News Honors Case Summaries

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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).

 

Hankinson LLP Successfully Defends Against Appellate Challenge to District Court’s Distribution of Marital Estate in Favor of Client

Rick Thompson successfully represented the Wife in the appeal of the district court’s division of the marital estate.  Notably, the El Paso Court of Appeals upheld the district court’s decision to admit parol evidence to prove the terms of a lost premarital agreement proffered by… + read more

Rick Thompson successfully represented the Wife in the appeal of the district court’s division of the marital estate.  Notably, the El Paso Court of Appeals upheld the district court’s decision to admit parol evidence to prove the terms of a lost premarital agreement proffered by Wife.  See Jurek v. Couch-Jurek, 296 S.W.3d 864 (Tex. App.—El Paso 2009, no pet.).

 

Court of Appeals Affirms Summary Judgment Ordering Specific Performance to Real Estate Purchaser and Reverses the Order Prohibiting the Purchaser from also Seeking Damages

In a case involving cross-appeals arising from competing motions for summary judgment in a suit over a failed real estate transaction, Brett Kutnick successfully represented the purchaser of commercial real estate on appeal from a judgment that awarded the purchaser specific performance, but precluded the… + read more

In a case involving cross-appeals arising from competing motions for summary judgment in a suit over a failed real estate transaction, Brett Kutnick successfully represented the purchaser of commercial real estate on appeal from a judgment that awarded the purchaser specific performance, but precluded the purchaser from recovering damages in addition to specific performance.  After Brett Kutnick presented oral argument, the Court of Appeals for the Second District of Texas in Fort Worth affirmed the trial court’s order granting specific performance.  In addition, the court sustained the purchaser’s cross-appeal, reversed that portion of the judgment barring the purchaser from recovering damages attributable to the seller’s delay in performing the sales contract, and remanded the case to the trial court for further proceedings as to those damages. Paciwest, Inc. v. Warner Alan Properties, LLC, 266 S.W.3d 559 (Tex. App.—Fort Worth 2008, pet. denied).

 

Meaning of Ambiguous Indemnity Provision Properly Submitted to Jury

Pursuant to a stock purchase agreement, Maxus sold Occidental all the stock of a subsidiary and agreed to indemnify Occidental against claims arising out of the subsidiary’s prior chemical business. The court of appeals held that the indemnification provision was ambiguous as to whether the… + read more

Pursuant to a stock purchase agreement, Maxus sold Occidental all the stock of a subsidiary and agreed to indemnify Occidental against claims arising out of the subsidiary’s prior chemical business. The court of appeals held that the indemnification provision was ambiguous as to whether the indemnity was limited to a twelve year period or was indefinite in duration. Because of the ambiguity, the court held the trial court had properly submitted the question of its meaning to the jury, which had found in favor of Occidental. The court affirmed the trial court’s judgment in favor of Occidental, which was represented by Deborah Hankinson. Maxus Energy Corp. v. Occidental Chemical Corp., 244 S.W.3d 875 (Tex. App. – Dallas 2008, pet. denied).

 

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).

 

Fifth Circuit Refuses to Review Order Favoring Hankinson LLP Client Under the Collateral Order Doctrine

Client Houston Community Hospital treated three federal employees covered by health benefits plans administered by Blue Cross and Blue Shield under the Federal Employees Health Benefits Act.  Blue Cross allegedly misrepresented the levels of coverage for the employees and then refused to pay as represented. … + read more

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Client Houston Community Hospital treated three federal employees covered by health benefits plans administered by Blue Cross and Blue Shield under the Federal Employees Health Benefits Act.  Blue Cross allegedly misrepresented the levels of coverage for the employees and then refused to pay as represented.  The Hospital sued Blue Cross for negligent misrepresentation and for violations of the DTPA and the Texas Insurance Act.  Blue Cross moved for summary judgment, claiming official immunity, federal sovereign immunity, and federal preemption.  The federal district court denied the motion, and Blue Cross appealed the order to the Fifth Circuit Court of Appeals.  Rick Thompson argued, and the Fifth Circuit agreed, that the district court’s order could not be reviewed by the appellate court under the collateral order doctrine.  See Houston Cmty. Hosp. v. Blue Cross & Blue Shield of Tex., Inc., 481 F.3d 265 (5th Cir. 2007).

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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).

 

Preferential Rights Expire upon Final Production Payment

Representing First Permian, Deborah Hankinson successfully argued that the preferential right reserved by the assignors of certain oil and gas leases had terminated upon the assignees’ final production payment. The court reasoned that the preferential right did not create an independent right for the assignors… + read more

Representing First Permian, Deborah Hankinson successfully argued that the preferential right reserved by the assignors of certain oil and gas leases had terminated upon the assignees’ final production payment. The court reasoned that the preferential right did not create an independent right for the assignors to enjoy forever, but was intended to exist only as long as necessary to protect the assignors’ interest in the full payment for the leases. First Permian, L.L.C. v. Graham, 212 S.W.3d 368 (Tex. App. – Amarillo 2006, pet. denied).

