Texans for Lawsuit Reform

Kent impeached~ Who are his corporations donors?

2009-06-24T17:42:00.000-07:00

"U.S. House impeaches Kent," is Stewart Powell's report for the Houston Chronicle.
The House today impeached imprisoned U.S. District Court Judge Samuel B. Kent and sent his case to the Senate for trial.

The Senate is expected to quickly convene a trial – possibly within a matter of weeks – to cut off the judge’s $174,000 annual federal salary.

The House overwhelmingly adopted four articles of impeachment against the 59-year-old jurist on rapid-fire roll call votes over the course of 30 minutes.

The vote on the first article of impeachment was 389-0. Not a single member of the House spoke on Kent’s behalf.

The charges accused Kent of abusing his power as a judge by sexually assaulting two female court employees as well as lying about his conduct to a judicial inquiry, the FBI and the Justice Department.

Rep. John Conyers, D-Mich., chairman of the House Judiciary Committee that urged impeachment, called Kent’s conduct “shocking and shameful.”

Rep. Sheila Jackson Lee, D-Houston, a member of the task force that investigated the case, said women across America deserve a “safe and secure workplace.”

Jackson Lee added: “We must act. We have no ability to ignore it.”

Rep. Louis Gohmert, R-Tyler, decried “the games that were played” by Kent as he tried to retain his post and the salary that goes with it even though he is in prison.

The House acted barely two weeks after a House Judiciary Committee task force heard graphic testimony about sexual attacks from case manager Cathy McBroom, 50, and legal secretary Donna Wilkerson, 45.

Kent’s refusal to immediately resign his post and relinquish his salary forced the House to take action.

The House has last impeached a federal judge in 1989. A total of 13 judges have faced impeachment proceedings in the House since 1803, seven of whom were subsequently convicted by the Senate and removed from the bench.

Kent entered a federal prison medical facility in Ayer, Mass., on Monday to begin a 33-month felony sentence on one count of obstruction of justice following a plea bargain that dropped five other charges.

Earlier coverage begins with this post.

State Farm Insurance ~ Is there to collect money ...getting paid if you want coverage state farm aint there put that in a commercial

2009-05-26T23:31:00.000-07:00

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NUMBER 13-07-00381-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RAMON AND ANITA GARCIA, Appellants,

STATE FARM LLOYDS, Appellee.

On appeal from the 275th District Court of Hidalgo County, Texas.

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NUMBER 13-07-381-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RAMON AND ANITA GARCIA, Appellants,

STATE FARM LLOYDS, Appellee.

On appeal from the 275th District Court of Hidalgo County, Texas.

CONCURRING OPINION

Before Chief Justice Valdez and Justices Yañez and Benavides

Concurring Opinion by Justice Yañez

I agree that State Farm's no-evidence motion for summary judgment is legally insufficient because it fails to state specifically which elements of the Garcias' claims are being challenged.⁽¹⁾ I further agree that the motion is therefore treated as a traditional motion for summary judgment.⁽²⁾ However, in reviewing the motion as a traditional motion, I would hold that it is legally insufficient as a matter of law because the grounds for summary judgment are not expressly presented in the motion. Accordingly, I concur in the judgment, but for different reasons.

Sufficiency of State Farm's Motion

In its motion, State Farm argued only one non-mold-related "ground," as follows:

Additionally, there is no evidence that the amount paid by State Farm was insufficient to repair the water damage. The Garcias have repaired their home, yet there is no evidence the cost of repairs exceeded the $26,779.42 State Farm paid.

The majority addresses the argument that State Farm makes in its appellate brief--that based on a specific provision in the policy, State Farm's liability is limited to the amounts the Garcias "actually and necessarily spent" to repair the damage to their home. The majority finds the provision State Farm relies on to be inapplicable, and thus concludes that the motion was "based on a flawed premise."

In McConnell v. Southside ISD, the supreme court held:

Consistent with the precise language of Rule 166a(c), we hold that a motion for summary judgment must itself expressly present the grounds upon which it is made. A motion must stand or fall on the grounds expressly presented in the motion. In determining whether grounds are expressly presented, reliance may not be placed on briefs or summary judgment evidence.

. . . .

These rules also permit the trial court to consider a brief in support of a motion for summary judgment as guidance in making its determination whether the summary judgment evidence demonstrates that the moving party is "entitled to judgment," see Tex. R. Civ. P. 166a(c), but not in determining whether summary judgment grounds and issues are expressly presented.

. . . .

Even if the non-movant fails to except or respond, if the grounds for summary judgment are not expressly presented in the motion for summary judgment itself, the motion is legally insufficient as a matter of law.⁽³⁾

To recover under a breach of contract cause of action, the Garcias were required to show: (1) the existence of a valid contract, (2) that they performed or tendered performance, (3) that State Farm breached the contract, and (4) that they sustained damages as a result of State Farm's breach.⁽⁴⁾

To be entitled to summary judgment, State Farm was required to show that it was entitled to judgment as a matter of law and that no genuine issue of material fact exists.⁽⁵⁾ State Farm was required to disprove, as a matter of law, one of the essential elements of each of the Garcias' causes of action.⁽⁶⁾

Here, the majority implicitly construes State Farm's motion as challenging either the "breach" element or "damages" element of the Garcias' claim. I conclude that State Farm has failed to expressly present the grounds upon which the motion is made in the motion itself.⁽⁷⁾ Accordingly, I would hold that the motion is legally insufficient as a matter of law.⁽⁸⁾

LINDA REYNA YAÑEZ,

Justice

Concurring Opinion delivered and filed

this the 30th day of April, 2009.

1. See Tex. R. Civ. P. 166a(i); Callaghan Ranch, Ltd. v. Killam, 53 S.W.3d 1, 3 (Tex. App.-San Antonio 2000, pet. denied).

2. See Hamlett v. Holcomb, 69 S.W.3d 816, 819 (Tex. App.-Corpus Christi 2002, no pet.).

3. McConnell v. Southside ISD, 858 S.W.2d 337, 341-42 (Tex. 1993) (emphasis added).

4. Renteria v. Trevino, 79 S.W.3d 240, 242 (Tex. App.-Houston [14th Dist.] 2002

, no pet.).

See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215-16 (Tex. 2003).

Lear, Sigler, Inc. v. Perez, 819 S.W.2d 470, 471 (Tex. 1991).

7. See McConnell, 858 S.W.2d at 341.

See id. at 342.

O P I N I O N

Before Chief Justice Valdez and Justices Yañez and Benavides

Opinion by Justice Benavides

Appellants, Ramon and Anita Garcia, appeal from two orders granting summary judgment in favor of appellee, State Farm Lloyds ("State Farm"). By four issues, the Garcias contend the trial court erred in overruling their objections to State Farm's summary judgment evidence, sustaining State Farm's objections to their summary judgment evidence, and in granting final summary judgment in State Farm's favor. We affirm, in part, and reverse and remand, in part.⁽¹⁾

I. Jurisdiction As a preliminary matter, we address several jurisdictional issues. First, on August 6, 2007, the clerk of this Court sent the Garcias' counsel a "defect letter," noting that the trial court's March 27, 2007 summary judgment did not appear to be a final appealable order because it did not dispose of all parties; specifically, the judgment did not address causes of action against Andy's Refrigeration, a defendant below.⁽²⁾ The Garcias and State Farm responded that all parties considered the trial court's order to be a final order because Andy's Refrigeration was never served. Although the Garcias attempted to serve Andy's Refrigeration in 2004, service was not effected. It is undisputed that there were no further attempts at service.

Appellate courts are obligated to review sua sponte issues affecting jurisdiction. M.O. Dental Lab v. Rape, 139 S.W.3d 671, 673 (Tex. 2004). We examine the entire record to determine whether an order disposes of all pending claims and parties. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 205-06 (Tex. 2001).

In support of their argument, the parties cite the principle that a judgment may be final, even though it does not dispose of all parties named in the petition, if the remaining party was never served with citation and did not file an answer, and nothing in the record indicates that the plaintiff ever expected to obtain service upon the remaining party. See Youngstown Sheet & Tube Co. v. Penn, 363 S.W.2d 230, 232 (Tex. 1962) (describing when failure to obtain service on defendant may be treated as a nonsuit for purposes of determining finality of judgment); M.O. Dental Lab., 139 S.W.3d at 674-75 (holding that decision in Penn survives Lehmann). We agree. Here, although Andy's Refrigeration was never served, there is nothing in the record to suggest that the Garcias ever expected to do so. "[A] judgment is final for purposes of appeal when (1) the judgment expressly disposes of some, but not all defendants, (2) the only remaining defendants have not been served or answered, and (3) nothing in the record indicates that the plaintiff ever expected to obtain service on the unserved defendants." Sondock v. Harris County Appraisal Dist., 231 S.W.3d 65, 67 n.1 (Tex. App.-Houston [14th Dist.] 2007, no pet.) (citing Penn, 363 S.W.2d at 232; M.O. Dental Lab., 139 S.W.3d at 674-75). We conclude that the summary judgment is final for purposes of appeal. See id.

Second, State Farm has filed a motion to dismiss this appeal for want of jurisdiction. State Farm argues that because the Garcias' motion for new trial was filed more than thirty days after summary judgment was granted, the motion was untimely and therefore, the notice of appeal was untimely. The Garcias contend that their motion for new trial was timely filed under the "mailbox rule." See Tex. R. Civ. P. 5. State Farm contends that it was not.

The trial court's order granting summary judgment was signed on March 27, 2007; therefore, a motion for new trial was due on or before April 26, 2007. See Tex. R. Civ. P. 329b. In their response to State Farm's motion, the Garcias assert that they mailed their motion for new trial on April 20, 2007, six days before the deadline. They contend the motion for new trial was placed in an envelope correctly addressed to the clerk, stamped first-class United States postage on April 20, 2007 by a computerized pre-paid postage machine, and mailed through the United States Postal Service on that date. The motion for new trial was received and file-stamped by the Hidalgo County District Clerk's office on May 4, 2007. The Garcias filed a notice of appeal on June 11, 2007. See Tex. R. App. P. 26.1(a) (providing notice of appeal must be filed within thirty days after judgment is signed, or within ninety days if any party files a motion for new trial).

The question before us is whether the Garcias perfected their appeal in reliance upon the "mailbox rule." Rule 5 provides, in pertinent part that

if any document is sent to the proper clerk by first-class United States mail in an envelope or wrapper properly addressed and stamped and is deposited in the mail on or before the last day for filing same, the same, if received by the clerk not more than ten days tardily, shall be filed by the clerk and be deemed filed in time. A legible postmark affixed by the United States Postal Service shall be prima facie evidence of the date of mailing.

Tex. R. Civ. P. 5. Texas courts have held that, "[i]n the absence of a proper postmark or certificate of mailing, an attorney's uncontroverted affidavit may be evidence of the date of mailing." Lofton v. Allstate Ins. Co., 895 S.W.2d 693, 693-94 (Tex. 1995).

In support of their argument that they timely filed their motion for new trial, the Garcias produced a copy of the envelope, correctly addressed to the district clerk's office, and stamped "United States Postage," dated April 20, 2007. The Garcias acknowledge that the United States Postage stamp was affixed by a computerized rented postage machine at their counsel's office. State Farm argues that the stamp on the envelope is not a United States Postal Service postmark and does not establish actual mailing on April 20, 2007. Thus, according to State Farm, the April 20, 2007 postmark does not constitute prima facie evidence of mailing. See Tex. R. Civ. P. 5.

We need not decide whether the April 20, 2007 postmark constitutes prima facie evidence of mailing because the Garcias also produced two affidavits. The first affidavit, from Shannon Loyd, states that she completed the motion for new trial on April 20, 2007, used her office's United States Postal Service machine to post mark the envelope, and mailed it on that date. A second affidavit, from Angelica Coronado, Ms. Loyd's secretary, states that she and Ms. Loyd used the office postal machine to postmark the envelope containing the motion for new trial on April 20, 2007 and mailed it on that date. State Farm offered no evidence controverting either affidavit. We conclude the two affidavits constitute prima facie evidence that the motion for new trial was placed in the United States mail, postage pre-paid, on April 20, 2007. See Lofton, 895 S.W.2d at 693-94; Alvarez v. Thomas, 172 S.W.3d 298, 302-03 (Tex. App.-Texarkana 2005, no pet.) (noting certificate of service and attorney's affidavit are both prima facie evidence of date of mailing).

State Farm also contends that even if the Garcias establish that they mailed the motion for new trial on April 20, 2007, "the mailbox rule's requirements were not met as the motion was not received by the Court until May 4, 2007, more than ten days after mailing." According to State Farm, unlike Texas Rule of Appellate Procedure 9.2(b), which provides that a document is timely if received within "ten days after the filing deadline," see Tex. R. App. P. 9.2(b), Texas Rule of Civil Procedure 5 provides that a document is timely filed if it is received by the clerk "not more than ten days tardily." See Tex. R. Civ. P. 5.

State Farm cites Guevara v. Nolot in support of its position that the mailbox rule's requirements were not met because the motion for new trial was not received within ten days of mailing. See Guevara v. Nolot, No. 05-05-1238-CV, 2006 WL 1391287, at *2 (Tex. App.-Dallas May 23, 2006, no pet.) (mem. op.). In Guevara, the Dallas Court of Appeals found an appeal bond was timely filed under Rule 5 when the evidence showed it was mailed and received by the justice court clerk prior to the due date. Id. at *2. In doing so, the court noted that "the record contains evidence showing the appeal bond was delivered within ten days of the date of mailing and was received and signed for by [the clerk]." Id. at *2 (emphasis added). We note, however, that the Guevara court was not addressing whether Rule 5 requires receipt of a document within ten days from mailing or within ten days of the filing deadline; rather, the court was simply rejecting an argument that a court clerk's testimony that she did not recall receiving the appeal bond constituted evidence that it was not received. Id. Thus, the court's comment regarding delivery of the appeal bond "within ten days of mailing" was dicta.

The Garcias cite Stokes v. Aberdeen Ins. Co., 917 S.W.2d 267, 268 (Tex. 1996) and Williams v. Schneiber, 148 S.W.3d 581, 585-86 (Tex. App.-Fort Worth 2004, no pet.), noting that in finding documents timely filed under the mailbox rule, neither court relied on receipt within ten days of mailing. In Stokes, the supreme court found a motion for new trial was timely filed where it was sent by Federal Express to the court clerk (received the following day) and mailed the same day to the district judge. Stokes, 917 S.W.2d at 267. The court held it was not necessary for the clerk to receive the same piece of paper that the party mailed via United States mail to benefit from the mailbox rule. Id. at 268 ("We construe the words 'the same' in the rules to mean an original or any copy of the motion sufficient for filing.").

Similarly, in Schneiber, the Fort Worth Court of Appeals held that the mailbox rule was properly invoked if the clerk timely received a copy of the relevant pleading, even if it was not the one mailed. Schneiber, 148 S.W.3d at 585. In Schneiber, the plaintiff mailed an appeal bond on August 22, 2002 and faxed a copy on August 27, 2002, which was within the prescribed time period. Id. at 584. Although the clerk did not receive the appeal bond that was placed in the mail, the faxed copy was received. Id. at 584-85. Relying on Stokes, the Schneiber court held that the appellant invoked the mailbox rule by mailing the appeal bond on August 22 and ensuring the clerk received a faxed copy on August 27. Id. at 586.

We conclude that none of the cases cited directly address the question before us: whether the language in Rule 5 "not more than ten days tardily" refers to ten days from the date of mailing or ten days from the deadline for filing. The supreme court has stated that as a general rule, appellate courts should not dismiss an appeal for a procedural defect whenever an arguable interpretation of the appellate rules would preserve the appeal. Verburgt v. Dorner, 959 S.W.2d 615, 616 (Tex. 1997); see Warwick Towers Council v. Park Warwick , L.P., 244 S.W.3d 838, 839 (Tex. 2008); Schneiber, 148 S.W.3d at 585 (citing Verburgt, 959 S.W.2d at 616-17).

We have already determined that the Garcias established that they mailed their motion for new trial on April 20, 2007. The record contains evidence that it was received by the clerk's office by May 4, 2007--within ten days of the April 26, 2007 deadline. Applying a reasonable interpretation that preserves the Garcias' appeal, see Verburgt, 959 S.W.2d at 616, we hold that the "not more than ten days tardily" requirement in Rule 5 refers to ten days past the filing deadline referenced in the rule ("on or before the last day for filing same"). See Tex. R. Civ. P. 5. We therefore hold that the Garcias' motion for new trial was timely filed. Accordingly, the deadline for filing the notice of appeal was extended, and this appeal is properly before this Court. See Tex. R. App. P. 26.1(a). We overrule State Farm's motion to dismiss for lack of jurisdiction. We now turn to the merits of this appeal.

