This morning, the Supreme Court of Texas issued five opinions and granted the petition for review in one case. Two of the opinions address motions for new trial, applying the standard of review articulated in In re Toyota Motor Sales, USA, Inc., 407 S.W.3d 746 (Tex. 2013). Access the full order list here.
The Court issued the following opinions:
- No. 11-0037, In re Whataburger Restaurants, LP - In a per curiam opinion, the Court held that the trial court abused its discretion in granting a new trial based on evidence that a juror failed to disclose information during voir dire. The plaintiff sought (and obtained) a new trial based on a juror's failure to disclose that she had been a defendant in a prior lawsuit. The Supreme Court noted that four other jurors did disclose that they had been party to a lawsuit in the past, but the plaintiff's counsel did not ask them any questions about the past suits or strike any of them. Moreover, one of the four was seated on the panel and neither party objected. Based on that evidence, the Court found that there was no competent evidence that the juror's failure to disclose resulted in probable injury. In reaching that conclusion, the Court discounted the plaintiff's counsel's testimony about what he would have asked the juror if she had disclosed the fact that she had been a defendant in a prior suit. In a footnote, the Court reiterated that failure to disclose information that would legally disqualify the juror is per se material. Access the opinion here.
- No. 11-1021, Long v. Griffin - In a per curiam opinion, the Court addressed the sufficiency of evidence of reasonableness and necessity of attorneys' fees. The fee affidavit stated the total amount of time spent by two attorneys, but did not provide the time spent on specific tasks. Applying its opinions in El Apple I, Ltd. v. Olivas, 370 S.W.3d 757 (Tex. 2012) and City of Laredo v. Montano, 414 S.W.3d 731 (Tex. 2013), the Court reversed the fee award and remanded for redetermination. Access the opinion here.
- No. 12-0410, In re Health Care Unlimited, Inc. - In a per curiam opinion, the court found that the trial court abused its discretion in granting a new trial. The new trial was based on the fact that one of the jurors communicated with an employee of the defendant while the jury was deliberating. The juror and the employee of the defendant knew each other from church and testified that they were discussing church business, not the case. Voicemails between the two corroborated that testimony. The juror testified that she had not noticed that the defendant's employee was in the courtroom during trial. The trial court did not conclude that the communications were material or that they probably resulted in injury. Therefore, the Supreme Court held that the trial court abused its discretion in granting a new trial. Access the opinion here.
- No. 12-0626, Sawyer v. E.I. DuPont de Nemours & Co. - In an unanimous opinion by Chief Justice Hecht, the Court answered certified questions from the United States Court of Appeals for the Fifth Circuit. The issue is "whether, under Texas law, at-will employees and employees subject to a collective bargaining agreement can sue their corporate employer for fraudulently inducing them to move to a wholly owned subsidiary." The Court concluded that, although employees can sue their employer for fraud in some situations, they cannot do so under the circumstances presented in this case. Access the full opinion here.
- No. 12-0843, Rio Grande Vein Clinic, P.A. v. Guerrero - In a per curiam opinion, the Court applied its recent decision in Bioderm Skin Care, LLC v. Sok, where the Court held that a claim for improper laser hair removal is a healthcare liability claim subject to expert report requirements. Just as in Bioderm, the Court concluded that the plaintiff did not overcome the presumption that the claim is a health care liability claim because expert testimony will be necessary to prove or disprove the merits of her claim. Access the full opinion here.
The Court also granted the petition for review in No. 13-0605, Brown & Gay Engineering, Inc. v. Olivares. The issue is whether an engineering firm that was a contractor for a county toll road authority is protected by the authority's governmental immunity. The court of appeals held that it is not because the contractor was not an "employee" of the toll road authority. The date and time for oral argument have not yet been set.
Finally, as an interesting side note to the two opinions on motions for new trial, the Court denied the motion for rehearing of a petition for review in No. 13-0397, Yagnik v. Hernandez. In that case, the petitioner sought review of the trial court's refusal to consider evidence that the jury verdict was the result of a quotient verdict. This seems to be consistent with the Court's skepticism in the two opinions that the alleged juror misconduct caused injury. (In the interest of full disclosure, I filed an amicus brief for the Texas Association of Defense Counsel in support of the petitioner in this case.)
- Rich Phillips, Thompson & Knight
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