who creates a dangerous condition on its property, and that the claim of a person injured by the condition remains a premises-liability claim as to the owner-creator, regardless of how the injured party chooses to plead it. Because Occidental sold the property eight years before the plaintiff’s accident, the Supreme Court held that Occidental owed no duty of care as that duty had passed to its vendee. The Court therefore reversed the court of appeals’ judgment and rendered judgment that the plaintiff take nothing. See Occidental Chemical Corp. v. Jenkins, No. 13-0961, 2016 WL 82662 (Tex. Jan. 8, 2016).

 

Hankinson LLP’s Government Practice Assists City of Grapevine in Condemnation Case

Hankinson LLP successfully represented the City of Grapevine before the Fort Worth Court of Appeals and the Texas Supreme Court.  In this case, the State condemned real property located in the City.  Because a billboard owned by CBS Outdoor, Inc., overhung that property, the State… + read more

Hankinson LLP successfully represented the City of Grapevine before the Fort Worth Court of Appeals and the Texas Supreme Court.  In this case, the State condemned real property located in the City.  Because a billboard owned by CBS Outdoor, Inc., overhung that property, the State condemned the billboard to remove the aerial encroachment.  In an effort to avoid condemnation, CBS asked the City to permit it to shift the billboard away from the property to remove the encroachment.  The City refused, explaining that nonconforming billboards, like CBS’s billboard, could not be moved, altered, or adjusted under the City’s existing zoning ordinances.  After CBS removed a 4-foot section of the billboard, the City ordered CBS to remove its billboard.  CBS sued the City.  The City filed a plea to the jurisdiction based on its governmental immunity, but the district court denied the plea.  On appeal, the court of appeals reversed the district court’s order in part and rendered judgment that CBS take nothing on its claims for judicial review, injunctive relief, violations of due process, declaratory relief, and attorney’s fees.  On August 22, 2014, the Texas Supreme Court denied CBS’s petition for review.  Rick Thompson argued the case before the Fort Worth Court of Appeals and briefed the case to the court of appeals and the Supreme Court.  See City of Grapevine v. CBS Outdoor, Inc., No. 02-12-00040-CV, 2013 WL 5302713 (Tex. App.—Fort Worth Sept. 19, 2013, pet. denied).

 

Texas Supreme Court Denies Mandamus Relief from Trial Court Ruling in Favor of Hankinson LLP Clients

Hankinson LLP successfully defeated a challenge to a trial court’s ruling in favor of its commercial real estate clients.  After a severe hailstorm, the building owners filed claims under their insurance policies for damage to their buildings.  The insurance company refused to pay, and the… + read more

Hankinson LLP successfully defeated a challenge to a trial court’s ruling in favor of its commercial real estate clients.  After a severe hailstorm, the building owners filed claims under their insurance policies for damage to their buildings.  The insurance company refused to pay, and the building owners were forced to sue.  After actively litigating the case for almost a year, the insurance company attempted to scuttle the litigation by invoking an appraisal clause in the insurance policy.  The trial court denied the insurance company’s motion to compel an appraisal.  The insurance company sought mandamus relief from this ruling in the Dallas Court of Appeals and the Texas Supreme Court.  Both courts denied mandamus relief.  Rick Thompson and Joseph Morris briefed the issues in both courts.  See In re Lexington Ins. Co., No. 14-0182, in the Texas Supreme Court.

 

Hankinson LLP Prevails Again in Texas Supreme Court

Deborah Hankinson, Rick Thompson, and Jennifer Stagen successfully convinced the Texas Supreme Court to affirm the court of appeals’s take-nothing judgment in favor of their client, Georgia-Pacific Corporation.  In this significant asbestos case watched by many legal commentators across the country, the Supreme Court defined… + read more

Deborah Hankinson, Rick Thompson, and Jennifer Stagen successfully convinced the Texas Supreme Court to affirm the court of appeals’s take-nothing judgment in favor of their client, Georgia-Pacific Corporation.  In this significant asbestos case watched by many legal commentators across the country, the Supreme Court defined the substantial-factor causation standard for mesothelioma cases.  The Court ultimately concluded that the evidence was legally insufficient to prove that plaintiff’s alleged exposure to asbestos from Georgia-Pacific joint compound was a substantial factor in causing the plaintiff’s mesothelioma.  Deborah Hankinson argued the case before the Supreme Court.  See Bostic v. Georgia-Pacific Corp., No. 10-0775, 2014 WL 3797159 (Tex. July 11, 2014).