II. Background

State Farm issued a homeowners insurance policy, the standard HO-B policy, to the Garcias for their home in McAllen, Texas. The Garcias filed claims under their policy for water and mold damage on June 22, 2002. After inspections were performed, on December 10, 2002, State Farm paid the Garcias $26,779.42. The letter accompanying the payment indicated that the payment was for "water damage."

The Garcias filed suit against State Farm on October 4, 2004, alleging breach of contract, breach of the duty of good faith and fair dealing, violations of the Texas Insurance Code, and violations of the Texas Deceptive Trade Practices Act. See Tex. Bus. & Comm. Code Ann. § 17.50 (Vernon Supp. 2008); Tex. Ins. Code Ann. § 541.151 (Vernon Pamphlet 2008).⁽³⁾ The Garcias alleged claims against State Farm based on its failure to pay for mold damage and to fully pay for the water damage to their home.

State Farm filed two motions for summary judgment. The first motion purported to raise no-evidence and traditional grounds with respect to State Farm's liability. See Tex. R. Civ. P. 166a(c), (i). State Farm argued that there was no coverage for mold claims under the Texas Supreme Court's decision in Feiss v. State Farm Lloyds, 202 S.W.3d 744, 753 (Tex. 2006). Furthermore, State Farm argued that there was no evidence that the amount it had already paid was insufficient to make the repairs for water damage to the Garcias' home. It also challenged the Garcias' extra-contractual claims, arguing that because there was no coverage for the Garcias' claim for mold damage, there could be no liability for extra-contractual claims. Furthermore, it argued there was no evidence of any misrepresentation by State Farm, attaching deposition testimony from the Garcias to support this argument, and that there was no evidence that the Garcias had any complaint with how State Farm handled their claims, except that State Farm did not pay enough. Finally, the motion argued that the Garcias were not entitled to recover additional living expenses.

The second motion was a "conditional" motion--State Farm argued that the trial court need only address the second motion if the first were denied. This second motion challenged the Garcias' alleged damages for mental anguish, treble damages under the Insurance Code, and exemplary damages.⁽⁴⁾

The Garcias responded and objected to State Farm's summary judgment evidence. The Garcias submitted a report from their expert, Frank Zamora, that estimated costs for repair as $55,716.35. The Garcias also claimed they had to borrow $20,000, in addition to the amount already paid by State Farm, to continue repairs, but they had run out of money before the repairs were completed. State Farm, in turn, objected to the Garcias' summary judgment evidence.

The trial court sustained State Farm's objections, overruled the Garcias' objections, and granted both motions for summary judgment without specifying the basis of its rulings. This appeal ensued.

III. Summary Judgment Standards

The trial court granted both of State Farm's motions for summary judgment without stating the grounds for its rulings. Under these circumstances, we must affirm the judgment if any of the grounds alleged in the motions were meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005). The standard of review we apply is determined by whether the motion was brought on no-evidence or traditional grounds. See Tex. R. Civ. P. 166a(c), (i); see also Ortega v. City Nat'l Bank, 97 S.W.3d 765, 771 (Tex. App.-Corpus Christi 2003, no pet.) (op. on reh'g).

A no-evidence summary judgment is equivalent to a pretrial directed verdict, and we apply the same legal sufficiency standard on review. Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 582 (Tex. 2006); Ortega, 97 S.W.3d at 772. Once an appropriate motion for no-evidence summary judgment is filed, the burden of producing evidence is entirely on the non-movant; the movant has no burden to attach any evidence to the motion. Tex. R. Civ. P. 166a(i). We may not consider any evidence presented by the movant unless it creates a fact question. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004); Newkumet v. Allen, 230 S.W.3d 518, 521 (Tex. App.-Eastland 2007, no pet.).

To defeat a no-evidence motion for summary judgment, the non-movant must merely produce a scintilla of probative evidence to raise a genuine issue of material fact. Ortega, 97 S.W.3d at 772. "Less than a scintilla of evidence exists when the evidence is 'so weak as to do no more than create a mere surmise or suspicion of a fact.'" Id. (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). More than a scintilla exists when the evidence "rises to a level that would enable reasonable and fair-minded people to differ in their conclusions." Id. (citing Transp. Ins. Co. v. Moriel, 879 S.W.2d 10, 25 (Tex. 1994)). In determining whether the non-movant has met its burden, we review the evidence in the light most favorable to the non-movant, crediting such evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not. Tamez, 206 S.W.3d at 582; City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).

We review the trial court's granting of a traditional motion for summary judgment de novo. See Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003); Branton v. Wood, 100 S.W.3d 645, 646 (Tex. App.-Corpus Christi 2003, no pet.). When reviewing a traditional summary judgment, we must determine whether the movant met its burden to establish that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); Sw. Elec. Power Co. v. Grant, 73 S.W.3d 211, 215 (Tex. 2002); City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671, 678 (Tex. 1979). The movant bears the burden of proof in a traditional motion for summary judgment, and all doubts about the existence of a genuine issue of material fact are resolved against the movant. See Sw. Elec. Power Co., 73 S.W.3d at 215. We take as true all evidence favorable to the nonmovant, and we indulge every reasonable inference and resolve any doubts in the nonmovant's favor. Valence Operating Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005).

We will affirm a traditional summary judgment only if the record establishes that the movant has conclusively proved its defense as a matter of law or if the movant has negated at least one essential element of the plaintiff's cause of action. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004); Am. Tobacco Co. v. Grinnell, 951 S.W.2d 420, 425 (Tex. 1997); Clear Creek Basin, 589 S.W.2d at 678. A matter is conclusively established if reasonable people could not differ as to the conclusion to be drawn from the evidence. City of Keller, 168 S.W.3d at 816. Only when the movant has produced sufficient evidence to establish its right to summary judgment does the burden shift to the plaintiff to come forward with competent controverting evidence raising a genuine issue of material fact with regard to the element challenged by the defendant. Rhone-Poulenc, Inc. v. Steel, 997 S.W.2d 217, 223 (Tex. 1999); see Centeq Realty, Inc. v. Siegler, 899 S.W.2d 195, 197 (Tex. 1995).

When a party moves for summary judgment under both Rules 166a(c) and 166a(i) of the Texas Rules of Civil Procedure, we will first review the trial court's judgment under the standards of Rule 166a(i). Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). If the appellant fails to produce more than a scintilla of evidence under that burden, then there is no need to analyze whether appellee's summary judgment proof satisfies the less stringent Rule 166a(c) burden. Id.

IV. State Farm's No-Evidence Motion

By their fourth issue, the Garcias argue that the trial court erroneously granted State Farm's no-evidence motions for summary judgment. Before we address the merits of State Farm's no-evidence motions, however, we must first address the Garcias' argument that the no-evidence motions did not properly challenge elements of their claims. Texas Rule of Civil Procedure 166a(i) requires that a no-evidence motion for summary judgment "state the elements as to which there is no evidence." See Tex. R. Civ. P. 166a(i). The Garcias argue that because State Farm's motion did not satisfy this requirement, the entire motion must be treated as a traditional motion for summary judgment, which would place the summary judgment burden of proof on State Farm rather than on the Garcias. See Michael v. Dyke, 41 S.W.3d 746, 751-52 (Tex. App.-Corpus Christi 2001, no pet.).

The Garcias did not object in the trial court to the sufficiency of the no-evidence motion. The courts of appeals are split on whether the sufficiency of a motion under Rule 166a(i) may be raised for the first time on appeal. Compare Holloway v. Tex. Elec. Utility Constr., Ltd., No. 12-07-00427-CV, 2009 WL 765304, at *4 & n.2 (Tex. App.-Tyler Mar. 25, 2009, no pet. h.) (holding issue may be raised for the first time on appeal); Helm Cos. v. Shady Creek Housing Partners, Ltd., No. 01-05-00743, 2007 WL 2130186, at *6 n.7 (Tex. App.-Houston [1st Dist.] July 26, 2007, pet. denied) (mem. op.) (same); Bean v. Reynolds Realty Group, Inc., 192 S.W.3d 856, 859 (Tex. App.-Texarkana 2006, no pet.) (same); In re Estate of Swanson, 130 S.W.3d 144, 147 (Tex. App.-El Paso 2003, no pet.) (overruling prior decision in Walton v. Phillips Petroleum Co., 65 S.W.3d 262, 268 (Tex. App.-El Paso 2001, pet. denied) and holding that issue may be raised for the first time on appeal); and Cimarron Hydrocarbons Corp. v. Carpenter, 143 S.W.3d 560, (Tex. App.-Dallas 2004, pet. denied) (holding issue may be raised for first time on appeal); and Cuyler v. Minns, 60 S.W.3d 209, 212-14 (Tex. App.-Houston [14th Dist.] 2001, pet. denied) (same); and Callaghan Ranch Ltd. v. Killam, 53 S.W.3d 1, 3 (Tex. App.-San Antonio 2000, pet. denied) (same); with Barnes v. Sulak, No. 03-01-00159-CV, 2002 WL 1804912, at *9 n.4 (Tex. App.-Austin Aug. 08, 2002, no pet.) (not designated for publication) (holding objection must be raised in the trial court); Williams v. Bank One, Tex., N.A., 15 S.W.3d 110, 117 (Tex. App.-Waco 1999, no pet.) (same); and Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 194-95 (Tex. App.-Amarillo 1999, pet. denied) (same). We have never been required to decide this issue, although we have mentioned it in prior decisions. See, e.g., Los Cucos Mexican Café, Inc. v. Sanchez, 2007 WL 1288820, at *5 n.5 (Tex. App.-Corpus Christi May 3, 2007, no pet.) (mem. op.); Galvan v. Tex. Low Cost Ins. Agency, No. 13-00-593-CV, 2002 WL 34249760, at *3 n.2 (Tex. App.-Corpus Christi May 16, 2002, no pet.) (not designated for publication).

Today, we join the majority of Texas courts, which have held that the lack of specificity of a motion for no-evidence summary judgment may be raised for the first time on appeal. The supreme court has held that a nonmovant need not object to the legal sufficiency of a traditional summary judgment and may raise that argument for the first time on appeal. See McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337, 342 (Tex. 1993) ("Even if the non-movant fails to except or respond, if the grounds for summary judgment are not expressly presented in the motion for summary judgment itself, the motion is legally insufficient as a matter of law."). We see no reason why the rule should be different when the motion challenged is filed under Rule 166a(i) on no-evidence grounds. See Cimarron Hydrocarbons Corp., 143 S.W.3d at 563. Accordingly, we will review the Garcias' argument that the no-evidence motion failed to state the specific elements of their claims that State Farm sought to challenge.

We agree with the Garcias with respect to State Farm's first motion. State Farm's first motion for summary judgment stated that it was being brought under both subsections (c) and (i) of Texas Rule of Civil Procedure 166a. However, State Farm's only arguments on no-evidence grounds were that: (1) there was no evidence that it owed the Garcias more than it already paid; (2) there was no evidence that the Garcias had any complaint with the way State Farm handled their claims, other than that State Farm did not pay enough; and (3) there was no evidence of any misrepresentations by State Farm.

On appeal, State Farm claims that these arguments were sufficient to attack the Garcias' breach of contract claims and all of their "extra-contractual" claims. State Farm points out that the Garcias have not challenged the trial court's rulings with respect to the mold claims, which the supreme court has held are not covered losses under the policy. See Feiss, 202 S.W.3d at 753. With respect to the water damage claims, State Farm argues that there is no evidence to show that it owed the Garcias more than the $26,779.42 it already paid, and this is sufficient to defeat all the Garcias' claims.

However, a motion for no-evidence summary judgment that only generally attacks a factual theory, without specifying the elements of the claims being attacked, is insufficient to support a no-evidence summary judgment. See Killam, 53 S.W.3d at 3-4. Rule 166a(i) is clear in its requirement that the motion "must" state specifically the elements of the claim challenged, and the comment to the rule further provides that the "motion must be specific in challenging the evidentiary support for an element of a claim or defense; paragraph (i) does not authorize conclusory motions or general no-evidence challenges to an opponent's case." Tex. R. Civ. P. 166a cmt. Here, State Farm's no-evidence motion did not state specifically which elements of the claims were being challenged, but rather, attacked one of the Garcias' factual theories without specifying which elements the theory allegedly supported. Accordingly, we will treat these arguments as traditional summary judgment grounds. See Michael, 41 S.W.3d at 751-52.⁽⁵⁾

The second, conditional motion for summary judgment, however, is a different story. First, State Farm's second motion clearly stated that there was no evidence that the Garcias suffered mental anguish. It stated that "mental anguish damages are limited to situations where the handling of a claim created anguish significant enough to seriously disrupt the insured's life." State Farm also argued that there was no evidence that its conduct caused the Garcias any such mental anguish.⁽⁶⁾ See Tex. Bus. & Comm. Code Ann. § 17.50(a) (Vernon Supp. 2008) (allowing mental anguish damages for violations of DTPA and for violations of chapter 541 of the Texas Insurance Code); see also Berry v. Covarrubias, No. 14-03-01137-CV, 2004 WL 1631117, at *8 (Tex. App.-Houston [14th Dist.] 2004, no pet.) (mem. op.) ("Berry presented no evidence of mental anguish. Thus, putting aside any admission on Berry's behalf, the trial court's ruling was correct on no-evidence grounds.").

Next, State Farm's second motion argued that the Garcias would only be entitled to statutory treble damages under the Texas Insurance Code if there were evidence that State Farm "knowingly" violated a statutory provision. See Tex. Ins. Code Ann. § 541.152 (Vernon Pamphlet 2008). State Farm argued that there was no evidence that it had acted knowingly; thus, the Garcias are not entitled to treble damages under the insurance code. Finally, State Farm argued that there was no evidence of malice, which State Farm argues would be required to support a claim for punitive damages. See Tex. Civ. Prac. & Rem. Code Ann. § 41.003(a)(2) (Vernon 2008).

Although the Garcias' appellate brief points to the evidence they submitted in response to the second motion for summary judgment, they do not cite a single case or explain how this evidence supports their claims for mental anguish, treble damages under the insurance code, or punitive damages. See Tex. R. App. P. 38.1(i). Accordingly, nothing is presented for our review.

In sum, we sustain the Garcias' fourth issue with respect to the no-evidence arguments in State Farm's first motion. However, we affirm the trial court's judgment that the Garcias are not entitled to recover mental anguish, treble damages for knowing violations of the insurance code,⁽⁷⁾ or exemplary damages for their extra-contractual claims based on malicious conduct. See Tex. R. App. P. 38.1(i); Anderson v. Long, 118 S.W.3d 806, 811 (Tex. App.-Fort Worth 2003, no pet.).⁽⁸⁾

V. State Farm's Traditional Motion

By their third and fourth issues, the Garcias argue that State Farm failed to meet its burden to show that there are no genuine issues of material fact with respect to one or more elements of their claims, and that they proffered sufficient evidence to defeat the traditional motion. As part of these arguments, the Garcias also argue that the traditional motion did not negate any elements of their claims to the extent that these were based on State Farm's failure to pay for all their water damage, as opposed to mold damage.

First, the Garcias argue that the traditional motion was limited to their mold claims, which State Farm argued were precluded by the Texas Supreme Court's decision in Feiss and which the Garcias do not challenge on appeal. 202 S.W.3d at 753. The Garcias argue that because State Farm's traditional motion for summary judgment was based solely on the Feiss decision, the traditional motion has no effect on their claims for water damage to the home.

It is true that the motion for summary judgment argued that the Garcias' breach of contract claim was barred because mold damage is not covered by the policy, relying on Feiss. The Garcias, however, have argued that State Farm's no-evidence arguments should be treated as traditional grounds for summary judgment. Accordingly, we will proceed in the manner suggested by the Garcias. See Michael, 41 S.W.3d at 751-52.

On appeal, State Farm argues that the Garcias' evidence fails to raise a fact issue because it does not demonstrate the amount that the Garcias actually spent on repairs, and more importantly, does not demonstrate that the Garcias spent more than the $26,779.42 already paid by State Farm. However, because we must treat State Farm's argument as raising a traditional ground, State Farm bore the initial burden to demonstrate that no genuine issue of material fact exists with respect to the Garcias' breach of contract claim. Mason, 143 S.W.3d at 798; Grinnell, 951 S.W.2d at 425; Clear Creek Basin, 589 S.W.2d at 678. State Farm has not done so.

