Opinions

A non-suit can toll the expert report requirement for a medical-malpractice suit

The Court holds that the 120-day deadline for medical expert reports is tolled when a plaintiff files a voluntary non-suit. Thus, a plaintiff who filed a lawsuit and then voluntarily non-suited that claim 4 days before the 120-day deadline could later file a new lawsuit and expert report.

The Court rejected the argument that a plaintiff who voluntarily non-suits cannot later file a claim. Instead, the Court held that a plaintiff re-filing a suit just has a shorter time period to file the report, reflecting whatever portion of the original 120 days remained at the time of the first non-suit.

When must a mineral owner accommodate a prior agricultural use of the land?

The Court holds that a cattle rancher failed to overcome a motion for summary judgment brought by a mineral company, which argued that the rancher could not prove that their wells violated the “accommodation” doctrine.

The Court ultimately held that the rancher’s evidence on summary judgment was not specific enough about the precisely narrow point — whether he had other, reasonable ways to conduct each aspect of his cattle business even with the operating well on his land.

Although it ruled against the rancher on this record, the Court announced two legal holdings that may favor the next landowner in a similar position:

  • The Court holds that it was irrelevant whether the rancher held other short-term land leases to which cattle might in theory have been moved.

  • The Court also holds that, when the prior use was cattle ranching, it is no answer for the mineral company to argue that the rancher could have switched to some other “agricultural” use other than cattle ranching.

Scope of the remand in this class-action case

Continuing a theme of the term, this marks the Court’s return to a previous case: the oil-and-gas class-action case KATHRYN AYLOR BOWDEN, BEULAH POORMAN VICK, OMER F. POORMAN... v. PHILLIPS PETROLEUM COMPANY, GPM GAS CORPORATION, PHILLIPS GAS MARKETING COMPANY..., No. 03-0824 .

After the case was remanded, the trial court permitted the class plaintiffs to add a new claim. The defendants challenged that with both a mandamus petition (arguing to enforce the mandate) and an interlocutory appeal (arguing that the class certification was improper).

The Court ultimately concluded that the interlocutory appeal was the right procedural vehicle to use and that “the trial court abused its discretion in allowing the addition of a class claim for breach of the implied covenant to market without requiring Yarbrough to file an amended motion for class certification or holding a certification hearing[] and that the trial court abused its discretion in failing to conduct a rigorous analysis of res judicata in contravention of our mandate in Bowden.”

Today’s orders list also dismissed as moot the parallel mandamus petition, IN RE CONOCOPHILLIPS COMPANY F/K/A PHILLIPS PETROLEUM COMPANY, DCP MIDSTREAM, LP F/K/A GPM GAS CORPORATION..., No. 12-0199 .

Home equity lending rules

This is the long-awaited decision about Texas’s home-equity lending rules. I’ll write more about this case in a separate post.

Petitions Granted

This is (another) petition about the “certificate of merit” expert-report requirement for those suing licensed architects or engineers. The wrinkle in this case is that the claim was filed as a cross-claim, not by the original plaintiff. The question is whether a cross-claim must also include a certificate of merit at the time of filing or face dismissal.

Rehearing of a Previously Denied Petition Granted

This petition challenges a trial court award of sanctions against a litigant. Some of the issues include whether it was proper to sanction the litigant (rather than counsel) and whether the record supported a sanction measured by the full attorneys fees incurred by the other side. The Court has not set an argument date or granted the petition. Instead, it has just withdrawn its previous order denying review and returned this to the active docket.