Haley & Olson, PC

New Study Indicates Tort Reform in Texas Has Not Increased Physician Supply

admin — Mon, 14 May 2012 16:57:58 +0000

According to a new study published in April 2012, tort reform measures passed in Texas in 2003 have not increased physician supply in Texas.

The study was authored by David Hyman, University of Illinois College of Law; Charles Silver of the University of Texas at Austin – School of Law, and Bernard Black of Norwestern University – School of Law.

A summary of their findings can be found at www.centerjd.org/system/files/TexasPhysicianSupplyF.pdf

Ted Frank, of the Manhattan Institute, and known proponent of tort reform, has stated after reading this study, "I, for one, am going to stop claiming that Texas tort reform increased physican supply without better data demonstrating that."

Texas Trial Law Advocate
Texas Trial Law Advocate

Craig Cherry Now Board Certified in Civil Trial Advocacy by the National Board of Trial Advocacy

ccherry — Sat, 12 May 2012 18:31:03 +0000

Craig Cherry has become Board Certified in Civil Trial Advocacy by the National Board of Trial Advocacy. The National Board of Trial Advocacy is an accredited organizaton by the American Bar Association for providing board certification for attorneys across the nation. The National Board of Trial Advocacy certification program provides recognition for superior achievement in trial advocacy through a rigourous certification and screening process.

Last year, Craig also became Board Certified in Civil Trial Law and Personal Injury Trial Law by the Texas Board of Legal Specilization. Currently, Craig is one of only 51 lawyers in the State of Texas holding all three of these certifications. Congratulations Craig!

Objections to Affidavit for Lack of Jurat Must be Objected to at Trial Court

admin — Sun, 29 Apr 2012 16:54:18 +0000

In The Mansions in the Forest, L.P. v. Montgomery County, mso-fareast-font-family:"Times New Roman"”>10-0969, 2012 WL 1370867 (Tex. Apr. 20, 2012), the Texas Supreme Court considered whether the lack of a jurat - color:#252525″>a clause stating that a writing was sworn to before an authorized officer – in an affidavit opposing a motion for summary judgment is a defect that must have been objected to before the trial court ruled on the motion in order to preserve error.

The Beaumont Court of Appeals had previously held that omission of a jurat was a substantive defect under both the Texas Government Code and Texas Rule of Civil Procedure 166a, and that such a defect could be raised for the first time on appeal. However, the Texas Supreme Court disagreed, holding that that neither the Government Code nor Texas Rule of Civil Procedure 166a requires such an affidavit to contain a jurat. However, to meet the definition of an “affidavit” under the Texas Government Code Section 312.011, the record must indicate the affidavit was sworn to. In this case, there was no such evidence in the record; therefore, the written statement did not meet the requirements of an affidavit.

Furthermore, because no objection to the affidavit was made in the trial court about the purported affidavit’s failure to satisfy the requirements of the Texas Government Code, the defect was waived and was not preserved for appeal.

Texas Trial Law Advocate
Texas Trial Law Advocate

Private Lawyer Advising Cities Has Immunity from Suit

admin — Mon, 23 Apr 2012 16:50:51 +0000

On April 17, 2012, the U.S. Supreme Court held that a private attorney retained by the government to carry out its work is entitled to seek qualified immunity from suit under Section 1983. (Section 1983 provides a cause of action against state actors who violate an individual’s rights under federal law. See 42 U.S.C. § 1983). The full opinion, Filarsky v. Delia, 10-1018, 2012 WL 1288731 (U.S. Apr. 17, 2012), can be found here.

Background Facts

text-indent:.5in”>After its private investigator reported back, the City hired Filarsky, a private attorney, to initiate a formal investigation and to interview Delia. At the interview, with his attorney present, Delia acknowledged that he bought the supplies while on sick leave, but denied having done any work on his home. In an effort to verify Delia’s story, Filarsky ordered Delia to produce the materials for the fire department official’s inspection. Delia reluctantly complied.

Question Presented & Court Holding

text-indent:.5in”>Chief Justice John G. Roberts Jr. wrote the unanimous opinion; Justice Ginsburg and Justice Sotomayor both wrote concurring opinions. After reviewing common law precedent, the Court reasoned that qualified immunity protections should apply regardless of whether the individual sued as a state actor works for the government full-time or on some other basis. The Court thus held that Filarsky was entitled to immunity.