State Farm attached the insurance policy to its motion for summary judgment. It provides:

We will pay only the actual cash value of the damaged building structure(s) until repair or replacement is completed. . . . Upon completion of repairs or replacement, we will pay the additional amount claimed under replacement cost coverage, but our payment will not exceed the smallest of the following:

(1) the limit of liability under the policy applicable to the damaged or destroyed building structure(s);

(2) the cost to repair or replace that part of the building structure(s) damaged, with material of like kind and quality and for the same use and occupancy on the same premises; or

(3) the amount actually and necessarily spent on repair or replace the damaged building structure(s).

(Emphasis added). State Farm argues that its liability is limited to the amount the Garcias "actually and necessarily" spent to repair their home, and there is no evidence that the Garcias spent more than it already paid to repair the water damage. State Farm, however, incorrectly assumes that its liability is limited to the amount the Garcias actually spent.

The contractual provision urged by State Farm as a limit of its liability only applies "[u]pon completion of repairs or replacement." State Farm did not present any evidence demonstrating that the repairs have been completed. In fact, State Farm's evidence included Ramon Garcia's deposition testimony, wherein he stated that the Garcias had not yet replaced the floors in their house because they ran out of money. See Binur, 135 SW.3d at 651 (providing that evidence attached to a no-evidence motion may be considered if it creates a fact issue). He testified that there was carpet that still needed to be replaced. Viewing the evidence in the light most favorable to the Garcias, this evidence shows that the repairs for the water damage to their home were not completed. Because the evidence shows that the Garcias had not completed the repairs to their home, it is impossible to determine the "amount actually and necessarily spent." Thus, State Farm's motion for summary judgment was based on a flawed premise. Accordingly, we reverse the trial court's summary judgment on the Garcias' breach of contract claim based on State Farm's failure to pay for water damage.

Second, State Farm argued that the Garcias' "extra-contractual" claims failed because there was no coverage. State Farm argued that to establish a breach of the duty of good faith and fair dealing, the Garcias had to prove that State Farm knew or should have known its liability was reasonably clear and that despite clear liability, it failed to attempt to effectuate a prompt, fair, and equitable settlement of the claim. See Universe Life Ins. Co. v. Giles, 950 S.W.2d 48, 56 (Tex. 1997). State Farm argued that there can be no bad faith for failure to pay a claim that is not actually covered. See Republic Ins. Co. v. Stoker, 903 S.W.2d 338, 341 (Tex. 1995). We agree with the Garcias that State Farm's motion for summary judgment limited this argument to the Garcias' mold claims. This portion of the motion for summary judgment specifically argued that "[t]he Feiss ruling and terms of the policy excluding coverage for mold and [additional living expenses] establish that State Farm's liability was never reasonably clear." State Farm did not assert that its liability never became reasonably clear because it paid all it owed for water damage. Accordingly, the trial court's summary judgment was in error to the extent that it was granted on the Garcias' bad faith claims relating to the failure to pay for water damage.

State Farm likewise argued that when bad faith, insurance code, and DTPA claims "are premised on the same set of facts, the statutory claims depend on the existence of a valid bad faith claim." State Farm reasoned that because Feiss compels the conclusion that State Farm was not liable for a covered claim, the Garcias' extra-contractual claims necessarily fail along with their breach of contract claims. Again, we agree with the Garcias that this argument was limited to the Garcias' mold claims. Accordingly, the trial court's summary judgment was in error to the extent that it was granted on the Garcias' insurance code and DTPA claims relating to the failure to pay for water damage.

Third, State Farm presented testimony from the Garcias that they did not "know of any complaints" they had with respect to State Farm's handling of their claims "other than that . . . [they] haven't been paid enough." This argument was not limited to the Garcias' mold claims, and we find that the Garcias have not preserved their arguments against this ground for the summary judgment. As we noted above, although the Garcias' appellate brief points to the evidence they submitted in response to the motion for summary judgment, they do not cite a single case or explain how this evidence supports their extra-contractual claims, to the extent those are based on something other than State Farm's failure to pay for water damage. Additionally, the Garcias' brief does not explain their testimony that they did not know of any other complaints with State Farm's handling of the claims. See Tex. R. App. P. 38.1(i). Accordingly, we affirm the summary judgment on the Garcias' extra-contractual claims, to the extent those are based on something other than State Farm's failure to pay for all the water damage, as that is the extent of State Farm's argument to the trial court.

Furthermore, State Farm also argued that there was no evidence of any extra-contractual claims based on misrepresentations by State Farm, citing testimony from Anita Garcia to that effect and testimony from Ramon Garcia that he did not talk to anyone from State Farm. The Garcias alleged several causes of action based on misrepresentations by State Farm. Tex. Bus. & Comm. Code Ann. § 17.50(a)(1), (4); id. § 17.46(b)(5), (7), (12), (24) (Vernon 2008); Tex. Ins. Code Ann. § 541.151 (Vernon Pamphlet 2008); id. § 541.051(1) (Vernon Pamphlet 2008); id. § 541.060(a)(1) (Vernon Pamphlet 2008); id. § 541.061 (Vernon Pamphlet 2008). On appeal, the Garcias do not explain their testimony, cite any cases, or point to any misrepresentations by State Farm. Accordingly, we affirm the summary judgment on the Garcias' statutory misrepresentation claims. Tex. R. App. P. 38.1(i).

Fourth, State Farm argued that because "coverage is not afforded pursuant to the terms and conditions of the policy," the Garcias' insurance code claims fail as a matter of law. With respect to the mold claims, State Farm is correct, and the Garcias have not challenged that ruling on appeal. To the extent these general statements could be construed as challenging State Farm's liability for the water damage, we have already rejected State Farm's argument that they have no further liability under the policy. Thus, to the extent the trial court granted summary judgment on the Garcias' insurance code claims based on this reasoning, we reverse the summary judgment on the insurance code claims.

Finally, State Farm argued that the Garcias did not incur any "additional living expenses," an element of their damages, because the house was inhabitable during the repairs, and the Garcias' daughter, Melinda Guerra, and her family were living in the residence during the entire time. State Farm presented testimony from Ramon Garcia to support this argument. The Garcias have not addressed this argument on appeal. See Tex R. App. P. 38.1(i). Therefore, we affirm the trial court's judgment to the extent it holds that the Garcias are not entitled to additional living expenses as an element of their damages.

V. Conclusion We affirm, in part, and reverse and remand, in part. Because the Garcias do not dispute that mold is not a covered loss under their homeowners policy, we affirm the summary judgment dismissing the Garcias' mold claims. We also affirm the trial court's summary judgment on the Garcias' claims for (1) mental anguish damages; (2) treble damages; (3) exemplary damages; and (4) damages for additional living expenses under the policy. We likewise affirm the trial court's summary judgment on the Garcias' insurance code and DTPA claims, to the extent those are based on "something other than State Farm's failure to pay for water damage" or are based on misrepresentations by State Farm. However, we reverse the trial court's judgment on the Garcias' claims for breach of contract and breach of the duty of good faith and fair dealing relating to water damage.

To further summarize, on remand, the claims still available to the Garcias are (1) breach of contract and breach of the duty of good faith and fair dealing, and (2) violations of the insurance code and DTPA, to the extent those are based on State Farm's failure to pay for all the water damage to the Garcias' home. The damages available for these claims will not include: (1) mental anguish damages; (2) treble damages under the Insurance Code for conduct committed "knowingly," (3) exemplary damages based on malicious conduct, and (4) additional living expenses under the policy.

________________________________

GINA M. BENAVIDES,

Justice

Concurring Opinion by

Justice Linda Reyna Yañez.

Opinion delivered and filed this

the 30th day of April, 2009.

1. As this is a memorandum opinion, and the parties are familiar with the facts, we will only recite those facts necessary to explain the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

2. We note that in their original petition, appellants sued several defendants individually, including Julie Merkt, Thomas C. Van Dyke, Jr., Doug Cook, and Andy's Refrigeration. The docket sheet reflects that Merkt, Van Dyke, Jr., and Cook were served with citation, but does not reflect that they answered. However, the record contains appellants' First Amended Petition, in which only State Farm Lloyds and Andy's Refrigeration are named as defendants. "When a party's name is omitted from an amended pleading, he is as effectively dismissed as where a formal order of dismissal is entered." Randolph v. Jackson Walker, L.L.P., 29 S.W.3d 271, 274 (Tex. App.-Houston [14th Dist.] 2000, pet. denied); see Tex. R. Civ. P. 65.

3. The Garcias initially pleaded violations of former Texas Revised Civil Statutes article 21.21, which was repealed and codified without substantive change. See Act of May 10, 2001, 77th Leg., R.S., ch. 290, § 1, 2001 Tex. Gen. Laws 548, 548-51, repealed and recodified by Act of May 22, 2003, 78th Leg ., R.S., ch. 1674 §§ 2, 26, 2003 Tex. Gen. Laws 3611, 2659-61 (current versions at Tex. Ins. Code Ann. §§ 541.051, 541.056 (Vernon Pamphlet 2008). The parties' briefs refer to the insurance code, and so will we.

4. The two motions raised numerous issues, in many instances without being entirely clear. The vague and piecemeal nature of State Farm's motions for summary judgment have resulted in an opinion that is, to a degree, necessarily disjointed.

5. Other courts of appeals have held that the appropriate inquiry is whether the no-evidence motion provides "fair notice" of the elements for which there was no evidence. See Roth v. FFP Operating Partners, L.P., 994 S.W.2d 190, 194 (Tex. App.-Amarillo 1999, pet. denied); Cf. In re Estate of Hall, No. 05-98-01929-CV, 2001 WL 753795, at *3 (Tex. App.-Dallas July 05, 2001, no pet.) (not designated for publication) (holding that a motion that failed to state the elements of the claims challenged did not provide "fair notice"). Recently, in dicta, this Court implied as much. See Villarreal v. Del Mar College, No. 13-07-00119-CV, 2009 WL 781750, at *3 & n. 21, *5 n. 45 (Tex. App.-Corpus Christi Mar. 26, 2009, no pet. h.) (mem. op.) (citing Waite v. Woodward, Hall & Primm, P.C., 137 S.W.3d 277, 281 (Tex. App.-Houston [1st Dist.] 2004, no pet.) (holding that by failing to reference Rule 166a(c) or to cite any evidence to establish claim as a matter of law, the plaintiff's motion failed to provide fair notice that motion was brought on traditional grounds)). However, in Michael v. Dyke, this Court rejected a "fair notice" standard when construing a no-evidence motion for summary judgment. 41 S.W.3d 746, 750-51 n. 3 (Tex. App.-Corpus Christi 2001, no pet.); see also Hansler v. Nueces County, No. 13-99-583-CV, 2001 WL 997350, at *3 (Tex. App.-Corpus Christi May 3, 2001, no pet.) (contrasting, in dicta, the "fair notice" standard under Rule 166a(c) with subsection (i)'s specificity requirement). We reaffirm that holding today, and we again hold that the "fair notice" standard does not apply to Rule 166a(i)'s requirement that the motion state specifically the elements for which there is no evidence. To the extent that Villarreal suggests otherwise, we note that the issue was not raised by the appellant, and our statements were dicta. See Villarreal, 2009 WL 781750, at *5 n. 45.

Generally, "Texas follows a 'fair notice' standard for pleading, which looks to whether the opposing party can ascertain from the pleading the nature and basic issues of the controversy and what testimony will be relevant." Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000). In other words, even though the pleading is not precise, if the responding party understood the allegations or the court, on review, can decipher the allegations, the pleading provided "fair notice." See id.; see, e.g., 1994 Land Fund II v. Ramur, Inc., No. 05-98-00074-CV, 2001 WL 92696, at *6 (Tex. App.-Dallas Feb. 05, 2001, no pet.) (not designated for publication) (reviewing factual assertions in no-evidence motion for summary judgment and assigning assertions to elements of non-movant's claims by applying "fair notice" standard).

However, Rule 166a(i) and the comments thereto make clear that, with respect to the elements of the non-movant's claims being challenged, the movant must do more than provide "fair notice"--the movant "must" state the specific elements for which there is no evidence. Tex. R. Civ. P. 166a(i) & cmt. Even though by applying a "fair notice" standard, this Court could make an educated guess as to the elements being challenged, we decline to do so because: (1) the rule is clear as to its requirements and uses the mandatory term "must," (2) it is relatively easy to state the elements of a claim for which there is no evidence, and (3) a proper motion shifts the burden to the non-movant to come forward with evidence. Applying a "fair notice" standard would place too great a burden on the non-movant and would be clearly contrary to the express language of Rule 166a(i). See Holloway v. Tex. Elec. Utility Constr., Ltd., No. 12-07-00427-CV, 2009 WL 765304, at *5 (Tex. App.-Tyler Mar. 25, 2009, no pet. h.); Fieldtech Avionics & Instruments, Inc. v. Component Control.Com, Inc., 262 S.W.3d 813, 824 n.4 (Tex. App.-Fort Worth 2008, no pet.); Mott v. Red's Safe & Lock Servs., Inc., 249 S.W.3d 90, 98 (Tex. App.-Houston [1st Dist.] 2007, no pet.); Michael, 41 S.W.3d at 751 n.3; Callaghan Ranch Ltd. v. Killam, 53 S.W.3d 1, 3 (Tex. App.-San Antonio 2000, pet. denied).

6. State Farm also presented evidence to support its no-evidence arguments. However, we cannot consider evidence submitted in support of a no-evidence motion for summary judgment, except to the extent that evidence raises a fact issue in the Garcias' favor. Binur v. Jacobo, 135 S.W.3d 646, 651 (Tex. 2004).

7. We note that the DTPA allows treble damages if the consumer proves that the conduct was committed "intentionally." See Tex. Bus. & Comm. Code Ann. § 17.50(b)(1) (Vernon 2002). The Garcias, however, did not plead they were entitled to treble damages for State Farm's intentional conduct, but rather, limited their pleading to knowing violations. The Garcias, likewise, did not argue to the trial court that State Farm's conduct was intentional. See Tex. R. Civ. P. 166a(c) ("Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal.").

8. The Garcias' second issue argues that the trial court erroneously sustained State Farm's objections to their summary judgment evidence. However, we need not address the Garcias' second issue in order to affirm the summary judgment for failure to adequately brief how that evidence, if properly considered, supported their claims. See Tex. R. App. P. 47.1.

On Gibraltar you are never far from a reminder that this is a military asset.

2008-05-23T04:32:00.000-07:00

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2008-05-23T04:06:00.000-07:00

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Dang the Texas Tort Tycoons Spent Millions in the 2000 Elections ???Why would they?

2008-05-09T10:23:00.000-07:00

Texans for Lawsuit Reform: How the Texas Tort Tycoons Spent Millions in the 2000 Elections
IV. Who Did TLR�s PAC Finance?
PACs2000

What did TLR do with the PAC money that it raised? TLR spent almost three-quarters of this money on just two Republican Senate candidates. Nonetheless, it had enough money left over to buy access to most legislatiors and to finance some state appeals judge candidates.

A. Two Republicans Got 73 Percent of the Money
Remarkably, just two non-incumbent Republican Senate candidates�Todd Staples and Bob Deuell�accounted for 73 percent of the $1.4 million that TLR�s PAC spent in the 2000 election cycle.

Under the Radar:
TLR Aid To Staples
in Last Week of Campaign Check Date Check Amount
11/7/00
$10,000
11/2/00
$15,515
11/2/00
$40,000
11/1/00
$177,386
TOTAL
$242,901

Former Rep. Todd Staples won the East Texas Senate seat vacated by vice-squad-stung Sen. Drew Nixon. TLR spent an extraordinary $535,082 (39 percent of its total) to help Staples beat trial lawyer David Fisher in Texas� most expensive legislative race. With TLR providing 16 percent of his total war chest, Staples won 61 percent of the vote. Staples received almost half of his TLR cash ($242,901) in the last week of the campaign. This hid the extent of Staples� dependence on this special-interest group until after the election. Under Texas elections law, contributions received this late are poorly disclosed until January of 2001.