 

Supreme Court Vacates $125 Million Arbitration Award

Deborah Hankinson won a sweeping victory for Tenaska Energy, Inc. before the Texas Supreme Court. The Court vacated a $125 million arbitration award, holding that one of the arbitrators had failed fully to disclose facts that might, to an impartial observer, create a reasonable impression… + read more

Deborah Hankinson won a sweeping victory for Tenaska Energy, Inc. before the Texas Supreme Court. The Court vacated a $125 million arbitration award, holding that one of the arbitrators had failed fully to disclose facts that might, to an impartial observer, create a reasonable impression of the arbitrator’s partiality. The Court held that, when an arbitrator has made a partial disclosure, as occurred in this case, it must “examine the undisclosed information together against what [the arbitrator] actually disclosed,” to conclude whether the undisclosed information might have conveyed to a reasonable person an impression of the arbitrator’s partiality toward one of the parties. Applying that test to the facts, the court held the arbitrator showed “evident partiality” toward Ponderosa, requiring vacation of the arbitration award. The Court rejected Ponderosa’s argument that the arbitrator’s disclosure of the relationships in question was sufficient. Tenaska Energy, Inc., et al. v. Ponderosa Pine Energy, LLC, 2014 WL 2139215 (Tex. 2014).

 

Dallas Appellate Attorney, Mediator Deborah Hankinson Earns Best Lawyers Distinction

DALLAS – Dallas attorney and mediator Deborah Hankinson of the appellate boutique law firm Hankinson LLP has been selected for a seventh consecutive year in The Best Lawyers in America based on her work in appellate law. Ms. Hankinson, a former justice with the Supreme… + read more

DALLAS – Dallas attorney and mediator Deborah Hankinson of the appellate boutique law firm Hankinson LLP has been selected for a seventh consecutive year in The Best Lawyers in America based on her work in appellate law.

Ms. Hankinson, a former justice with the Supreme Court of Texas and the 5th District Court of Appeals in Dallas, has been included in Best Lawyers each year since 2008. In 2012, she was named Best Lawyers’ Dallas Appellate Lawyer of the Year.

“Deborah has long been among the elite appellate lawyers in Texas and the entire nation,” says Rick Thompson, Hankinson LLP’s managing partner. “An honor such as this is an indication of the continued respect her peers in the legal profession have for Deborah and the work she does for clients.” Best Lawyers, the oldest peer-review publication in the legal profession, is widely considered the top guide to U.S. lawyers. To compile the annual publication, Best Lawyers conducts a rigorous peer-review survey that includes more than 3 million confidential evaluations by other lawyers.

Ms. Hankinson represents clients as an appellate attorney, oral advocate, strategist, mediator, arbitrator, and problem-solver. She is Board Certified in Civil Appellate Law by the Texas Board of Legal Specialization. A fellow of the American Academy of Appellate Lawyers, she also is a member of the American Arbitration Association’s national roster of neutrals.

In addition to appearing in the 2014 edition of Best Lawyers, Ms. Hankinson has been honored for her appellate work by the publishers of Texas Super Lawyers, D Magazine, Chambers USA, Benchmark Appellate, Texas Lawyer and the Dallas Business Journal.

Hankinson LLP, the preeminent civil appellate firm in the Southwest, provides clients with
innovative legal insights and judicial perspective in all phases of litigation. The firm’s attorneys work with trial teams to develop strategies designed to put a case in the best position before, during and after trial. Dallas-based Hankinson LLP represents national clients, regional companies, governmental bodies, and individuals with trial and appellate matters, and offers mediation and arbitration services as well. Learn more about the firm at http://hankinsonlaw.com.

 

Vacatur of Arbitration Award for Evident Partiality Upheld on Appeal

Deborah Hankinson, Brett Kutnick, and Jennifer Stagen represented Occidental Petroleum Corporation and several of its subsidiaries in moving to vacate an arbitration award regarding the interpretation of a purchase and sales agreement.  After extensive briefing and argument, the trial court vacated the arbitration award for… + read more

Deborah Hankinson, Brett Kutnick, and Jennifer Stagen represented Occidental Petroleum Corporation and several of its subsidiaries in moving to vacate an arbitration award regarding the interpretation of a purchase and sales agreement.  After extensive briefing and argument, the trial court vacated the arbitration award for evident partiality by one of the neutral arbitrators.  The First District Court of Appeals in Houston subsequently affirmed the vacatur of the arbitration award, and after requesting full briefs on the merits, the Texas Supreme Court denied the petitioners’ petition for review and motion for rehearing.  Amoco D.T. Co. v. Occidental Petroleum Corp., 343 S.W.3d 837 (Tex. App.–Houston [1st Dist.] 2011, pet. denied).