Texas Trial Law Advocate
Texas Trial Law Advocate

Recovery of Court Costs in Texas State Court

ccherry — Fri, 20 Apr 2012 23:30:07 +0000

As a general rule, a successful party to a suit shall recover of his adversary all costs incurred therein. See Tex. R. Civ. P. 131.

The term “successful party” means one who is successful based on the merits of a civil claim, not on whether damages are actually awarded in favor of that party. A defendant who obtains a take-nothing judgment is a “successful party.” The term “costs” means “those items in the clerk’s bill of costs,” which includes:

clerks fees;
service fees;
court-reporter fees for the original stenographic transcripts of trial/hearings; and
deposition costs for the original transcript (not additional copies) plus any exhibits.

Rule 203.2 of the Texas Rules of Civil Procedure requires “[t]he deposition officer [to] file with the court, serve on all parties, and attach as part of the deposition transcript or non-stenographic recording of an oral deposition a certificate duly sworn by the officer stating . . . the amount of the deposition officer’s charges for preparing the original deposition transcript, which the clerk of the court must tax as costs.”

However, if the successful party’s court costs are not on file with the clerk, the successful party should submit an accounting of court costs so that the clerk can perform its ministerial duty and tax costs in accordance with the Rules of Civil Procedure.

A successful party in a lawsuit is not required to submit an accounting of its court costs to the trial court or opposing counsel before judgment may be entered adjudicating such costs. In fact, the trial court’s judgment should only state that costs are awarded, and not state the amount taxed as costs.

Authority/Suggested Reading:

Tex. Civ. Prac. & Rem. Code § 31.007.

Tex. R. Civ. P. 203.2(f).

Tex. R. Civ. P. 622.

Roberts v. Williamson, 111 S.W.3d 113, 124 (Tex. 2003);

Furr’s Supermkts., Inc. v. Bethune, 53 S.W.3d 375, 378 (Tex. 2001).

Rogers v. Walmart Stores, 686 S.W.2d 599, 601 (Tex. 1985).

Wingert v. Devoll, 03-09-00440-CV, 2010 WL 3271744 (Tex. App.—Austin Aug. 20, 2010, pet. denied).

Imperial Lofts, Ltd. v. Imperial Woodworks, Inc., 245 S.W.3d 1, 8 (Tex. App.—Waco 2007, pet. denied).

Madison v. Williamson, 241 S.W.3d 145, 158 (Tex. App.—Hous. [1st Dist.] 2007, pet. denied).

Labor v. Warren, 268 S.W.3d 273, 278-79 (Tex. App.—Amarillo 2008, no pet.).

7-101 Dorsaneo, Texas Litigation Guide § 101.09.

16 Tex. Jur. 3d Costs § 104.

The Dallas Court of Appeals Holds that a Denial of Leave to Designate a Responsible Third Party is Subject to Mandamus Relief.

admin — Fri, 20 Apr 2012 17:00:24 +0000

The Dallas Court of Appeals recently held that a denial of leave to designate a responsible third party is subject to mandamus relief. In In re Smith, No. 05-11-01657-CV., 2012 WL 1066331 (Tex. App.—Dallas 2012, no pet. h.), the Dallas Court of Appeals held that an “improper denial of leave to designate a responsible third party may not be adequately addressed by appeal,” and, as such, appellants were entitled to mandamus relief. The Dallas Court of Appeals noted that there is a split amongst the other Texas Courts of Appeals regarding this issue. Specifically, the Dallas Court of Appeals noted that some courts have granted mandamus relief. E.g., In re Brokers Logistics, Ltd., 320 S.W.3d 402, 408 (Tex. App.—El Paso 2010, orig. proceeding); In re Arthur Andersen LLP, 121 S.W.3d 471, 485–86 (Tex. App.–Houston [14th Dist.] 2003, orig. proceeding). It also noted that other courts have denied mandamus relief, holding that appeal is ordinarily an adequate remedy for such errors. E.g., In re Unitec Elevator Servs. Co., 178 S.W.3d 53, 63–64 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding); In re Martin, 147 S.W.3d 453, 459–60 (Tex. App.—Beaumont 2004, orig. proceeding, pet. denied). The Texas Supreme Court has not yet issued an opinion addressing this issue.