A recent book on Texas political money puts the $535,082 that Staples took from TLR into some perspective. Commenting on another state senator who got $100,000 from Richard Weekley�s TLR PAC, lobbyist A.R. �Babe� Schwartz said, �Hell, that state senator doesn�t have a vote anymore�Weekley has a vote.� Schwartz added, �Anybody who accepts $100,000 from a PAC belongs, body and soul, to that PAC. And I would defy anybody to find me a vote for any motion or committee action, where that person wasn�t a slave to that $100,000 contribution.�22

A Republican PAC Recipient's
Party TLR
Contributions % No. of
Recipients Average
Contribution
Democrat
$111,293

8%

25

$4,452
Republican
$1,266,156

92%

97

$13,053
TOTAL
$1,377,449

100%

122

$11,291

TLR�s other favorite candidate was Bob Deuell, who made a failed bid to unseat Sen. David Cain, D-Dallas. Cain retained his seat with 53 percent of the vote despite the fact that TLR gave $490,434 to his opponent (35 percent of TLR�s total PAC expenditures). TLR accounted for one out of every three dollars that Deuell raised.

All in all, 97 Republicans walked away with 92 percent ($1,266,156) of TLR�s 2000 PAC money; the remaining $111,293 went to 25 Democrats. Significantly, one third of the money that TLR spent on Democratic candidates went to new Senator Leticia Van de Putte�who had no Republican challenger in her bid for the Senate seat vacated by former Senator Greg Luna. TLR moved $40,042 to Van de Putte prior to the March 2000 Democratic primary. Van de Putte won 54 percent of the vote in the Democratic primary, defeating David McQuade Leibowitz, a trial lawyer who specializes in toxic torts. Few voters in the primary could have known the extent of Van de Putte�s TLR debt: she received 37 percent of this money just seven days before the day of the primary election.

Politicians Who Got the Most
TLR Money in 2000 Name Party
Sum
Office Status Outcome
Todd Staples
R

$535,082
S3
O

W
Bob Deuell
R

$490,434
S2
C

L
Leticia Van de Putte
D

$40,042
S26
O

W
Paul Woodard
R

$32,730
H11
O

L
Wayne Christian
R

$27,500
H9
I

W
Al Gonzales
R

$25,000
SC
I

W
Jill Warren
R

$11,660
H48
O

L
John Whitmire
D

$10,000
S15
I

W
David Gaultney
R

$10,000
9thCA
O

W
John Cornyn
R

$10,000
AG
I

NA
Tom Ramsay
D

$10,000
H2
I

W
Betty Brown
R

$10,000
H4
I

W
Rick Perry
R

$7,500
Gov
O

NA
Rob Junell
D

$7,500
H72
I

W
Nathan Hecht
R

$7,000
SC
I

W
Rebecca Simmons
R

$5,000
4thCA
C

L
Ken Armbrister
D

$5,000
S18
I

NA
David Sibley
R

$5,000
S22
I

NA
Judith Zaffirini
D

$5,000
S21
I

W
Priscilla Owen
R

$5,000
SC
I

W
Robby Cook
D

$5,000
H28
I

W
Robert Duncan
R

$5,000
S28
I

NA
Teel Bivins
R

$5,000
S31
I

NA
Bill Ratliff
R

$5,000
S1
I

NA
Status: I=Incumbent; C=Challenger; O=Open Seat.
Outcome: W=Winner; L=Loser; NA=Incumbent who did not face a 2000 election.

The two last candidates who received more than $25,000 in TLR money were both Republicans running contested House races. Republican Paul Woodward, Jr., got $32,730 from TLR for his failed bid to replace Todd Staples in the House. Woodward was defeated by Chuck Hopson, a Democrat who won 53 percent of the vote. TLR also gave $27,500 to incumbent Rep. Wayne Christian to fend off Democratic challenger Joe Evans. Christian prevailed with 55 percent of the vote.

B. Most Politicians Got Some of the Left Overs
Although just two Republican Senate candidates received 73 percent of TLR�s 2000 PAC money, TLR had enough money left over to buy access to most of Texas� statewide and legislative incumbents (including some senators and statewide candidates who were not up for reelection in 2000).23 More than 100 Texas incumbents received a check from TLR. The average size of these checks was $2,201, enough to assure access to most Texas legislators.

TLR Buys Access to Most Incumbents Recipient's
Status TLR
Contributions % No. of
Recipients Average
Contribution
Incumbent
$235,500

17%

107

$2,201
Challenger
$502,934

37%

7

$71,848
Open Seat
$639,015

46%

8

$79,877
TOTAL:
$1,377,449

100%

122

AVG: $11,291

C. TLR Targets the Courts
Not content to merely invest in lawmakers, TLR also bankrolled candidates who were seeking to interpret Texas laws. In the past, TLR�s judicial focus has been on electing Texas Supreme Court justices. In the 2000 election cycle, TLR began to act on a 1998 pledge to bankroll candidates for lower state courts, too. All of TLR�s judicial contributions benefited Republicans.

TLR contributed $54,000 to judicial candidates in the 2000 cycle, with 69 percent of this money ($37,000) going to the three incumbent Supreme Court justices who were up for election. TLR moved most of this money prior to the March primaries. The two justices who received the most TLR judicial money�Al Gonzales and Nathan Hecht�faced relatively more competition in the primary than in the general election.24 On the eve of the primary, TLR made a special fundraising appeal that said Gonzales was vulnerable because, �as the newest member of the Court, [he] is not well known to the electorate.� Gonzales won with 58 percent of the primary vote, thanks in part to $25,000 in direct TLR money and $30,000 more that he collected in response to TLR�s urgent fundraising appeal.25

TLR's $54,000 Bench Press Candidate State Court Sought TLR Contribution
Al Gonzales Supreme Court
$25,000
David Gaultney 9th Court of Appeals (Beaumont)
$10,000
Nathan Hecht Supreme Court
$7,000
Priscilla Owen Supreme Court
$5,000
Rebecca Simmons 4th Court of Appeals (San Antonio)
$5,000
Sarah Duncan 4th Court of Appeals (San Antonio)
$1,000
Paul Green 4th Court of Appeals (San Antonio)
$1,000
TOTAL:
$54,000

TLR also invested $17,000 in four GOP candidates for lower appellate court benches. Most of this money ($10,000) went to David Gaultney, a Mehaffy & Webber defense attorney who won an open seat on Beaumont�s Ninth Court of Appeals with 54 percent of the vote. TLR gave the rest of this appellate court money to three candidates for seats on San Antonio�s Fourth Court of Appeals. Most of this money ($5,000) went to Akin Gump litigator Rebecca Simmons� failed bid to topple incumbent Democrat Alma Lopez. Lopez retained her seat with just 52 percent of the vote. TLR also contributed $1,000 apiece to incumbent Fourth Court of Appeals Justices Sarah Duncan and Paul Green, who narrowly prevailed over Democratic challengers.

It would be ironic that ignorant people that can be swayed by emotion and don't have the capacity to evaluate facts could take away everything .......

2008-02-15T06:07:00.000-08:00

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Local
South Texas called a judicial hellhole for 6th straight year
Report poorly researched, lawyer Thomas Henry says

By Mary Ann Cavazos (Contact)
Originally published 03:17 a.m., December 19, 2007
Updated 03:17 a.m., December 19, 2007

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South Texas is a "Judicial Hellhole" -- at least according to a Washington, D.C.-based organization that ranked the region second among the nation's most unfair civil court jurisdictions.

It is the sixth straight year the American Tort Reform Association listed the Rio Grande Valley and Gulf Coast in its annual report, released Tuesday.

The nonprofit corporation also named five other places including South Florida, which took the top spot; Cook County, Ill.; Clark County, Nev.; Atlantic County, N.J.; and the entire state of West Virginia as judicial hellholes.

According to the association's Web site, the report highlights areas of the country where judges apply the law in "an inequitable manner, generally against defendants in civil lawsuits."

Most references to civil cases in the report involving losses for corporate defendants are broad and don't include specific details. The report's footnotes cite newspaper articles, editorials, other media reports and case filings as some of its sources.

South Texas is a place where many personal injury attorneys forum shop, which refers to when lawyers try to land their cases in the courts of judges more likely to rule in their favor, the report said.

Corpus Christi Bar Association President Rebecca Kieschnick was out of town Tuesday and unavailable for comment. In previous years, local bar officials have said the report should be viewed more as the group's opinion than as an independent report.

One section of the report chastised Corpus Christi attorney Thomas J. Henry, who in September launched a series of TV spots that claim Mauricio Celis is not licensed to practice law and invited his former clients to seek refunds for attorney fees.

While the report mostly provided an unflattering description of personal injury attorneys in general, of Henry it asked, "What do you call someone who chases the ambulance chaser?"

Henry said the report, which has sarcastic overtones, should not be taken seriously.

"I would say they humiliated themselves with the lack of professionalism," Henry said, adding he thought it also was poorly researched.

Henry sued Celis and his Corpus Christi-based firm CGT Law Group International on behalf of one of the firm's former clients.

Celis, who has several pending lawsuits against him in Texas, faces four felony charges in Nueces County including falsely holding oneself out as an attorney, theft, perjury and impersonating a peace officer.

"All they're doing is taking a potshot at a real lawyer when what they should be doing is focusing on the root of the problem," Henry said.

Connie Scott, executive director of Bay Area Citizens Against Lawsuit Abuse, said the report sheds light on frivolous lawsuits and can be an aid to help reform the civil court system.

"Any reference to Texas in this report is a reminder to all of us that we still have some work to do," Scott said. "I think it's a continual process. We all want a fair system."

The 2007 Judicial Hellholes

1. South Florida

2. Rio Grande Valley and Texas Gulf Coast

3. Cook County, Ill.

4. West Virginia

5. Clark County, Nev. (Las Vegas)

6. Atlantic County, N.J. (Atlantic City)

Source: American Tort Reform Association

To view the American Tort Reform Association’s full 2007 “Judicial Hellholes” report visit www.atra.org.

Contact Mary Ann Cavazos at 886-3623 or cavazosm@caller.com

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Post 1 December 19, 2007 at 3:54 a.m.

Corporate Propoganda. If there were certain places where I was more likely to be held accountable for my many transgressions, I would call those places "Hell" too.
(Suggest removal)

Post 2 December 19, 2007 at 6:27 a.m.

This type of propaganda for the corporations should not be repeated in the Caller Times or any newspaper. If they want to voice such an opinion, they should buy ads. It's all part of a conspiracy to ruin juries before there is a trial. This is part of the "lawsuit abuse" lies funded by insurance companies
(Suggest removal)

Post 3 December 19, 2007 at 6:52 a.m.

I agree with Post 3. Whenever anything doesn't go someone's way in this area or they get ANY type of injury, the first thing out of their mouth is "we are looking for an attorney". Folks are always asking someone "Are you going to sue?". Kids tell teachers "I'll just sue you". Have lawsuits become the easy way to make a living here? Seems like it.
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Post 4 December 19, 2007 at 7:23 a.m.

Of course Tom Henry is going to attack the credibility of this report.
He and the Bonillas have been ripping off trusting citizens for decades. And how does he justify it? FREE TURKEYS!
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Post 5 December 19, 2007 at 7:27 a.m.

The turkey's are the ones that put out this drivel and the foolish ones who eat it up like manna from heaven.
For decades insurance companies have blamed the victims instead of paying claims promptly.
(Suggest removal)

Post 6 December 19, 2007 at 7:36 a.m.

This is why many business owners, like myself, long ago left Corpus Christi. This city is full of losers and attorney's that will represent them.
(Suggest removal)

Post 7 December 19, 2007 at 7:50 a.m.

"I would say they humiliated themselves with the lack of professionalism," Henry said, adding he thought it also was poorly researched.
You mean a lack of professionalism like putting ads on TV saying "This guy is a fraud, just thought I'd tell you...also, if you want to sue the hell out of him give me a call so I can take a percentage"? Celis and Henry are both LOSERS. Sharks and lawyers are the only 2 things on Earth that will eat their own guts if you cut the stomach open....
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Post 8 December 19, 2007 at 8:09 a.m.

I challenge any of you who will post criticism of our judicial system and spew your "frivolous lawsuit" propoganda to cite one single instance of a "frivolous lawsuit" resulting in a big verdict in Nueces County, Texas. And don't throw out the usual nonsense about what you heard or what one of your fellow CALA buddies told you. Give ONE specific example.
(Suggest removal)

Post 9 December 19, 2007 at 8:12 a.m.

Post 7, many business owners do very well in Corpus Christi. Maybe you just didn't have what it takes.
(Suggest removal)

Post 10 December 19, 2007 at 8:37 a.m.

Post 7, the city is not "full of losers." We have room for one more now that you're gone.
(Suggest removal)

Post 11 December 19, 2007 at 8:50 a.m.

Post 9
It is not an accident that CC has a reputation for being the most litigious city in Texas. Plaintiff's attorneys move here for that very reason! There have been, and continue to be, frivolous lawsuits that have DESTROYED professional reputations and careers. Certain institutions in this town are veritable ATM machines for people who don't want to work and want to have a job for life. It happens on a regular basis and has been going on for many years.
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Post 12 December 19, 2007 at 8:54 a.m.

Post 13, just as I thought. Not one specific example.
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Post 13 December 19, 2007 at 8:59 a.m.

What would a group from D.C. have to gai by putting out this report. Most likely nothing. So is it true? And why has it been six years in a row?
(Suggest removal)

Post 14 December 19, 2007 at 9 a.m.

Post 9 - very well said. I join the challenge.

Most of the people screaming about lawsuit abuse don't have a clue what happens when there is a legitimate claim to be paid. Insurance companies say no. They say no, and more often than not people accept that and pay bills the insurance company should be paying.

Then if (and maybe sometimes when) the insurance company comes around to paying doctor bills etc., do the docs pay you back? Anyone here ever gotten a check from a doc saying hey - you know that bill we pressured you into paying - well your insurance company finally paid it. So here's your money back. Doesn't happen.

Lawsuit abuse is a tv fiction. I hope people rely on better information than silly rankings and unfounded CALA generalizations.
(Suggest removal)

Post 15 December 19, 2007 at 9:01 a.m.

Its supposed to be gain
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Post 16 December 19, 2007 at 9:07 a.m.

Sounds like a bunch of ambulance chasers have ordered their beaten subordinates to post here on their behalf. Is that you lil Tommy????
(Suggest removal)

Post 17 December 19, 2007 at 9:15 a.m.

Sounds like someone without facts to back up their fears is resorting to name calling. Is that you Rush Limbaugh?
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Post 18 December 19, 2007 at 9:17 a.m.

Why to tell it, Post 3. I think there is definitely a link between the education level of a general population in an area and how much attorneys might take advantage of people there. Shudder.
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Post 19 December 19, 2007 at 9:21 a.m.

Wow post 18, I think 19 just gave you a cyber beat-down.
(Suggest removal)

Post 20 December 19, 2007 at 9:27 a.m.

Hey 21, you must be one of 19's underlings. Is he paying you in turkeys?
(Suggest removal)

Post 21 December 19, 2007 at 9:31 a.m.

No 22, I'm not one of 19's underlings. I don't even know who 19 is other than he/she is the one who just gave 18 a cyber beat-down.
(Suggest removal)

Post 22 December 19, 2007 at 9:44 a.m.

Post #5 Your comment regarding the Bonilla's is libelous. You owe them an apology!
(Suggest removal)

Post 23 December 19, 2007 at 9:50 a.m.

Look in the yellow pages for attorneys, then see how many are certified. Must be big business in law suits here? I think Corpus has a problem!!!
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Post 24 December 19, 2007 at 9:57 a.m.

Ok post 9....lemme take a shot at it.....back in 1992 i was working in Robstown during the time of the Oxychem release. Oxychem accidentaly released some poisonous gases into the air. I know for a fact there were "runners" from various law firms that were going door to door to solicit people to join the Class Action Lawsuit against oxychem. The settlement turned out to be something like 65 million with 22 million going to the 10 law firms involved. People who may have really been hurt by this release received an amount between $500 and $5500 dollars for their troubles. Some of the folks that received the monies, were WORKING with me that day. They were no where near the release and i would bet, quite a few of the folks that received monies were no where near.....one lady was out of town that day, she was asked to sign and she received some money. I believe the company should have been held responsible but in my opinion, this was a frivolous lawsuit....the people that were actually hurt by that release should have received more than $5500 (especially unborn children who were born with severe birth defects during that time). Lawyers receiving 22 million? I'm sure you'll come back with reasons as to why this was NOT a frivolous lawsuit but it's cases like that that leave people with a bad taste in thier mouths for lawyers and thier profession. just an opinion.....don't get the manties in a wad.
(Suggest removal)

Post 25 December 19, 2007 at 10:02 a.m.