 

Hankinson LLP’s Government Practice Aids City of Dallas

Hankinson LLP is pleased to announce its successful joint representation of one of the firm’s major clients, the City of Dallas, in six related cases before the Texas Supreme Court.  In these cases, a group of current and retired police officers and firefighters sued the… + read more

Hankinson LLP is pleased to announce its successful joint representation of one of the firm’s major clients, the City of Dallas, in six related cases before the Texas Supreme Court.  In these cases, a group of current and retired police officers and firefighters sued the City for additional pay and benefits under an ordinance adopted by the City in 1979. Deborah Hankinson argued the case before the Texas Supreme Court, and Rick Thompson assisted the City’s attorneys with preparing briefs.

After briefing and argument, the Supreme Court concluded that the police officers and firefighters could not prevail on their claims for declaratory relief because those claims were barred by sovereign immunity.  The Court also concluded that the police officers and firefighters could not prevail on their breach-of-contract claims as pleaded in the trial court; however, the Court remanded the contract claims to the trial court to determine whether a subsequently enacted section of the Local Government Code waived the City’s immunity for those claims.  See City of Dallas  v. Martin, 361 S.W.3d 560 (Tex. 2011); City of Dallas v. Albert, 354 S.W.3d 368 (Tex. 2011).

 

Hankinson Wins New Sentencing Hearing for Juvenile

Deborah Hankinson successfully argued to the Texas Supreme Court that a juvenile, who was sentenced to twenty years confinement for sexually assaulting his seven year old cousin, was entitled to a new sentencing hearing. The Court held that if the State’s expert had testified truthfully… + read more

Deborah Hankinson successfully argued to the Texas Supreme Court that a juvenile, who was sentenced to twenty years confinement for sexually assaulting his seven year old cousin, was entitled to a new sentencing hearing. The Court held that if the State’s expert had testified truthfully about the reliability of certain scientific evidence, the evidence would have been excluded. The expert misstated the potential error rate of the evidence and inaccurately described the literature supporting or rejecting it. In closing argument, the State repeatedly referred to the expert’s testimony as proof that defendant was a pedophile. Because the expert’s testimony and the State’s use of that testimony contributed to the defendant’s sentence, the Court remanded the case for a new sentencing hearing. In re M.P.A., 364 S.W.3d 277 (Tex. 2012).

 

Appellate Court Reverses, Renders Judgment That Plaintiffs Take Nothing in Oil-and-Gas Mineral Interest Title Dispute

In a highly complex title dispute between Texas oil-and-gas operators, the plaintiffs claimed superior title to a mineral lease on a 169.1-acre tract in Concho County, Texas. After the jury found that the plaintiffs had superior title, the trial court ordered the defendants—who possessed and… + read more

In a highly complex title dispute between Texas oil-and-gas operators, the plaintiffs claimed superior title to a mineral lease on a 169.1-acre tract in Concho County, Texas. After the jury found that the plaintiffs had superior title, the trial court ordered the defendants—who possessed and had drilled a producing well on the tract—to turn over possession of the property, drilling equipment, and almost $1 million being held in suspense pending adjudication of the case. Hankinson LLP attorney Deborah Hankinson  represented the defendants on appeal. The Austin Court of Appeals reversed the trial-court judgment, rendered judgment that the plaintiffs take nothing, and also rendered judgment that title and possession of the mineral estate, equipment, and funds belonged to the defendants. The plaintiffs appealed to the Texas Supreme Court, which denied review after requesting full briefing on the merits.  McCammon v. Ischy, No. 03-06-00707-CV, 2010 WL 1930149 (Tex. App.—Austin May 12, 2010, pet. denied).

 

Supreme Court Strikes Down Unconstitutionally Retroactive Statute

Representing the estate of a worker who died of mesothelioma, Deborah Hankinson successfully argued to the Texas Supreme Court that a statute limiting corporate successor liability for asbestos-related claims was unconstitutionally retroactive. The statute was enacted after the plaintiff filed common law negligence and product… + read more

Representing the estate of a worker who died of mesothelioma, Deborah Hankinson successfully argued to the Texas Supreme Court that a statute limiting corporate successor liability for asbestos-related claims was unconstitutionally retroactive. The statute was enacted after the plaintiff filed common law negligence and product liability claims against the defendant, a successor corporation to an asbestos manufacturer. The court held the statute’s retroactive elimination of plaintiff’s mature common law tort claims, which had a substantial basis in fact, disrupted his reasonable, settled expectations under the law. The statute was enacted to help only the defendant, and no one else. Because the legislature made no findings on any substantial public interest that the statute served, the court concluded that the public interest served by the statute was slight. Robinson v. Crown Cork & Seal Co., 335 S.W.3d 126 (Tex. 2010).

