Burkhardt v Houston Orthopedic Assocs., 795 S.W.2d 221 (Tex. App.—Houston [14th Dist.] 1990, writ. denied). (Medical Malpractice; Judgment Notwithstanding the Verdict)
When an act or omission is not in accordance with the established standard of care, jurors may believe expert testimony that the act or omission was the cause of the plaintiff’s damages. Opposing testimony that damage would have been sustained regardless of the act or omission is not sufficient to sustain a judgment notwithstanding the verdict.
Butler v. Mason, 11-05-00273-CV, 2006 WL 3747181 (Tex. App.—Eastland Dec. 21, 2006, pet. denied). (Legal Malpractice; Proximate Cause)
As a matter of law, the illegal conduct rather than the negligence of a convict's counsel that is presumed to be the cause of any injuries flowing from the conviction, unless the conviction has been overturned. Therefore, any claim against the convict’s attorney for negligence will be barred unless the convict is exonerated on direct appeal.
Easton v. Phelan, 01-10-01067-CV, 2012 WL 1650024 (Tex. App.—Houston [1st Dist.] May 10, 2012, no. pet. h.).
Under the qualified immunity rule, the acts of filing pleadings and motions, even if they are unmeritorious or frivolous, and the rendition of legal advice cannot form the factual basis of a fraud claim against an attorney when the acts are performed within the context of discharging duties to a client. When no amendment of pleadings would overcome the attorney qualified immunity, the pleadings are not curable. Therefore, dismissal on special exceptions is proper without allowing an opportunity for the plaintiff to amend the pleadings.
Fin. Strategy Grp., PLC v. Lowry, No. 01-14-00273-CV, 2015 Tex. App. LEXIS 692, at *1 (App.—Houston [1st Dist.] 2015) (Special Appearance; Jurisdiction)
The firm had insufficient contacts with Texas to confer jurisdiction because it did not develop financial strategies allegedly injuring plaintiffs investors, any knowledge that Texas residents would use tax returns it prepared for a nonresident client showed no purposeful availment, the client's move to Texas did not create the firm's minimum contacts, and employing an accountant licensed in Texas was too attenuated to create jurisdiction, as was mailing tax documents to the investors in Texas.
Goggin v. Grimes, 969 S.W.2d 135 (Tex. App.—Houston [14th Dist.] 1998, no pet.). (Res Judicata; Affidavits)
When an attorney withdraws, and then intervenes in the client’s case, suing for payment of fees, any suit for legal malpractice is a compulsory counter-claim because it arises from the same transaction. Therefore, the claim is barred by res judicata if not pleaded in the client’s answer. An affidavit that does not state that the facts set forth are true, but states that the statements are made “to their personal knowledge,” complies with Rule 166a of the Texas Rule of Civil Procedure because it shows that the affiant is personally familiar with the facts.
Islander E. Rental Program v. Ferguson, 917 F. Supp. 504 (S.D. Tex. 1996). (Legal Malpractice; Attorney Disqualification)
When an attorney represents a client in a divorce case, and income from a condominium rental is discussed, the attorney is disqualified from subsequently representing the condominium association in client’s action on the presumption that confidential information may be used to the client’s disadvantage. Disqualification can be justified: (1) if the subject matter of the present and former representation are substantially related, or (2) if [movant's] former attorney possessed relevant confidential information in the manner contemplated by [Texas Disciplinary Rule 1.09(a)(2) ].
Lee v. Kline, No. 14-98-00268-CV, 2000 Tex. App. LEXIS 290 (Tex. App.—Houston [14th Dist.] Jan. 13, 2000, pet. denied) (not designated for publication). (Remittitur; Recusal)
Although judgments can award appellate attorney's fees by using conditional language, the awarding of attorney's fees subject to remittitur is also proper. When a judge has presided over other cases relating to the case at bar, this is not sufficient involvement to sustain a motion to recuse because the influence on the judge would be neither “extrajudicial” nor due to his “personal knowledge.”
Marks-Brown v. Rogg, 928 S.W.2d 304 (Tex. App.—Houston [14th Dist.] 1996, writ denied). (Medical Malpractice; Failure to Obtain Informed Consent)
A suit against a medical provider regarding the failure to adequately disclose the risks or hazards of a particular treatment may only be brought under the theory of negligence in failing to obtain informed consent. A plaintiff is not allowed to submit alternate theories of misrepresentation or fraud under these circumstances.
Morin v. Helfrick, 930 S.W.2d 733 (Tex. App.—Houston [1st Dist.] 1996, no writ). (Medical Malpractice; Affidavit; Objections)
An affidavit offered in support of a motion for a new trial, after a motion for summary judgment is granted, cannot be used as evidence on appeal of the summary judgment. Objections to an affidavit on the grounds that it is not made on personal knowledge, that it fails to specify how the affiant had personal knowledge of the facts asserted, or that it state legal conclusions are objections to substance and may be made for the first time on appeal. Overruled by Rizkallah v. Conner, 952 S.W.2d 580 (Tex. App.—Houston [1st Dist.] Aug 21, 1997, no writ).
Paulsen v. Yarrell, 455 S.W.3d 192, 193 (Tex. App.—Houston [1st Dist.] 2014) (TCPA; Anti-SLAPP)
Because Tex. Civ. Prac. & Rem. Code Ann. § 51.014(a)(12) permits an appeal only from an order that denies a motion to dismiss filed under Tex. Civ. Prac. & Rem. Code Ann. § 27.003, the professor's interlocutory appeal from the denial of attorney fees was not authorized by statute.
Prochaska v. Barnes, No. 01-15-01044-CV, 2016 Tex. App. LEXIS 8100, at *1 (App.—Houston [1st Dist.] 2016) (Special Appearance; Jurisdiction)
Evidence that partnerships managed by nonresidents had leases to drill on oil and gas properties located in Texas was insufficient to establish specific personal jurisdiction over the nonresident managers because the leases were the property of the partnerships and not of the individual partners under Tex. Bus. Orgs. Code Ann. §§ 152.101, 152.102(a); A choice-of-law provision in some of the partnership agreements that specified Texas law did not confer personal jurisdiction by consent because it addressed the law to be applied and not the forum for disputes; Marketing investments in the partnerships nationwide and sending funds to a small number of Texas investors did not give rise to general jurisdiction.
Ronin v. Lerner, 7 S.W.3d 883 (Tex. App.—Houston [1st Dist.] 1999, no pet.). (Rule 11 Settlement Agreements)
A Rule 11 settlement agreement is not invalid for lack of an essential term when the missing term regards an issue that has already been ruled upon by summary judgment.
Vickery v. Vickery, 999 S.W.2d 342 (Tex. 1999). (Legal Malpractice; Breach of Fiduciary Duty; Mental Anguish Damages)
The trial court awarded mental anguish damages to a client for her spouse’s fraud in the division of estate and for her attorney’s breach of fiduciary duty. Although the Texas Supreme Court denied review and issued no opinion, Justice Hecht issued a dissent to the denial stating the trial court’s holding violates the Court’s rules from Schlueter and Douglas. The dissent is heavily cited by other courts; however, the Fifth Circuit has disregarded the dissent as dicta.
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