Then do it without a lawyer. See what happens.
(Suggest removal)

Post 26 December 19, 2007 at 10:06 a.m.

All you have to do is read this post and it isn't difficult to see why this article is correct and why major corporations stay away from Corpus Christi.

You want frivolous lawsuits filed in Corpus? How about the lady against Celis who WON her case but wants a refund for attorney’s fees because "he wasn't a lawyer".

My girlfriend was involved in a car wreck (it wasn't even her fault, she was sitting at a intersection, another car next her ran the red light, this car was hit and the collision hit her car) but she was still sued as was the driver that ran the light even though there was no medical bills and the insurance at fault was covering all damages. How about the nurse that was murdered in the parking lot of Spohn? Her family is suing the hospital because 'Security wasn't around to stop it' as if the it was their fault! And I'll not even mention all the mold claims/lawsuits. We live in South Texas, of course there is going to be mold...

There are a few for you that I consider frivolous but I guess you would consider them otherwise. In some situations (insurance not paying claims they should, doctors that are grossly negligent, when people refuse to take responsibility for their actions, etc.) but in Corpus people take it to extremes.
(Suggest removal)

Post 27 December 19, 2007 at 10:15 a.m.

Nice try post 26, but the challenge is to cite one specific example of a "frivolous lawsuit" resulting in a big VERDICT. What you just described was a company, which you just said should have been held responsible, choosing to pay an amount of money rather than face a Nueces County jury. Just because a company gets sued and a lawyer gets paid does not mean it's a "frivolous" lawsuit and regardless of what the CALA people might tell you, companies do not pay millions of dollars to settle "frivolous" lawsuits. Still waiting for that big verdict in a frivolous Nueces County lawsuit.
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Post 28 December 19, 2007 at 10:16 a.m.

Post 9, 16 and all the other ones leaving in a cave.....I mean Corpus Christi. You must be one benefitting from one of these lawsuites. 80 percent of this town does not have car insurance, but yet they still drive, speed, run stop signs and ask for a free hand out when an accident happens. Do you see the picture I'm painting. This city is run to suite these people. NOT the law abiding, hard working class. I live hoping that one of these law breaking "good" cictizens of this town doesn't hit me to and from work, much less one of my family memebers. Way to go people. You're living in a cave.
(Suggest removal)

Post 29 December 19, 2007 at 10:20 a.m.

Post 28, were any of these cases tried to a verdict? Again, if Spohn paid millions, then they didn't consider the case "frivolous".
(Suggest removal)

Post 30 December 19, 2007 at 10:23 a.m.

What's the 1st thing you see coming out of a hospital or clinic in Corpus Christi? A big billboard with some 2 bit lawyers face on it. No respect and no class. Most American doctors have left C.C. Next time you see a doctor you will see what i mean. C.C is being ruined by these Grifters.
(Suggest removal)

Post 31 December 19, 2007 at 10:29 a.m.

The person with the challenge is changing the definition of frivolous to suit their needs. Because money was paid doesn't mean the suit was legit. This breakdown in simple logic is why the S TX courts are so plaintiff friendly. I have lived here my whole life - I can tell you it is not bliss.
(Suggest removal)

Post 32 December 19, 2007 at 10:32 a.m.

Wow, it really is Rush. Welcome to Corpus. Didn't know you cared.

See? Name calling and fear mongering.

Just be glad that when you are hurt or feel like your rights have been violated, there will be someone there to help you, even though you lambast them when things are going your way.

Really sounds low class, huh?
(Suggest removal)

Post 33 December 19, 2007 at 10:38 a.m.

Oh, c'mon that's just the Oxycontin talkin'!
(Suggest removal)

Post 34 December 19, 2007 at 10:44 a.m.

Look, its very simple. Insurance companies and corporations are very sophisticated. They will not pay large settlements like the one mentioned in post 26 unless they believe a jury will award a large verdict. If juries in a jurisdiction do not award large verdicts in "frivolous" cases, then insurance companies and corporations will not pay substantial amounts of money to settle "frivolous" cases. That's why I'm asking the question, what large verdicts have been awarded in "frivolous" cases in Nueces County that are prompting these corporations to pay large settlements for "frivolous" claims? Perhaps these cases are not "frivolous".
(Suggest removal)

Post 35 December 19, 2007 at 10:46 a.m.

Insurance companies would rather pay claims than lawyer fees. Del Mar College had an EEOC person (lawyer) who encouraged lawsuits against the college. She was finally let go but it angered some board members and employees who got used to the $$$ and a job for life. What happened? The president that took action left town and the employees, and board members are still there.
(Suggest removal)

Post 36 December 19, 2007 at 10:52 a.m.

"One section of the report chastised Corpus Christi attorney Thomas J. Henry.."What do you call someone who chases the ambulance chaser?"
Oh, man...now that's a beatdown!
(Suggest removal)

Post 37 December 19, 2007 at 10:58 a.m.

I just knew a comment like Post 24 would pop up here.
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Post 38 December 19, 2007 at 10:58 a.m.

Good point 38, sounds like a very unbiased report by an organization with the words "Tort Reform" in its name.
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Post 39 December 19, 2007 at 11:02 a.m.

post 31

Haven't you ever considered it’s cheaper to pay out then fight? I guarantee Spohn figured it would be cheaper to pay millions now then run up millions in legal fees and risk paying out 2x as much later.

Put yourself in their position, knowing full well people in corpus are known for suing at the drop of a hat, and these same people either elect the judges or will serve on a jury to decide your case, would YOU take the chance that they will agree with you (the big bad company) or will you just "cut your losses" and settle.

The end effect is the company raises their rates to cover their losses or close down and leave the area. Welcome to economics 101 now you see one of the reasons why Corpus is in the state it’s in. Why doctors leave, Lawyers have such a huge chunk of the phone book, and insurance is way more expensive then it should be.
(Suggest removal)

Post 40 December 19, 2007 at 11:13 a.m.

Post 31

To answer your question,

Regarding my girl friend, no her part was dismissed but it cost her 2 days work and $1,000 hiring a lawyer to defend her self from a "frivolous lawsuit". I don't know about the other guy but I'll bet the insurance settles like they usually do. Point was, the insurance was going to replace the truck (in full) but that wasn't enough, he wanted "pain and suffering for the mental anguish of loosing his truck" while she was just happy that they paid the rental while fixing her car.

Regarding the nurse and Spohn, I was under the impression Spohn settled which of course just proves the point its cheaper to cut losses then fight, especially in Corpus.

Regarding mold, I personally don't know about any "lawsuits" but I'm sure there were some as well as numerous threats regarding them and huge payouts. Why else did, companies started charging out the roof for insurance and even quit writing new policies for awhile? The greed of the few cost everyone else. “There is no such thing as a free lunch”

Post 28
(Suggest removal)

Post 41 December 19, 2007 at 11:20 a.m.

he family of the slain nurse are not suing because there was not enough security, thery are suing because the hospital knew there was a predator lurking around the parking garage and did nothing about it. the man had been reported several times, but no additional security was added and the employees were not told about it so they could make decesions about where to park safely. The did nothing to try and prevent the situation.
(Suggest removal)

Post 42 December 19, 2007 at 11:30 a.m.

The reason this study is falsely stating that this is a "judical hellhole" is that they know that the media will report the false stories here and attempt to prevent persons access to the courts. This entire sham of "frivolous lawsuits' is based on the fact that this is an area controlled by the special interest groups and this plot or scheme cannot be perpetutated anywhere else where the area is not controlled. Corpus will never progress until these hidden interests of insurance companies is halted.
(Suggest removal)

Post 43 December 19, 2007 at 11:46 a.m.

post 44 You seem to be an expert on falsely stating...
There is no person/ entity preventing access to the courts and therefore any conspiracy you allege does not exist.

Please explain the "hidden interests" of insurance companies. Insurance companies charge a premium to cover a risk and hope to make a profit. If a claim is presented to the insurance company they are contractually bound to pay the claim if it is a covered risk. Are you not aware of how this works?
(Suggest removal)

Post 44 December 19, 2007 at 12:01 p.m.

#9 the article is about SOUTH TEXAS not just Nueces county and I take your challenge based on SOUTH TEXAS … here is part of and article from the CCT in 2006. The verdict was in Rio Grande City … 32 million to a 71 year old man who had heart disease for 20 years … give me a break! He didn’t even take the drug for the time period that the study said it would take to do the damage.

“A state jury found Merck & Co. liable Friday for the death of a 71-year-old man who had a fatal heart attack within a month of taking its since-withdrawn painkiller Vioxx and ordered the company to pay $32 million. Merck said it would appeal.

The damage award will likely be reduced because of a state law capping punitive damages.

The jury of 10 men and two women deliberated for about seven hours over two days before returning the verdict in favor of the family of Leonel Garza, who had suffered from heart disease for more than 20 years and had taken Vioxx for less than a month.”

“"This is the first case in the country where short-term usage has been found by a jury to be causatory of heart attacks," said plaintiffs' attorney Joe Escobedo. "We hope this will go a long way in dispelling this '18-month' science fiction myth."

Vioxx was found to greatly increase the risk of heart attacks in people who took the painkiller for 18 months or longer.

"I just don't think there's any basis to the verdict that came down today," defense lawyer Richard Josephson said.

Lehman Brothers analyst Tony Butler said he was "a little shocked by the verdict given all of Mr. Garza's health problems." He thinks Merck is pursing the correct strategy by trying each case individually because in the past drug companies have only forked over big settlements when they entered into massive class action suits.”
(Suggest removal)

Post 45 December 19, 2007 at 12:31 p.m.

Sounds like a bunch of personal injury lawyers trying to defend their lowlife likestyles. I remember when being a lawyer was an honorable vocation. I had a grandfather who was a federal judge and several uncles who practiced law. Now being a lawyer is the same as being a used car dealer.
(Suggest removal)

Post 46 December 19, 2007 at 12:40 p.m.

HAHA...Post 9 just got OWNED!
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Post 47 December 19, 2007 at 12:54 p.m.

Dear No. 44: Bay Area Citizens Against lawsuit Abuse is funded by insurance companies and they are attempting to prevent access to the courts by portraying lawsuits as frivolous. Insurance companies deny valid claims every day. When they do not pay the only right you have is to hire a lawyer and sue them. You have a hard time suing them now because of fraudulent groups like them and fraudulent articles like this. Hope this is simple enough for you.

.
(Suggest removal)

Post 48 December 19, 2007 at 1:04 p.m.

Take your pick #9

"Jury awards $42M to family of boy who died in Expedition"
http://www.caller.com/news/2005/sep/15/j...

Local couple receives $19M in damages
http://www.caller.com/news/2006/dec/15/l...

Kleberg jury gives $1.2M to mother of man killed in crash with oil truck
http://www.caller.com/news/2006/dec/08/k...

Jury awards Bay Ltd. $117 million
http://www.caller.com/news/2006/aug/03/j...

$29M award in tire lawsuit
http://www.caller.com/news/2006/jan/28/2...

Jury awards $30M in suit against Ford
http://www.caller.com/news/2005/oct/04/j...
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Post 49 December 19, 2007 at 1:19 p.m.

Don't forget to add that we have the highest teen pregnancy rate in the country, the city is considered one of the "dumbest cities in America," and has some of the "worst drivers anywhere." These quotes have been published by Men's Health magazine. I think it's time for me to get the heck out of Dodge!
(Suggest removal)

Post 50 December 19, 2007 at 1:20 p.m.

Post 49

I'm not post 44 but I'll answer anyway.

I'll agree with part of your post in principle (regarding insurance not paying and having your only recourse to sue when they don’t) but as post 50 points out, not ALL lawsuits fall into that category. And many even in that category are a case of “I think I should get more then they gave me”

I hope thats simple enough for you.
(Suggest removal)

Post 51 December 19, 2007 at 1:51 p.m.

it is a shame, i know that several years ago, a contract worker allegedly fell from a four foot ladder because he was wearing
greasy gloves and allegedly hurt his back. His wife or girl friend
sued because The alleged injury interfered with her sex life. GIVE
ME A BREAK! IS THAT LAWSUIT ABUSE OR WHAT!
(Suggest removal)

Post 52 December 19, 2007 at 2 p.m.

I would posit that the recent federal silica MDL Daubert hearings (and the subsequent mass-remand to MS), along with Judge Jack's recommendations for sanctions against Campbell Cherry, et. al, are strong evidence of lawsuit abuse.

Arguing that this example doesn't count as "frivolous" simply because a jury didn't hand out a jackpot reward to any of the 15,000+ sham plaintiffs is disingenuous at best. Every single one of those defendants had to pay huge legal bills to defend themselves against fabricated cases with fabricated evidence that drug on for several years before the truth finally came to light.

I'll hit post now and wait for your response.
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Post 53 December 19, 2007 at 2:02 p.m.

"The jury of 10 men and two women deliberated for about seven hours over two days before returning the verdict ..."

post 46. Now - those people sat through real live evidence. And deliberated for a long time before they made the decision they did. You have rumors and think you can make a better decision.

Hmm. Same old same old.
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Post 54 December 19, 2007 at 2:22 p.m.

Post 50 demonstrates exactly what the problem is with CALA. The first case cited deals with the DEATH OF A TEN YEAR OLD CHILD!!! How in the world can any of you lump that in the category of "frivolous" claims. Just because a jury awards a large verdict does not mean the case is "frivolous". I'm sure when these parents go to visit this child's grave, they don't consider the case frivolous. How heartless can a human being possibly be. Anyway, still waiting for that frivolous Nueces County verdict.
(Suggest removal)

Post 55 December 19, 2007 at 2:28 p.m.

Justice is spelled ( CASH )
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Post 56 December 19, 2007 at 2:47 p.m.

49, 45 here How is access to courts denied? You can hire any attorney you want for whatever purpose. I don't see how raising legitimate concerns about the abuse of the legal system and reporting how S TX courts are statistically out of line with most courts nationally is fraud. Please look up the definition. Perhaps you are trying to give another example of "falsely stating..."
(Suggest removal)

Post 57 December 19, 2007 at 2:54 p.m.

Post 56 demonstrates the problem with the sue happy culture of this area.

How does 42 million bring the child back? It doesn't. Did the family keep the money and are they now living high on a hog enjoying the fruits or did they do the honorable thing and donate the money to help support other victims of tragedy. Its one thing to sue to make a statement and fix a wrong (or bring it to light) but its another if your after money (and it doesn’t take 42 million to make a statement).

Let me put it another way, the amount of money they were awarded was equivalent to 700 salaries (at 60k a year). What would have happened had Ford laid people off to pay for it. Does this tragedy merit risking 700 families of their lively hood who had nothing to do with it? What if the damage was worse and the company had to shut down, thousands would have lost their job all because of one accident. That’s justice?!?!

Bah you don’t understand and never will. You are probably one of those that would sue your mother if you thought you could get something out of it…
(Suggest removal)

Post 58 December 19, 2007 at 2:54 p.m.

Well then, how about this one... In May of 1999, there was an explosion at Coastal Refinery here in Corpus. Daniel Torres, William Bourland, and David Natividad were among those injured. As is the practice in the modernized world, and as is required by law in TX, they received Worker's Compensation benefits for their injuries. Yet later, they hired an attorney in town to go after Coastal's holding company, simply because they had deeper pockets. See generally http://www.chron.com/CDA/archives/archiv...

But wait, that's contrary to years of precedent in TX case law, not to mention the fact that it is directly in conflict with the TX WC code. They can't bring suit when their case is barred like that, can they?

Sure they can, this is Corpus, a 6-time judicial hellhole, remember? The jury awarded the plaintiff's $122.5 million. (This would be the "verdict," for those of you playing along at home).

It was only on appeal, more than five years later, that the 13th Court of Appeals overturned the result, rendering a take nothing verdict for the plaintiffs. See -- http://www.13thcoa.courts.state.tx.us/op...

So, before you make the argument that "hey, that just means the system works, a bogus verdict got corrected eventually... " sadly, that was not the end of the case.

The plaintiffs, in an astonishing display of chutzpah, asked for a rehearing and then appealed the case to the TX Supreme Court... who promptly denied the petition for review without comment. See -- http://www.supreme.courts.state.tx.us/Hi...