 

$61 Million Judgment for Breach of Bond Indenture Reversed and Rendered on Appeal

Brett Kutnick was a principal member of the legal team that represented Sears, Roebuck and Co. in the appeal of a $61 million judgment based on a jury verdict that Sears breached a bond indenture by prematurely redeeming corporate bonds held by a number of… + read more

Brett Kutnick was a principal member of the legal team that represented Sears, Roebuck and Co. in the appeal of a $61 million judgment based on a jury verdict that Sears breached a bond indenture by prematurely redeeming corporate bonds held by a number of institutional investors. The Dallas Court of Appeals sustained Sears’ no evidence challenge because the investors failed to present any evidence of breach, and thus reversed and rendered a take-nothing judgment against the investors. After Sears responded to the investors’ petition for review, the Texas Supreme Court denied the petition. Sears, Roebuck and Co. v. AIG Annuity Ins. Co., 270 S.W.3d 632 (Tex. App.–Dallas 2008, pet. denied).

 

Mandamus Granted by Texas Supreme Court to Enforce the Employer’s Arbitration Agreement

Rick Thompson represented the employer in an original proceeding to enforce an arbitration agreement in an Employee Injury Benefit Plan, which was signed by the employee who was killed during the course and scope of his employment. The trial court and court of appeals refused… + read more

Rick Thompson represented the employer in an original proceeding to enforce an arbitration agreement in an Employee Injury Benefit Plan, which was signed by the employee who was killed during the course and scope of his employment. The trial court and court of appeals refused to enforce the arbitration agreement against the employee’s surviving family members who had not signed the Plan. The Texas Supreme Court held that the surviving family members, as wrongful death beneficiaries, were derivative claimants and were therefore bound by the decedent’s agreement to arbitrate. The Court conditionally granted the employer’s petition for writ of mandamus and directed the trial court to enter an order compelling arbitration of the surviving family members’ claims against the employer. In re Golden Peanut Co., 298 S.W.3d 629 (Tex. 2009).

 

Supreme Court Strengthens Causation Requirement in Asbestos Cases

In an asbestos-related products liability and negligence case, the Supreme Court ruled in favor of Deborah Hankinson’s client, Borg-Warner, holding a plaintiff must prove that exposure to the defendant’s product was a “substantial factor” in bringing about his asbestosis. The expert’s testimony that plaintiff had… + read more

In an asbestos-related products liability and negligence case, the Supreme Court ruled in favor of Deborah Hankinson’s client, Borg-Warner, holding a plaintiff must prove that exposure to the defendant’s product was a “substantial factor” in bringing about his asbestosis. The expert’s testimony that plaintiff had been exposed to “some asbestos” was insufficient. Instead, the plaintiff was required to introduce evidence showing the approximate amount of Borg-Warner fibers to which he had been exposed. The plaintiff further had to establish and that this exposure sufficiently contributed to the total dose of asbestos he inhaled such that it could be considered a substantial factor causing his asbestosis. Borg-Warner Corp. v. Flores, 232 S.W.3d 765 (Tex. 2007).

 

Deputy Constables Entitled to Procedural, not Substantive, Due Process

When a newly elected constable refused to swear in three deputy constables, they brought suit against the county claiming substantive and procedural due process violations. The Supreme Court held that as civil servants who could be dismissed only for just cause, the deputies had no… + read more

When a newly elected constable refused to swear in three deputy constables, they brought suit against the county claiming substantive and procedural due process violations. The Supreme Court held that as civil servants who could be dismissed only for just cause, the deputies had no substantive due process rights in their continued employment. Even if they did, however, the county’s termination of their employment was not so arbitrary and conscience-shocking that it violated substantive due process. Because they were not given the procedural due process that the county’s civil service system required, the deputies were entitled to nominal damages without proof of actual injury. On remand, if the county establishes just cause to terminate them, the deputies will only be entitled to damages directly resulting from the denial of a hearing, but if the county does not show just cause, the deputies may recover damages resulting from their dismissal. Deborah Hankinson and Rick Thompson represented the County of Dallas. County of Dallas v. Wiland, 216 S.W.3d 344 (Tex. 2007).