 

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).

 

Hankinson Client Prevails in Preferential Rights Dispute

Non-operating working interest owners brought suit against an oil and gas unit operator, claiming the operator had violated the preferential rights provision of the operating agreement. Affirming the judgment of the trial court for the operator, the court of appeals held the operator had complied… + read more

Non-operating working interest owners brought suit against an oil and gas unit operator, claiming the operator had violated the preferential rights provision of the operating agreement. Affirming the judgment of the trial court for the operator, the court of appeals held the operator had complied with the terms of the notice provision. The court held the provision did not require the operator to provide detailed information to the plaintiffs about how the total purchase price for all the unit operator’s property in the area was allocated to the unit in question. Additionally, the court concluded plaintiffs’ affiliate had not been properly elected successor operator because plaintiffs had failed to count the operator’s votes. In this appeal, Deborah Hankinson successfully represented Occidental Petroleum. Fasken Land and Minerals, Ltd. v. Occidental Permian, Ltd., 225 S.W.3d 577 (Tex. App. – El Paso 2005, pet. denied).

 

Hankinson LLP Successfully Defends Against Effort to Transfer Venue Based on Pretrial Publicity

In this negligence case, a hospital filed a motion for change of venue on the eve of trial, arguing that publicity in the local media precluded it from receiving a fair and impartial trial.  The trial court did not grant the motion, and the hospital… + read more

In this negligence case, a hospital filed a motion for change of venue on the eve of trial, arguing that publicity in the local media precluded it from receiving a fair and impartial trial.  The trial court did not grant the motion, and the hospital sought mandamus relief in the Tyler Court of Appeals.  Rick Thompson argued the case to the court of appeals, which quickly denied the petition for writ of mandamus.  See In re East Tex. Med. Ctr. Athens, 154 S.W.3d 933 (Tex. App.—Tyler 2005, orig. proceeding).

 

 

Brett Kutnick Co-Authors a Paper on Punitive Damages that is Presented at the 18th Annual Advanced Civil Appellate Practice Course

In a comprehensive article entitled “Pondering Punitives:  Issues Arising at Trial and on Appeal,” co-author Brett Kutnick examines the variety of statutory, common law, and constitutional issues that arise in obtaining or defeating, upholding or overturning punitive damage awards in Texas. Attorney: Brett Kutnick Subject… + read more

In a comprehensive article entitled “Pondering Punitives:  Issues Arising at Trial and on Appeal,” co-author Brett Kutnick examines the variety of statutory, common law, and constitutional issues that arise in obtaining or defeating, upholding or overturning punitive damage awards in Texas.

 

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).

 

Texas Supreme Court Rejects Waiver-by-Conduct Exception to Sovereign-Immunity Doctrine

Governmental entities, like the TNRCC, have sovereign immunity from suits for alleged breaches of contracts. Nevertheless, IT-Davy, a general contractor, sued the TNRCC for breach of contract, alleging an equitable, waiver-by-conduct exception to the sovereign-immunity doctrine. According to IT-Davy, the TNRCC waived its immunity from… + read more

Governmental entities, like the TNRCC, have sovereign immunity from suits for alleged breaches of contracts. Nevertheless, IT-Davy, a general contractor, sued the TNRCC for breach of contract, alleging an equitable, waiver-by-conduct exception to the sovereign-immunity doctrine. According to IT-Davy, the TNRCC waived its immunity from suit by accepting full performance of the contract without fully paying for the accepted services. The trial court and the court of appeals adopted this waiver-by-conduct exception. In the Texas Supreme Court, Rick Thompson argued that the TNRCC was protected by its sovereign immunity from suit and that any waiver-by-conduct exception to sovereign immunity should be adopted by the Texas Legislature, not Texas courts. The Texas Supreme Court agreed, reversed the court of appeals judgment, and dismissed IT-DAVY’s breach of contract claim because it was precluded by TNRCC’s immunity from suit. Tex. Natural Res. Conservation Comm’n v. IT-Davy, 74 S.W.3d 849 (Tex. 2002).

 

Brett Kutnick Co-Publishes a Paper on Texas Contort Law that is Presented at the Dallas Bar Association Business Section Meeting

This article analyzes the struggle faced by courts and commentators to clarify the boundary between contract claims and tort claims.  Although the line between a cause of action for contract and one sounding in tort is often blurred, an examination of Texas case law reveals… + read more

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This article analyzes the struggle faced by courts and commentators to clarify the boundary between contract claims and tort claims.  Although the line between a cause of action for contract and one sounding in tort is often blurred, an examination of Texas case law reveals some guiding principles when making the determination of whether a cause of action that includes breach of contract will also support tort and punitive damages.

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