So, let's go over our list here... we have a case that should have never been filed in the first place -- check, Which drug through three different court systems, over the span of 5+ years, wasting judicial resources that could have been spent on legit cases -- roger that. And which cost a local company hundreds of thousands of dollars in legal fees, which they will never have reimbursed by plaintiffs or their attorneys, even though they followed the law and were in the right the entire time -- correctamundo!

I would say that qualifies, even by your shifting definition, as "frivolous."

What do I win?
(Suggest removal)

Post 59 December 19, 2007 at 2:59 p.m.

Post 53, thanks for yet another unsubstantiated unprovable example of lawsuit abuse. This should go along with the one about the guy that sued an airline because he claimed that he was molested by a space alien while in the restroom of an airliner at 30,000 feet. The airline decided to pay the guy $100,000 instead of fighting it. Did you hear about that one? Probably not, I just made it up. But I'm sure you and the rest of your CALA buddies will be repeating it as an example of lawsuit abuse at your next meeting.
(Suggest removal)

Post 60 December 19, 2007 at 3:07 p.m.

Post #56 …That child died because it was broad-sided by someone who ran a red light … how is that Fords fault??? He would have died in any car … this jury in “Nueces county” found that Ford was 90% at fault??? You must be kidding me.

Yes it is a tragedy that a child died but Ford is not at fault here and this case is exactly what the article is talking about. The jury and judges in south Texas jump at any opportunity to give plaintiffs money from big businesses no matter what the facts are.
(Suggest removal)

Post 61 December 19, 2007 at 3:18 p.m.

59 is correct in an example of the effects of lawsuits. According to the article,a S TX jury that can be easily swayed by an emotional appeal as demonstrated by post 56.
(Suggest removal)

Post 62 December 19, 2007 at 3:24 p.m.

Specific example: There was an OBGYN doctor here that was sued, because unfortunatly a very sick baby passed away due to some of the choices the mother made. The doctor was found at no fault but the jury decided the family needed somewhere in the neighborhood of a mill. I am truly sorry the baby passed away but that is crap. PI Lawyers in general are crooks. The reason I say this is for instance the Firestone tires lawsuits, these people were trully hurt and deserve every penny they got but the lawyers pulled 60% off the top. I understand needing to be paid for your time but 60% give me a break. I know my facts are right, because I got them from a person that was working on the case.
(Suggest removal)

Post 63 December 19, 2007 at 3:38 p.m.

Why can't we accept the fact that accidents happen, people get sick, injured and die? All these lawsuits imply there is no such thing as an accident, only yet-to-be-determined negligence.
(Suggest removal)

Post 64 December 19, 2007 at 3:43 p.m.

Post 3 - is correct.

Thomas J. can you provide factual data to prove the report is "poorly researched". And what practice are you comparing "lack of professionalism".
.
(Suggest removal)

Post 65 December 19, 2007 at 4:38 p.m.

Bottom line is greed. Post 34 is right!
(Suggest removal)

Post 66 December 19, 2007 at 4:51 p.m.

The jury pool of people in this town doesn't care about real circumstances, just perceived justice. Even the lawyers and judges are this way. In the next couple of years, it'll be run by descendants of illegal’s, then we're all jacked.
(Suggest removal)

Post 67 December 19, 2007 at 5:02 p.m.

I love this paper, keep it strong Pat and Libby
(Suggest removal)

Post 68 December 19, 2007 at 7:15 p.m.

I love our jury system. The jury is the only refuge from the autocrats and ruthless capitalists who can buy political influence to thwart the rights our constitution gives those injured because of the negligence of anyone, including the government. Insurance companies and their legions hate the fact that juries can make them pay, even though the jury is never told insurance is behind the scene financing elaborate defensive schemes and delay tactics to frustrate the injured person and their lawyer. Allstate is being fined $25,000 per day in Missouri because they will not produce the McKinzey documents, that outline their national strategy to defeat legitimate claims and prejudice potential jurors with support for clans like CALA. and the frivolous lawsuit drumbeat. The strategy has worked, because folks believe all the banter about how we are all hurt when a truly injured child recovers what an honest jury awards in damages. The truth is coming out, and juries are waking up to the reality. It's about money, stupid.
(Suggest removal)

Post 69 December 19, 2007 at 9:46 p.m.

Why Does anyone listen to these people???!!!
Bay area Citizzenz and other Tort reform groups are irrelevant.

Just a bunch of greedy people who don't want any accountability when they hurt people

AND you know when you hurt someone really BAD then the medical bills are going to be huge. People like these would rather have sick and injured people kicked to the gutter if its going to cost them a penny. they are arrogant and can't stand to have their bloated egos bruised by a jury.

Hoooray for areas like Corpus where the juries still believe in justice.
(Suggest removal)

Post 70 December 19, 2007 at 11:31 p.m.

So is it true that when you win a settlement and it takes a year to get to you does that mean that your attorney has been holding it all this time in his account so he can earn the interest before deciding to give you the money? Aren't you suppose to get paid as soon as the money is sent to your attorney?
(Suggest removal)

Post 71 December 20, 2007 at 12:53 a.m.

Post 56
It is always sad when a child dies but the lawsuit states that Ford is responsible because they don't have laminated glass as side windows like the windshield. What? Watts refers to the glass as a "child restraint system". That was one of the most frivolous lawsuits ever! Imagine the lawsuits because people burned up in cars who's doors jammed in an accident and caught on fire. You could never escape a car with "laminated" glass all around. Laminated glass was invented by Henry Ford in the 1920's to keep flying rocks from hitting the occupants. It was never a "child restraint".
(Suggest removal)

Post 72 December 20, 2007 at 6:39 a.m.

Post 9 - "cite one single instance of a "frivolous lawsuit" resulting in a big verdict in Nueces County, Texas."

Sep 19, 2003 - "Corpus Christi, TX, and surrounding Nueces County number among the nation's "judicial hellholes," in the words of one tort reform group. Area physicians would agree—six of every 10 had at least one malpractice claim filed against them during the four years from 1998 through 2001, according to the Texas Board of Medical Examiners."

"Few have made it hotter for local doctors than personal-injury attorney Thomas J. Henry. Until recently, a giant sign advertising his services stood across the street from Driscoll Children's Hospital, greeting ambulances—no chasing needed."

"Last year, though, Henry received some unwelcome publicity when a judge fined him $50,000 for bringing a frivolous, harassing suit against ED physician Stephen Smith and internist Robert Low."

Frivolous lawsuits are so common in Texas, they're considered the norm. Even the STATE gets in on the action, suing anyone and everyone associated with a problem no matter their responsibility or ability to do anything about it, either before or after the fact.

Just BEING THERE as a representative of some company will get you sued, anytime there's an accident of any sort, whether or not you were involved in any way. My company got sued once and our only involvement was having a vehicle at the location. We still had to get a lawyer, file tons of paperwork and appear in court. NONE OF THAT IS CHEAP and THAT'S what frivolous litigation is all about! Lawyers who simply sue everyone in sight, every time someone gets hurt should be disbarred! That would eliminate about half of the "South Texas" variety...
(Suggest removal)

Post 73 December 20, 2007 at 7:57 a.m.

OK boys and girls, Post 9 here. Thanks to all of you CALA clones for playing the game. Special thanks to Post 60, the only one who even arguably was able to cite a specific example in Nueces County. Good work counselor, too bad you could find nothing from this century. Post 75, the rules of the game specifically required a large Nueces County jury verdict in a frivolous claim. Your reference involved neither Nueces County not a jury verdict, but thanks for trying.
So what does all of this prove? Well, it proves my point. 24 hours have now passed and all you could come up with is a 1999 case that was reversed by our Court of Appeals. Is our jury system perfect? Of course not. But as all of you demonstrated by your inability to meet my challenge, frivolous lawsuits are not a problem of epidemic proportions as the insurance industry would have us believe.
I wish you all well and certainly hope none of you are ever injured as the result of someone else's negligence to the point of needing legal redress. However, if you are, I hope you find a qualified attorney to represent you. I just hope you don't have people like yourselves on your jury.
Again, thanks for playing. Gotta go now. Peace/Out.
(Suggest removal)

Post 74 December 20, 2007 at 9 a.m.

post 71 "Just a bunch of greedy people who don't want any accountability when they hurt people"
You could apply this to personal injury attorneys and many plaintiffs
(Suggest removal)

Post 75 December 20, 2007 at 9:06 a.m.

post 76 Seems you were defeated in your challenge, not only by the original article, but the examples given by posters. I hope you are never a defendant with a South Texas jury. It would be ironic that ignorant people that can be swayed by emotion and don't have the capacity to evaluate facts could take away everything from you and your family.
(Suggest removal)

Post 76 December 20, 2007 at 10:16 a.m.

I agree with post 78. Most lawsuits never make it to jury verdicts because of past circumstance (who is going to be stupid enough to take a case to a jury that will award millions for no reason like in the examples shown above).

There were several examples, some that went to jury, others that did and were appealed, as well as examples of settlements and all for around here. Some were multi millions and others were not but all were frivolous. It doesn’t take millions to run someone’s life (it would take thousands to hurt most people for years) and don’t be a sore looser either. Just admit when you are wrong and move on. Enjoy the spoils of your sue happy mentality. May you not cost anyone their jobs or ruin any lives in your efforts to extort money from innocent people and sleep peacefully at night (in your shoes I couldn't)

Merry Christmas.
(Suggest removal)

Post 77 December 20, 2007 at 10:28 a.m.

Everyone loves to hate the personal injury law industry until a defective product, bad policy, or gross negligence kills or severly harms someone you love. Its there to police corporate america....there are injustices on both sides, however these BACALA people are judgemental snobs that do not understand the process. In their eyes, all lawyers are crooks and no corporation/person should EVER be sued. They need to get off the high horse and take a "grown up" reasonable approach at looking this these issues. When Connie Scott and Karl Rove of all people shoot their mouths off carelessly, they only further kill their own credibility. Reasonable people realize that there are two sides to every story...
(Suggest removal)

Post 78 December 20, 2007 at 11:08 a.m.

post 80 please take your own advice.If reasonable people realize there are 2 sides to every story, why do you not extend that courtesy to CALA? Unless you, by your own definition, are not reasonable.

Emotional appeals, changing the definition of words to suit your prupose and a breakdown of basic logic (as demonstrated above ) lend the "hellhole" article credibility. Ironic
(Suggest removal)

Post 79 December 20, 2007 at 11:20 a.m.

(This comment was removed by the site staff.)

Post 80 December 20, 2007 at 3:07 p.m.

Admit it post 9/76, you were owned. You asked for specific examples, and got several Then you changed the rules and asked for a verdict. Boom, someone delivered. Now you cry that it was too old of a case? Dude, that case didn't "end" until 3 yrs ago, which would be smack dab in the middle of Corpus' 6-yr reign of hellhole-ishness.

Like someone earlier said, frivolous doesn't mean that a jury ruled the wrong way, only today, and only during the hours of 2:37 p.m. to 2:41 p.m., or whatever you'll change your rules to next. Frivolous means without any merit.
(Suggest removal)

Post 81 December 20, 2007 at 8:21 p.m.

I remember the Oxy release, payouts, and the used car lots were the busiest they've ever been. This report did nothing but reiterate, for the sixth time, how lazy people are. Get a job.
(Suggest removal)

Post 82 December 20, 2007 at 11:23 p.m.

Dear post No. 52: Please reread your posting, it does not make any sense. As near as I can tell you are stating that not all lawsuits fall into the category of insurance companies failure to pay. Yes, that is correct. Some lawsuits involved "conservative" President Bush petitioning the courts up through the United States Supreme court to get Florida to stop counting the votes. Some lawsuits involve "conservative" Jim Lago obtaining a declaratory judgment against the radio station he worked for in a frivolous lawsuit proceeding. Some lawuits involve sexual harassments lawsuits against conservative talk show host Bill O'Reilly who settled the case.

.
(Suggest removal)

Post 83 December 21, 2007 at 4:49 a.m.

#1 is right on the money.......the makers of Voixx have gotten away with murder for far too long.

If these paid propaganda brown noser's want to see a judicial hell hole they should take their families on vacation in Iraq.

Selling defective products with knowledge of the defect but choose to keep deceiving the public is just as good as a snake oil salesman.

Deceptive trade Practices, and they insist in proclaiming and portraying their product is worth "buying".

Not if these "corporations" told the public the truth.

What is pathetic, is the insurance industry pays for the product knowing it is defective.
(Suggest removal)

Post 84 December 21, 2007 at 6:41 a.m.

I hired a Bonilla to represent me at a criminal trial, but they put some other attorney that works for them to do the job, who I feel was a rookie and he did not do a very good job. These Bonilla do not care about the person, just on how much they can suck out of your wallet, and believe me they tired to do thier best to suck my wallet dry. I found out more information about my case than he did. I would never hire a Bonilla again and I would never tell someone to use a Bonilla.
(Suggest removal)

Post 85 December 21, 2007 at 7:37 a.m.

I think I need to see if it's justified for starting a class action suit against the manufacture of aluminum wheels for not notifing me of the difficulty cleaning the wheels and not recommending the best type of cleaner to use.

Do you think this would work?
(Suggest removal)

Post 86 December 21, 2007 at 9:17 a.m.

post 87 You have a case and should expect lots of cash from a S TX jury.
(Suggest removal)

Post 87 December 21, 2007 at 9:21 a.m.

post 84 former VP Gore also petitioned the courts. He lost. The other cases you mention only make the case against frivolous lawsuits. Was that your intent? Or were you trying to show post 52 an example of not making sense.
(Suggest removal)

Post 88 December 21, 2007 at 9:29 a.m.

#77 - It's not "a bunch of greedy people who don't want any accountability when they hurt people" It's the fact that there are a bunch of greedy people out there that don't want to get off their lazy butts and make a living like everyone else. All they are going to do is sit around and wait for that big paycheck to come rolling in.

And for those that want an example of lawsuit abuse:

A lawsuit was just filed against my boss and I cause we couldn't get someone's POS house sold for them at the severely overpriced amount that they wanted for it. Even though we haven't had the listing in almost 6 months, the owner thinks that we should have to pay his mortgage, insurance, taxes and utilities from the time that we listed the house in Jan. 2007 until today. So does this fall under the frivolous lawsuit category?
(Suggest removal)

Post 89 December 21, 2007 at 10:09 a.m.

post 91 You misunderstand. The quote was from another poster calling CALA people and tort reform advocates "a bunch of greedy people..." My post 77 was just pointing out the hypocrisy in the statement.

I read a survey where more Americans believe the way to wealth is through the lottery and lawsuits than personal savings. Personal savings would mean you have to work for it and make responsible decisions or as you said "...get off their lazy butts and make a living like everyone else"

You personal story illustrates a good point. If things don't go as expected then someone has to pay, instead of reduce expectations. Ridiculous.
(Suggest removal)

Post 90 December 21, 2007 at 1:36 p.m.

Let's see, a Washington D.C. politcal action committee or special interest group is criticizing the integrity of the judicial system in our home of South Texas? Such groups will say what they are paid to say. We have earned our repsect and paid our dues here, they have not.
(Suggest removal)

Post 91 December 21, 2007 at 2:13 p.m.

post 93 This concept is being demonstrated by the objective, uninterested Thomas J Henry and Mikal Watts. absurd
(Suggest removal)

Post 92 December 21, 2007 at 2:22 p.m.

post 93

Earned our respect and paid our dues? How do you mean? Sounds like your just trying to justify a sue happy mentality to me.
(Suggest removal)

Post 93 December 22, 2007 at 4:12 p.m.

There doesn't have to be a VERDICT to have lawsuit abuse. By merely bringing a frivilous lawsuit, there is a waste of time and money as it hits the judicial system. By the mere fact that a person or company has to defend themselves against something before it is thrown out of a court is alone a waste or time, money, and resources.

To insist that a verdict is the only proof of lawsuit abuse is by far ignorance on your part.
(Suggest removal)

Post 94 December 25, 2007 at 11:07 p.m.

More Brilliance shining through from CALA supporters/members. If a lawsuit is filed against YOU (even if a significant settlement is paid), then it MUST be "FRIVOLOUS"; however, when YOU file a lawsuit (as CALA supporters/members are known to do) the lawsuit all of a sudden becomes legitimate!