 

City Waives Immunity only to Extent Claims against City Offset City’s Claims

The Supreme Court held that when a municipality and another party bring suit against each other, the city only waives its immunity to the extent the claims against it offset its own affirmative claims. As to any damages claim against the city that exceeds the… + read more

The Supreme Court held that when a municipality and another party bring suit against each other, the city only waives its immunity to the extent the claims against it offset its own affirmative claims. As to any damages claim against the city that exceeds the amount of the offset, the trial court has no jurisdiction. The Court further held that the Texas Tort Claims Act only waives a municipality’s immunity when the city is the user of the property causing injury, which the City of Dallas was not in this case. Deborah Hankinson represented the City in this important decision. Reata Const. Corp. v. City of Dallas, 197 S.W.3d 371 (Tex. 2006).

 

Judicial Candidate Reinstated on Ballot

In this Texas Election Code case, the Supreme Court reversed the trial court’s decision to remove from the primary ballot the name of a candidate for the Texas Court of Criminal Appeals. The candidate, represented by Deborah Hankinson and Rick Thompson, had timely filed a… + read more

In this Texas Election Code case, the Supreme Court reversed the trial court’s decision to remove from the primary ballot the name of a candidate for the Texas Court of Criminal Appeals. The candidate, represented by Deborah Hankinson and Rick Thompson, had timely filed a lengthy petition signed by hundreds of eligible voters to have his name placed on the Republican ballot, but due to a clerical error, several of the pages failed to state he was running for “Place 8” on that court. The Republican Party chair overlooked the defects and approved the petition, which another candidate then challenged. The Supreme Court held that when a challenge is made based on facial defects in a petition that could have been timely cured had the party chair not overlooked them, the trial court must abate the challenge and allow the candidate the opportunity to cure. The Court reasoned that candidates should have the same opportunity to cure as a proper review before the filing deadline would have allowed them. Facial defects should exclude a candidate from the ballot only when a proper review by the party chair would have led to the same result. In re Francis, 186 S.W.3d 534 (Tex. 2006).

 

Texas Supreme Court Rejects Constitutional Challenge to Texas Highway Beautification Act

Rick Thompson successfully defended against a First Amendment challenge to the Texas Highway Beautification Act, which regulates outdoor advertising signs along interstate and federally funded state highways.  In this case, the Act prevented a landowner from displaying a billboard on his nonresidential property. The landowner… + read more

Rick Thompson successfully defended against a First Amendment challenge to the Texas Highway Beautification Act, which regulates outdoor advertising signs along interstate and federally funded state highways.  In this case, the Act prevented a landowner from displaying a billboard on his nonresidential property. The landowner challenged the Act as a violation of his free speech rights.  Rick Thompson argued, and the Texas Supreme Court agreed, that the Act’s proscription against outdoor advertising signs was content neutral and a valid time, place, and manner restriction under the First Amendment.  See Texas Dep’t of Transp. v. Barber, 111 S.W.3d 86 (Tex. 2003).

 

Texas Supreme Court Denies Appointment of Counsel to Indigent Prison Inmate in Civil Case

An indigent prison inmate sought court-appointed counsel in his medical malpractice lawsuit against a prison doctor who ordered the inmate to return to heavy work detail.  The Texas Supreme Court concluded that prisoner litigation against an employee of the prison did not present the type… + read more

An indigent prison inmate sought court-appointed counsel in his medical malpractice lawsuit against a prison doctor who ordered the inmate to return to heavy work detail.  The Texas Supreme Court concluded that prisoner litigation against an employee of the prison did not present the type of exceptional circumstances warranting the appointment of counsel in a civil case.  Rick Thompson authored the briefs filed in the Texas Supreme Court on behalf of the State.  See Gibson v. Tolbert, 102 S.W.3d 710 (Tex. 2003).

 

 

Texas Supreme Court Upholds State’s Immunity for Discretionary Highway Design Decisions

The widow and children of a driver killed in a highway accident sued the State for premises defect under the Texas Tort Claims Act.  According to plaintiffs, the State should have warned the driver of the dangerous condition of the highway median or should have… + read more

The widow and children of a driver killed in a highway accident sued the State for premises defect under the Texas Tort Claims Act.  According to plaintiffs, the State should have warned the driver of the dangerous condition of the highway median or should have installed safety features in the median to prevent the head-on collision.  The Texas Supreme Court concluded that the State retained its sovereign immunity from claims arising from such discretionary roadway design decisions.  Rick Thompson authored the winning briefs filed in the Texas Supreme Court on behalf of the State.  See Tex. Dep’t of Transp. v. Ramirez, 74 S.W.3d 864 (Tex. 2002).

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