Texas Jurors

In Texas civil litigants are entitled to a trial by jury consisting of 12 jurors. Alternate jurors may be appointed to serve so long as they meet the same qualifications and are selected when the first 12 are selected. Alternates may be substituted for a juror that dies, becomes disabled or is deemed disqualified. However, unless a juror dies or becomes disabled, a jury verdict cannot be rendered by less than 12 jurors. The result is a mistrial. On the other hand, as few as 9 jurors may render a verdict so long as the jurors excused were excused because of death or disability, not disqualifications. The Texas Supreme Court recently reiterated these rules. To read the opinion click here: http://www.search.txcourts.gov/historical/2014/aug/130409.pdf

Homeowner May Sue Construction Subcontractor

Under certain circumstances, a homeowner may be able to sue a subcontractor even though the homeowner has no direct contract with the subcontractor per a Texas Supreme Court recent opinion. “Having undertaken to install a plumbing system in the house, the plumber assumed an implied duty not to flood or otherwise damage the trust’s house while performing its contract with the builder.” The Texas Supreme Court analyzed the economic loss and said it was not applicable because the duty not to flood the home was independent of the subcontract with the builder and the damages extended beyond the anticipated benefit of the plumbing contract. The full opinion is here: http://www.supreme.courts.state.tx.us/historical/2014/aug/130776.pdf

Re-characterization of Private Property as Public

In an interesting summertime beach decision the Texas Supreme Court held that the “recharacterization of private property as public [does not] constitute a compensable taking under Article I, Section 17(a) of the Texas Constitution.” This case involved Porreto Beach in Galveston, Texas where visitors paid for parking and other amenities, such as umbrellas and chairs, but not the beach. It was undisputed that the State owns the coastal land submerged by the Gulf of Mexico including the “wet beach” (technically, the mean higher high tide line). The “dry beach” is the area which may be privately owned. The decision did not alter these definitions, but merely dealt with the recharacterization of property. To read the full opinion, click here: http://www.supreme.courts.state.tx.us/historical/2014/jul/120483.pdf

Texas Supreme Court Rules on Forum Non Conveniens Case

The aviation litigation practice at Brown Dean often involves parties and accidents outside of Texas. Thus, the doctrine of forum non conveniens is usually a litigated issue. When the plaintiffs are not Texas residents and the accident occurs outside of Texas, most likely Texas is not a proper forum for any litigation arising out of the accident. However, when any plaintiff is a Texas resident the statute creating the doctrine states the the case may be litigated here. It is considered an exception to the statute prohibiting dismissal of the case on forum non conveniens grounds if one plaintiff is a Texas resident. Recently the Texas Supreme Court clarified that “intervening wrongful death beneficiaries are distinct plaintiffs within the meaning of the Texas-resident exception.” Read the Court’s opinion here:


Texas Supreme Court Rule Regarding Causation in Asbestos Cases

Last week the Texas Supreme Court held that the causation required in asbestosis cases is the same causation required in mesothelioma cases. The Court concluded, “…in products liability cases where the plaintiff was exposed to multiple sources of asbestos, substantial factor causation is the appropriate basic standard of causation without including as a separate requirement that the plaintiff meet a strict but for causation test.” Read the full opinion here.


Economic Loss Rule Applied to Negligent Misrepresentation in Construction Claim

The economic loss rules limits a party’s ability to recover purely economic losses under tort theories such as negligence and strict liability. The Texas Supreme Court’s latest decision on the Rule is a good review of the applicable case law. Ultimately, in this case, the Court held a general contractor could not “recover the increased costs of performing its construction contract with the owner in a tort action against the project architect for negligence misrepresentation—errors—in the plans and specifications.” The full opinion is here.

General Contractors – When Sued, It Just Became Easier to Sue the Engineer or Architect.

On July 3, 2014, the Texas Supreme Court clarified an issue which has come up in my practice more than once – if a general contractor is sued, does the GC have to file a certificate of merit with any pleading against an engineer or architect that the Plaintiff has already sued or the GC brings into the lawsuit?


In the past, most law firms representing GCs have filed a certificate of merit. Then, typically when subcontractors also sue the architect or engineer, they typically attempt to incorporate the GC’s certificate, but some file a separate one in an abundance of caution. Now, the Court has saved GCs and subcontractors the time and expense and held that only “the plaintiffs” meaning “the parties that initiated the suit” are required to file certificates of merit to sue architects or engineers.  


Of course, this ruling makes it much easier for a defendant to bring an architect or engineer into the lawsuit than these professionals would probably like. However, typically, these claims will be for contribution and indemnity and not substantive. On one hand, this makes it easier for the GC and these professionals to create a unified defense because the GC is no longer having to obtain an opinion letter that the architect or engineer did something incorrect (which is the purpose of the certificate of merit). On the other hand, arguably, for the GC to prove it is entitled to contribution or indemnity, the GC will have to meet its burden of proof at trial and show evidence of the professional’s alleged wrongdoing. In addition, should the Plaintiff decide to sue the professional after it is brought in by the GC, the Plaintiff will be required to file a certificate of merit. Of course in disputes initiated by the GC against an architect or engineer, a certificate of merit will be required as always.


To read the full opinion click here.

Texas Supreme Court Declares Minority shareholder oppression Not a Cause of Action

“Minority shareholder oppression” is not a recognized cause of action in Texas. In declining to recognize the cause of action, the Texas Supreme Court stated that “existing duties and remedies applicable to corporate dividend declarations and payments offer adequate protections for minority shareholders under most circumstances.” Read the full opinion here.

Supreme Court Rules on Affordable Care Act

Recently the Supreme Court ruled, the Affordable Care Act’s “contraceptive mandate, as applied to closely held corporations, violates RFRA [the Religious Freedom Restoration Act of 1993]”. The holding was limited to the ACA’s contraceptive mandate and to closely held corporations with a “sincere” religious belief which the objecting companies argued was violated by the mandate. Find the opinion here.

Texas Supreme Court Rules on Duty Landowner Owes to Trespasser

Last week, the Texas Supreme Court reaffirmed that “a land occupier owes only a duty to avoid injuring a trespasser willfully, wantonly, or through gross negligence…” Thus, claims “for simple negligence must fail.” Read the opinion here.