1. Texas' arcane delegate system suddenly comes into play
2. Clinton will be at fairgrounds
3. Fairgrounds staff readies for Clinton's arrival
4. Yup, Texans like big, open spaces
5. Hola, Hillary
6. Painkiller patches recalled
7. Keeping up with Clinton
8. Badgers battle back, beat 'Cats
9. Where they stand

A willful violation is defined as one in which there is evidence of an intentional violation of the OSHA Act or plainindifference to its requirements

2007-12-19T03:17:00.000-08:00

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Corpus Christi Firm's Failure to Protect Workers From Asbestos Exposure Brings OSHA Citations, Penalties

DALLAS -- A Corpus Christi, Texas, company's alleged failure to protect employees from potential asbestos exposure has resulted in 14 citations and proposed penalties of $167,775 from the Occupational Safety and Health Administration.

Meridian Contracting Inc., a general contractor that employs about 60 workers, was cited for four allegedwillful and 11 alleged serious violations following an inspection begun in January of a work site at theCorpus Christi Naval Air Station, where company employees were removing the roof and siding of a hangar.

The alleged willful violations were for failing to have a competent person conduct asbestos exposureassessments; failing to monitor employees for exposureto asbestos; failing to remove asbestos materials in aregulated area and failing to exercise general supervisory authority at the project site. A willful violation is defined as one in which there is evidence of an intentional violation of the OSHA Act or plainindifference to its requirements.

The alleged serious violations included failing tohave regular jobsite inspections for asbestos contained areas; failing to use labels identify asbestos contained material; failing to use warning signs marking regulated areas; failing to inform workers of the presence of asbestos; failing to prohibit dry sweeping of debris and failing to properly clean up and dispose of asbestos containedwaste. A serious violation one in which there is asubstantial probability that death or serious physical harm could result and the employer knew or should have known of the hazard.

Employers and employees with questions regardingsafety and health standards can contact the OSHA Corpus Christi area office at (361) 888-3420, or callOSHA's toll-free hotline at 1-800-321-6742, to report workplace accidents, fatalities or situations posing imminent danger to workers.

Meridian Contracting Inc. has 15 working days fromreceipt of the citations to either comply, request an informal conference with the Corpus Christi OSHA areadirector, or contest the citations and proposed penalties before the independent Occupational Safety and Health Review Commission.

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All about the disengagement.....carpetbaggers to the core.........God help you.....Maybe Hubert will be appointed 4TLR in Hell....Oh the drama.......

2007-09-03T14:16:00.000-07:00

Aug. 31, 2007

Gov. Perry Appoints Hubert as District Attorney of Kleberg and Kenedy Counties

AUSTIN – Gov. Rick Perry appointed John T. Hubert of Kingsville as district attorney of Kleberg and Kenedy Counties, pursuant to Senate Bill 1951 of the 80th Legislature, to serve a term until the next general election.

Hubert most recently worked as a solo practitioner and associate with Hornblower, Manning, Ward, Harrison, Vencia and Rodriguez P.C. He formerly served as an assistant district attorney of Nueces County and as the managing assistant district attorney of Kleberg and Kenedy Counties. As a major in the United States Army, he served as the executive officer of Headquarters and Headquarters Company (HHC) 321st Civil Affairs Brigade in San Antonio. Hubert is a decorated combat veteran and currently serves in the Army Reserves as commander of HHC 451st Civil Affairs Battalion in Pasadena, Texas. He is a member of the College of the State Bar of Texas, Veterans of Foreign Wars, and Kleberg County Historical Society.

He received a bachelor’s and master’s degree from Texas A&M University and law degree from St. Mary’s University School of Law.

Republican Party People

2007-09-02T20:23:00.000-07:00

Confession by Cornyn......
Posted on July 18, 2007 at 04:53:35 AM by d1

"Lady Bird was not republican"

"funerals are a waste of time, I need to fund raise not waste time."

Out of the mouth of Junior John

If this were true.....
Posted on July 17, 2007 at 03:34:53 AM by d1

He would have voted yes to education.....

"There's going to be a primary in the Democratic party in March 2008. They're going to choose their candidate and I'm happy to let them campaign while I do the work of the people of Texas in the United States Senate," Cornyn said.

He confesses error to capture jurisdiction from SCOTUS only to
allow the error to benefit by the attorney general acquiescence

Verdad y Chismosos

2007-08-31T12:28:00.000-07:00

He arms these firefighters with the junk science technology his ilk buy at the 2 for a nickel tree.

Junk defibrillator's bought with taxpayer funds from Corny's cronies carpetbagger cars peak gar cia's lube JOB at the MLK March 15, .........Ain't Bobby so cool......

Too bad the true menace is corporate welfare for the rich while I guarantee the poor (with the help(funding) of the
legislature (do not bother to hide it, you will just dig a deeper hole)know their private insurance is only because the rich go along with the premise that because the government is "Boss Hogg" then it is ok to steal from the poor.

A TLR chant credited and by self promotion is only because of the "disengagement of the average citizen in the formulation of public policy" why it is the TLR?INSURANCE achievement their reason behind their success.

Evidence will be in the event:routine surgery snafu results.... the Cut off of their Balls surgery they have allegedly claimed were removed through no fault of the attending physician.

Being the TLR Team player they would not ever consider "filing a lawsuit".
Accidental is incidental and to sue would be frivolous in light of the JoB

Of

"hurt,injured, need a lawyer, too bad"!

TLR~ Eunuchs/UNIX~don;t worry doc's you know they would never dream of suing.

The Texas Fair Defense Act balances the scales of justice to ensure that poor Texans are not sentenced to a poor defense." Landmark legislation actin

2007-08-23T01:41:00.000-07:00

Press Release from State Senator Rodney Ellis

For Immediate Release
Thursday, June 14, 2001
Contact: Jeremy Warren, (512) 463-0113

Perry Signs Landmark Texas Fair Defense Act

New Law Overhauls Texas' Indigent Criminal Defense System

(Austin)//Governor Rick Perry today signed into law the Texas Fair Defense Act, landmark legislation to overhaul Texas' indigent criminal defense system. Senator Rodney Ellis (D-Houston), author of the legislation, praised Governor Perry's action.

"I am extremely pleased by Governor Perry's decision to sign the Texas Fair Defense Act into law," said Senator Ellis. "With today's signature, Texas has taken an historic stand for fairness. The Texas Fair Defense Act balances the scales of justice to ensure that poor Texans are not sentenced to a poor defense."

Texas' criminal justice system has been the focus of national and international criticism, particularly the lack of standards and state oversight of attorneys appointed to represent indigent defendants. The Texas Fair Defense Act addresses this criticism by focusing on four critical issues -- timely appointment of counsel, method of counsel appointment by the courts, reporting of information about indigent representation services, and minimum standards for counsel. The legislation also creates a task force within the Judicial Council to recommend further improvements and direct funding to assist counties in the improvements.

Senate Bill 7 ensures prompt appointment of an attorney for indigent criminal defendants in Texas. The legislation gives courts three options of appointment - a rotation or "wheel" system, a locally-controlled public defender system, or an alternate fair system designed by the judges in the county and approved by a regional presiding administrative judge. The legislation ensures ultimate decision making remains with judges and counties while providing necessary state input and oversight. Senate Bill 7 also requires counties and judges to collect and report information to the state on indigent criminal defense procedures and expenditures.

Senator Ellis has led the fight to reform Texas' indigent criminal defense system. The Texas Fair Defense Act is the product of nearly two years of bipartisan collaboration between legislators, the State Bar, district judges, prosecutors, defense attorneys, and reform groups to provide indigent Texans with timely, adequate counsel at trial.

"A lot of Texans were embarrassed by the problems in our criminal justice system revealed over the past two years," said Ellis. "The Texas Fair Defense act is not a magic potion that will cure all of those ills, but it is a significant first step toward creating a criminal justice system that Texans can be proud of."

###

Texas Monthly was right on, Lost your balls , get castrated , Join TLR, they are liars of mistakes of fact and law.

2007-08-19T20:41:00.000-07:00

http://27thcongressionaldistrict.blogspot.com/
Posted on August 18, 2007 at 07:30:13 AM by d1

dannoynted1 said...

Cut your balls off accidentally, guess if you sue it is lawsuit abuse.

I am so sick of these people paid by the insurance industry to pander to the catholic guilt for a fee of course.

Lawsuit Abuse is not hurting our economy or worth paying for considering filing a claim is automatic denial.
BYe providing the coverage to which you have been compensated for.

How about all the times that someone should have sued but did not.

All you get is Lawsuit Reform. Your eroding your own credibility when you back this kind of politics.

If the Physician insurance industry is too stupid to insure a quack then they are just as guilty,

The whole purpose is "covered" or "coverage" not to promote the quacks because TLR got into bed with the insurance industry,,,,,,

So let me refresh your memory of the the fanatical four that is TLR and their their stentorian Meister energizer bunny Meister, confirmed he took advantage because he could.

"The disengagement of the average citizen in the formulation of public policy" is why they got away with it.

Probably the most honest money hungry display of elevating through destruction of the moral fiber of corporate America who now thank to these ilk could care less about the average citizen.

Too bad when you go TLR and ilk you can't take not 1 PENNY with you........ahh, he gets tears just thinking about it.

August 18, 2007 5:26 AM

Replies:

* Poor TLR.....the truth of preying on the average citizens were exposed, be proud,,,you earned it. - By d1 August 18, 2007 at 07:52:56 AM
o TLR's good buddy won't mind if his balls get cut off ,,,,anything for the team! - By D1 August 18, 2007 at 08:04:43 AM
+ TLR Members don't mind getting their balls cut off ....anything for the team! ~TLR Dream Team~ - By d1 August 18, 2007 at 08:08:04 AM

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~
Poor TLR.....the truth of preying on the average citizens were exposed, be proud,,,you earned it.
Posted on August 18, 2007 at 07:52:56 AM by d1

From the January 2006 Issue...
TLR vs. TM

Texans for Lawsuit Reform responds to our November 2005 article; we respond to the organization’s response.

Shortly after the publication of senior editor Mimi Swartz’s article on the effect of tort reform in Texas (“Hurt? Injured? Need a Lawyer? Too Bad!” November 2005), TEXAS MONTHLY received a letter from Texans for Lawsuit Reform (TLR) alleging that the article contained numerous mistakes of fact and law. We agreed to address TLR’s concerns, promised that we would acknowledge and apologize for any errors in the story, and vowed to defend ourselves vigorously when we believed that TLR’s accusations lacked merit. Although we provided TLR with an unprecedented amount of space in which to publish its criticisms in the January 2006 issue, TLR eventually chose not to repeat its claims of error but rather used the space to tout its achievements. In the meantime, TLR widely disseminated its criticism of Swartz’s article and posted the letter containing its accusations on its Web site. The document that appears below…

TLR's good buddy won't mind if his balls get cut off ,,,,anything for the team!

2007-08-19T20:36:00.000-07:00

Posted on August 18, 2007 at 08:04:43 AM by D1

Mike Scott

Mike Scott serves on the Texans for Lawsuit Reform statewide committee and he is a regional director in Corpus Christi. He has been a valuable advisor to the Texans for Lawsuit Reform since it was founded in 1994 and as a key TLR supporter. He is an active advocate for civil justice reform and a spokesman on behalf of TLR.

Mike is vice president of H&S Constructors, Inc., with two offices in Corpus Christi, one in Alice, Texas and one in Edinburg. H&S currently employs 650 people and has employed as many as 1,800 people. As a businessman, Mike has seen firsthand the effect of lawsuit abuse and the effect of successful tort reform legislation.

Among his many civic activities, Mike served as a charter member and chairman of BACALA (Bay Area Citizens Against Lawsuit Abuse), although he is no longer chairman, he continues to serve on the BACALA Board, past president of the Contrators Safety Council of the Coastal Bend, past chairman of the Craft Training Center, and he served for several years on the board of the Associated Builders and Contractors, Chamber of Commerce Committee to Investigate Lawsuit Abuse in the Coastal Bend. He sits on the Board of Directors for Northwest Regional Hospital. He is a member of the Texas Civil Justice League. He is a member of the United State Parachute Association, a member of the American Welding Society, a member of the American Concrete Institute, a millennium member of the National Rifle Association and a member of the Texas State Rifle Association. Mike is a member of the Navy and Marine Corps League, a life member of the Khe Sahn Veterans, a life member of the Third Marine Division Association, a member of the Veterans of Foreign Wars and the Vietnam Veterans of America. Mike is also a member of the Riverhills Baptist Church.

He is very active in politics and has put together many fundraisers for political candidates, including Governor George Bush, Governor Rick Perry, Senator John Cornyn, Attorney General Greg Abbott, Land Commissioner Jerry Patterson, Comptroller Carl Strayhorn, AG Commissioner Susan Combs, Senator Kay Bailey Hutchinson, Senator Phil Gramm, all of the Texas Supreme Court Justices, District and County Judges, and City Council Members and Mayors. Scott worked on the passage of Proposition 12 to limit Medical Malpractice caps, and has testified numerous times in front of the Texas House on the ill-effects of frivolous lawsuits in Texas. He graduated from Carroll High School in Corpus Christi, spent four years in the Marine Corps with two years in Vietnam, and later received an Associates Degree from Coastal Bend College in Mechanical Engineering. After Coastal Bend College he attended A&I which is now known as Texas A&M Kingsville. In 1981 Scott and his partner Pat Horne formed H&S Constructors. He is married to his wife Connie, who incidentally is Executive Director for Bay Area Citizens Against Law Suit Abuse, and with whom he has four daughters and three grandsons.

If Asbestos is Junk Science then this junk sdience won't mind breathing it in!

2007-08-19T20:29:00.000-07:00

Current legislation aimed at class action reform-capping attorney's fees, requiring medical minimums, and shifting class actions from state to federal courts-are all means of curbing the abuse rather than deterring or punishing the abuser. While the obstacles and disincentives are certainly steps taken in the right direction, these measures alone do not reach the root of the matter and will not be sufficient to effectuate real change.7 In Texas, despite the 2003 attorney's fee caps, the state's medical minimum reform a year later, and the federal Class Action Fairness Act, corrupt asbestos lawyering has turned to corrupt silica lawyering and class action abuse continues unabated. For true reform to occur, both principally and practically, the current measures erected to block opportunistic and unethical behavior must be accompanied by measures designed to reprimand lawyers for their professional indiscretions. Such measures should be guided by the Model Rules of Professional Conduct.

Part I of this Note assesses the effectiveness of the primary instrument used to combat class action abuse, Rule 23 of the Federal Rules of Civil Procedure, and concludes that relying on the rule as a procedural safeguard for class claimants, even with its new expanded judicial discretion, is insufficient. This section illustrates, through the two most recent asbestos decisions, Amchem Products v. Windsor and Ortiz v. Fibreboard Corp., how the Supreme Court's evaluation of class conduct governed solely by Rule 23's adequacy analysis leaves unethical lawyering largely unchecked, most dangerously in the context of settlement-only class actions.8 With the Class Action Fairness Act of 2005 likely to shift class action litigation from state to federal courts, revisiting Amchem and Ortiz, the two seminal decisions on ethical class representation within the Rule 23 framework, takes on added importance.

Part II examines why courts have been so reluctant to apply the state equivalents of the Model Rules to class actions. It concludes that the slightly imperfect fit of the ethical rules has not only rendered them inapplicable in the eyes of the courts, but has also stalled any effort to introduce meaningful alternative ethical guidelines.

Part III recommends that as mass tort litigation grows with no sign of slowing down, Congress or the American Bar Association must set clear ethical boundaries for the professional behavior of lawyers involved in such cases.

The amount of mass tort litigation has risen dramatically in recent decades, due partly to mass consumption of goods and increased communication to potential plaintiffs, but mostly because of aggressive lawyering created by the enormous financial incentive of serving as class counsel.9 Lessening this financial incentive is undoubtedly an effective means of combating class action abuse. However, it should not be a substitute for applying rules of professional conduct. Failure to accompany such reform with the application of recognized ethical standards is both practically insufficient and principally inconsistent. It means a lawyer's ethical obligations vary depending upon the number of clients he represents. And it means punishing the unethical crime without consequence for the unethical perpetrator. Judge Jack's nationally recognized intolerance towards the corrupt silica lawyers, the heightened public awareness of needed mass tort reform since the Class Action Fairness Act, and the growing state legislative response, provide a valuable opportunity to revisit and clarify the ethical ambiguities of class action litigation.

Poor TLR.....the truth of preying on the average citizens were exposed, be proud,,,you earned it.