Texas Trial Law Advocate
Texas Trial Law Advocate

Martindale-Hubbell® is pleased to announce AV® Preeminent™ and BV® Distinguished™ ratings at Haley & Olson.

ccherry — Tue, 10 Apr 2012 14:06:58 +0000

Martindale-Hubbell® is pleased to announce that Herbert S. Bristow, Blake Rasner, Leslie Allen Palmer, Jr., Daniel A. Palmer, Charles D. Olson, David Cherry and Richard Vander Woude have been given an AV^® Preeminent™ Peer Review rating, the highest rating by Martindale-Hubbell®. Each of these attorneys have received this designation for in excess of 10 years. Michael W. Dixon has received a BV^® Distinguished™ rating. Martindale-Hubbell® is the largest and oldest peer review rating service for attorneys in the United States. AV Preeminent and BV Distinguished are certification marks of Reed Elsevier Properties Inc., used in accordance with the Martindale-Hubbell® certification procedures, standards and policies. Martindale-Hubbell® is the facilitator of a peer review rating process. Ratings reflect the anonymous opinions of members of the bar and the judiciary. Martindale-Hubbell® PEER REVIEW RATINGS™ fall into two categories – legal ability and general ethical standards. For further explanations of the rating system, please refer to www.martindale.com/ratings.

Fall 2012 Issue of The Advocate Will Tackle Social Media and The Law

admin — Sun, 08 Apr 2012 16:51:09 +0000

The Advocate is a quarterly publication of the Litigation Section of the State Bar of Texas. Every publication addresses hot topics and trends in litigation in the State of Texas. The Fall 2012 issue will be no different when it addresses Social Media and The Law.

The editoral board did a great job lining up experienced authors on a topic that is very relevant today in Texas, and the nation, for that matter. Just to give you a sample of a few of the topics that will be discussed, the Fall 2012 issue will address discovery, evidence and ethics issues (for both lawyers and judges) as they relate to the use of social media, as well as, how social media can effect jury trials (both the use of social media by lawyers to learn about the background of potential jurors and the use of social media by jurors during trials). It really should be a great issue.

Texas Trial Law Advocate
Texas Trial Law Advocate

Texas Supreme Court Affirms Property Rights of Shoreline Owners

admin — Thu, 05 Apr 2012 17:04:38 +0000

On March 30, 2012, the Texas Supreme Court, in Severance v. Patterson, affirmed the private property rights of shoreline property owners. In doing so, the Court ruled the public’s right of access to state beaches is not guaranteed in the event of a hurricane or storm reshaping the coastline.

This ruling is thought to limit the state’s ability to enforce the Open Beaches Act, a 53 year old law that has in the past been used to compel landowners to raze or move structures that intrude on the public right of way due to storm erosion. The opinion focuses on the "dry beach," which runs from the high tide mark to the vegetation line and may be privately owned, as opposed to the “wet beach” which runs from the high tide mark to the water, which is public land.

In so ruling, Justice Wainwright stated:

The public may have a superior interest in use of privately owned dry beach when an easement has been established on the beachfront. But it does not follow that the public interest in the use of privately owned dry beach is greater than a private property owner’s right to exclude others from her land when no easement exists on that land.

This 5-3 ruling is the result of a controversy that began after Hurricane Rita moved the vegetation line behind Carol Severance’s properties on Galveston Island, and she was ordered to raze or move her structures.

Texas Trial Law Advocate
Texas Trial Law Advocate

Texas Supreme Court Holds Jury Waiver Enforceable

admin — Tue, 27 Mar 2012 16:58:55 +0000

On March 9, 2012, the Texas Supreme Court issued its decision in In Re Frank Motor Company, which held that a long time employee who signed a jury waiver agreement was not entitled to have it set aside because he was coerced into signing it by his employer.

In this case, a long-time employee (“Employee”) signed a Jury Trial Waiver only after his supervisor threatened to fire him if he did not sign it. Employee claimed that he only signed the Jury Trial Waiver to avoid losing his job of twenty-eight years. Almost a year after signing the Jury Trial Waiver, Employee was terminated. Employee then brought an action against his employer (“Employer”) for age discrimination. The trial court denied Employer’s Motion to Strike Employee’s Demand for Jury Trial and Employer subsequently filed a Petition for Writ of Mandamus to Compel Enforcement of the Jury Trial Waiver.

The Texas Supreme Court held that Employer’s threat to exercise its right to terminate Employee could not amount to coercion that would invalidate the Jury Trial Waiver. As such, the Texas Supreme Court directed the trial court to grant Employer’s Motion to Strike Employee’s Jury Demand.

Texas Trial Law Advocate
Texas Trial Law Advocate