2007-08-19T20:07:00.000-07:00

TLR Members don't mind getting their balls cut off ....anything for the team! ~TLR Dream Team~
Posted on August 18, 2007 at 08:08:04 AM by d1

Governor George Bush, Governor Rick Perry, Senator John Cornyn, Attorney General Greg Abbott, Land Commissioner Jerry Patterson, Comptroller Carl Strayhorn, AG Commissioner Susan Combs, Senator Kay Bailey Hutchinson, Senator Phil Gramm, all of the Texas Supreme Court Justices, District and County Judges, and City Council Members and Mayors.

TLR~when your balls get cut off will you sue?

2007-08-19T20:01:00.000-07:00

This site describes the efforts of citizens of Texas to restore balance and fairness to the Texas civil justice system. Leo E. Linbeck, Jr., Dick Weekley, Richard J. Trabulsi, Jr., Allan Shivers, Jr., Hugh Rice Kelly and Michael S. Stevens lead this organization. Founded on principles of solid research, grassroots advocacy and bi-partisan cooperation, more than a dozen tort reform measures have been enacted since 1995. These measures and the ongoing effort of Texans for Lawsuit Reform are defined on this site. TLR has also helped scrutinize the legal fees associated with the Texas tobacco settlement.

Texans for Lawsuit Reform
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Recent News
Lawsuit Reform and the $54 Million Pair of Pants
San Antonio Express News, June 25, 2007

The recent report of a $54 million lawsuit against a family-owned dry-cleaning business over a pair of lost pants was a harsh reminder of the threat of outrageous litigation American businesses, large and small, face every day.

Read more...
How Lawsuit Reform Has Affected Patients And Doctors
The Dallas Morning News, July 17, 2007

Dr. Daniel Altstatt had been in Brownwood, Texas, just two weeks when 71-year-old Ruby Collier came to his office with urinary problems. Nurses had diagnosed her with a bladder infection. But the problem wasn't that simple.

Read more...
Do-It-Yourself Tort Reform
Wall Street Journal, July 12, 2007

What do you call a surgeon who wears a suit? A defendant. It's an old joke, but at any given moment in the U.S., approximately 60,000 medical malpractice suits are being tried, many involving multiple physician-defendants. That's roughly 10% of the physician population. And once a physician experiences the legal system, it can scar him permanently.

Read more...

June 2006: Restoring the Integrity of the Jury System
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In this issue...
Restoring Integrity in Juries
TLR Staff Changes
U.S. Tort Index
TLR Around the State
Hyundai Decision
Proposition 12

Restoring the Integrity of the Jury System

The jury system is a bulwark of democracy, but like any other democratic process, it can be rigged. In parts of Texas, some lawyers have developed the art of trick questions during jury selection (known as �voir dire�) that are designed to eliminate fair-minded jurors. When these questions winnow out enough responsible citizens, those who remain on the jury bear little resemblance to the community they are supposed to represent.

For example, if you were called to jury duty, how would you react to a lawyer�s question seeming to suggest that you should disregard the fact that a child killed in an accident was not wearing a seat belt? This was the question raised in a recent landmark case decided by the Texas Supreme Court. On its face, the lawyer�s question seems innocent enough�merely whether jurors �could not be fair�if they knew [the child] had not been wearing a seat belt.� But, in context, this is a �commitment� question calculated to eliminate safety-minded jurors�as proven by the fact that this line of voir dire questioning in fact eliminated not one but two complete panels of prospective jurors.

In this kind of �commitment� question, the plaintiff lawyer was clearly attempting to identify and disqualify jurors who, having heard a sketchy description of the facts in voir dire, and before hearing all of the evidence, would admit having an opinion about driving with children unbelted.

The Texas high court fortunately brought this kind of abuse to a stop, ruling in Hyundai v. Vasquez that jurors may not be disqualified because of their answers to these so-called �commitment� questions, even if the judge permits such questions to be asked. In effect, the Supreme Court ruled that a juror who admits having common sense is not to be dismissed �for cause� as �prejudiced.� Texans for Lawsuit Reform had advocated this result through an amicus brief we filed in the case. For those readers who want more detail about the facts of this case and the Court�s reasoning, please see the article on page 6 of this Advocate.

Juries are supposed to be selected in a neutral process from a cross-section of the citizenry. When that selection process is subverted, the abuses must be corrected in order to preserve the jury system. By eliminating an abusive practice that prejudiced the neutrality and fairness of the jury selection process, the Hyundai decision represents a major step toward restoring the integrity of the jury system.

Hugh Rice Kelly
TLR General Counsel

Justin Unruh and Sherry Sylvester Join the TLR Team

Justin B. Unruh is the new Director of the TLR Political Action Committee, effective June 1, 2006. �Justin is well qualified to become an integral member of the TLR team,� said Dick Trabulsi, TLR PAC Chairman. �We conducted an exhaustive search for just the right person with the energy, experience, judgment, philosophical commitment to our cause, and work ethic to continue the successes of TLR PAC. We found that person in Justin Unruh. For the last seven years, Justin has been Chief of Staff and Legislative Director for Geanie Morrison, one of the most able and respected Members of the Texas House of Representatives. While Rep. Morrison was very reluctant to see so trusted and capable an advisor leave her staff, she recognized that this is a great opportunity for both Justin and TLR and graciously assented to Justin�s move.�

Michael Stevens, TLR PAC Board Member, noted Justin�s qualifications: �Justin Unruh brings a wealth of experience to the PAC Director�s job. He has been active in political campaigns and legislative policy throughout his career. Justin received his Bachelor of Arts in Government from the University of Texas at Austin. We all look forward to working with Justin as our PAC continues to support candidates who share our views on the Texas civil justice system.�

�The leadership and volunteers of Texans for Lawsuit Reform are the Jedi knights of Texas politics.�
� Sherry Sylvester

Sherry Sylvester , an award-winning journalist and political operative, has joined TLR�s communication strategies team. A former political writer for the San Antonio Express- News, Sherry left the newsroom in 2003 to found Texas Media Watch, the country�s first media monitor to target statewide metropolitan dailies. In 2005, Sherry took a working sabbatical to run the communications operation for the GOP nominee for governor in New Jersey. Recently, she was named Alumni of the Year by her alma mater, the Graduate School of Political Management at George Washington University, for her achievements in both politics and media.

�The leadership and volunteers of Texans for Lawsuit Reform are the Jedi knights of Texas politics,� Sherry observed. �Their integrity, commitment, strategic skill and discipline are unparalleled in the state. I am delighted to be part of the team.�

�The leadership and volunteers of Texans for Lawsuit Reform are the Jedi knights of Texas politics.�
� Sherry Sylvester

Hugh Rice Kelly, TLR�s General Counsel, commented, �Sherry brings wide experience, honed skills, and sound judgment to the important task of communicating the compelling arguments for establishing a civil justice system in Texas in which every litigant in every courthouse can receive fair and balanced treatment, with an efficient and reasonable outcome.�

Matt Welch and Ken Hoagland Establish Consulting Practices

Matt Welch, TLR�s longtime Political Action Committee Director, and Ken Hoagland, TLR�s veteran Public Relations Director, have left the full-time employ of TLR to establish independent consultant practices. Fortunately, each will continue in a consulting capacity with TLR.

Matt is establishing Horizon Public Affairs, an Austin-based public affairs and legislative advocacy consulting firm. In leaving his role as TLR PAC Director, Matt reflected, �It has been an honor to be part of a team of Texans with such incredible integrity, character and civic virtue as the leadership and staff of TLR.� TLR PAC Chairman Dick Trabulsi observed, �Matt Welch has had a dramatic impact on Texas politics. He has been active in a myriad of campaigns, including statewide, legislative and judicial races. There is not a person in our state who is more knowledgeable and skilled about Texas politics or more respected by elected officials.�

�It has been an honor to be part of a team of Texans with such incredible integrity, character and civic virtue as the leadership and staff of TLR.�
� Matt Welch

Richard W. Weekley, Chairman & CEO of TLR, commented, �Matt has been a key to TLR�s success. He is conscientious, principled and exceptionally capable. All of us value Matt�s contribution to our organization � he is a person you can count on, no matter how tough the going or how strenuous the effort. We are thankful that Matt has been with us as PAC Director and we look forward to his contributions to the Texas civil justice system as a consultant to Texans For Lawsuit Reform.�

Ken Hoagland has overseen the full scope of TLR�s communications efforts and media relations, and has been TLR�s most active participant on the speaking circuit, including radio talk shows and face-to-face debates with plaintiff lawyers. Under his leadership, TLR has gone toe-to-toe with the well-funded media efforts of the plaintiffs� bar, and our message has been vigorously presented to the Texas and national media. Ken established his consulting practice earlier this year.

TLR�s Senior Chairman, Leo Linbeck, Jr., observed, �Ken�s leadership in public relations has been a crucial ingredient in achieving the legislative successes of the last decade that are making our civil justice system more fair and balanced. You cannot win in the Legislature if you do not first win in the minds of the citizens of Texas. Ken has not only been brilliant in countering the misinformation campaign by the plaintiffs� bar but in stating the positive message that tort reform improves respect for the law, encourages job creation and product innovation, and favors consumers by reducing the �tort tax� on products and services.�

Dick Weekley commented, �I am delighted that Ken will continue representing TLR on the speaking circuit and will be a key advisor on all public relations matters.�

Texas Ranks �Best in the Nation� in Tort Liability Index but Report Shows More Reforms are Needed
By Dick Weekley

A cutting edge report just released shows that while Texas still has some glaring civil justice problems to address � most notably the state�s notorious �judicial hellholes� � Texas tort reforms have strengthened the state�s economy in a variety of ways and are improving the quality of life for every Texan.

For example, the benefits of the medical liability reforms in HB 4 enacted in 2003 became apparent almost immediately, particularly in South Texas, where doctors had become increasingly scarce and specialists were practically non-existent.

Liability insurance rate relief turned that situation around and doctors are now establishing practices in previously underserved areas throughout the state. The Texas Medical Board is anticipating a record 4,000 applications for new physicians� licenses next year � twice last year�s total and 30 percent more than the previous best year for the state.

But improved patient access to health care and lower insurance costs for doctors, hospitals and nursing homes are not the whole tort reform story.

The Pacific Research Institute (�PRI�) in San Francisco has completed the first �U.S. Tort Liability Index: 2006 Report,� a comprehensive analysis comparing the tort systems of all fifty states. After weighing 39 variables ranging from caps on punitive damages to appeal-bond caps, Texas was ranked best in the nation. Had the study been done before the 2003 tort reforms, researchers say the state would have ranked 26th.

A fair and predictable civil justice system is key to our state�s strong economic competitiveness. Texas reforms have already started to bring about lower prices, higher job creation, better wages, and more product innovation throughout the state.

Texas ranked highest (best) in categories of the study that measured declining financial losses linked to nonmeritorious lawsuits. Hospital liability insurance costs drive this point home. After a 54 percent rate hike in 2003, Texas hospitals got a 17 percent cut in 2004 and more premium reductions have followed.

Thirty new companies are now writing physician liability coverage in Texas and Texas doctors are expected to save $42 million on their 2006 liability insurance premiums.

Non-meritorious health care lawsuits have been cut in half and hospital savings are being plowed into a variety of health care service enhancements ranging from the development of electronic medical records systems to the recruitment of more specialist physicians.

Nationally, the researchers at PRI found that excessive tort costs in the United States impose a �tort tax� of $2,654 per year for a family of four. But Texans are now paying a smaller �tort tax,� due to our lawsuit reforms, and this should improve since there are still many lawsuits in the system that commenced before the reforms took effect.

It is important to note that the PRI study is not all rosy for Texas. The report particularly lamented Texas� �judicial hellholes� � those courthouses in the state that plaintiff attorneys choose to file lawsuits because they consider the judges and juries to be particularly �friendly� to their claims. These �judicial hellholes,� two of which are identified as the Rio Grande Valley and the Gulf Coast of Texas, are described in the report as far more likely to grant improper certification of class action law suits, to allow the presentation of junk science and other improper evidence to the jury, and to tolerate strong alliances between plaintiffs� lawyers and judges. The U.S. Chamber of Commerce and the American Tort Reform Association also criticize Texas for allowing these �judicial hellholes.�

Texas ranked last (worst) on several other factors measured by the tort liability study, including the state�s failure to impose limits on attorneys� contingency fees and the failure to inform jurors about payments made to the plaintiff from various sources, such as payments received from insurance companies or government programs such as Medicare.

Our partisan election of judges also earned Texas the worst rank of �50� on the liability index. According to the report, �when judges act as politicians in robes, the civil-justice system is further eroded.� Certainly, most men and women of high integrity and sound judicial temperament loath the need to solicit campaign funds in order to win or hold a judicial position.

The report should make all TLR supporters proud of the reforms that we have advocated, but the pressing concerns highlighted in the report must also steel our commitment to finishing the work of lawsuit reform in Texas. The U.S. Tort Liability Index highlights key incentives for creating a fair and balanced civil justice system � the integrity of the system itself, economic prosperity, and a better life for every Texan. Much has been done, but there is much yet to do.

TLR Around the State

In April, TLR traveled to Wichita Falls to honor Rep. David Farabee. Approximately 120 guests joined TLR and the Wichita Falls Board of Commerce and Industry in presenting the TLR Civil Justice Leadership Award to Rep. Farabee for his solid support of reforms that are helping to restore fairness, balance and predictability to the Texas civil justice system. TLR�s Regional Co-Chairmen, Bill Daniel and Dr. Cameron Godfrey, were instrumental in assuring a strong turnout for the event.

Our Speaker�s Bureau gave 20 speeches in May alone, and 40 speeches are already scheduled for the summer. We have given over 100 speeches this year all over Texas. Kudos to our volunteer Speakers who keep this momentum going and who are instrumental in building TLR�s grassroots strength in towns and cities throughout our state. And congratulations to longtime TLR Speaker Patricia Harless, who won the Republican nomination for the Texas House of Representatives seat in north Harris County being vacated by the retirement of Rep. Peggy Hamric, who has been a strong supporter of tort reform throughout her career.

TLR supporters help our cause in many ways. Some contribute their time and talent, as they do when they speak to interested groups or visit with their legislators at home or in Austin. Thousands of Texans support TLR through financial contributions. We are often asked, �What is the source of your funding?� We proudly answer that our funds come from small businesses and Fortune 500 companies, from professionals, and from working men and women throughout Texas.

Dick Weekley has been busy this spring raising money for the TLR Political Action Committee. All funds contributed to the PAC must come, by law, from individuals � no corporate contributions are permitted to political action committees. We are grateful to those who have opened their homes to our fundraising efforts so far this year: in San Antonio, Peggy and Lowry Mays, with Senator John Cornyn as special guest; in Dallas, Myra and Bob Schelegel, with Speaker Tom Craddick and Nadine Craddick as special guests; and in Austin, Beth and Tom Granger, with Governor Rick Perry as special guest. Thank you, all!

The summer convention season kicks off with the Republican Party of Texas in June in San Antonio. Beverly Kishpaugh, Justin Unruh, and Mary Tipps will man the booth, and they look forward to visiting with many of the 10,000 political activists who are expected to attend.

In July, TLR will travel to San Francisco for the American Legislative Exchange Council convention, where we will host a dinner for Texas legislators. In August, it�s on to Nashville for the National Conference of State Legislators convention. Texas� own Leticia Van de Putte, state senator from San Antonio, is president of the NCSL this year. These conferences provide invaluable opportunities for TLR members to visit with our state legislators in a relaxed setting.

Texas Supreme Court Improves Process for Selecting Jurors

Introduction

Texans For Lawsuit Reform believes that there are three ingredients to a fair and efficient civil justice system: balanced and sensible statutory law, impartial, competent and honest judges, and unprejudiced juries. TLR pays close attention to each of the three ingredients, which is why we filed an amicus curiae (�friend of the court�) brief to the Texas Supreme Court in Hyundai Motor Co. v. Vasquez. The TLR brief addressed the significant issue of whether a prospective juror can be disqualified based on a �voir dire� question that tests the juror�s possible verdict on a single, case-specific fact. �Voir dire� refers to the questioning of prospective jurors by the attorneys prior to the selection of the actual jury that hears the case.

The purpose of voir dire examination is to protect the right to an impartial jury by exposing possible improper juror biases that, by law, require the disqualification of the juror (known as a �for cause� removal of a juror). Thus, as the Texas Supreme Court has observed, �the primary purpose of voir dire is to inquire about specific views that would prevent or substantially impair jurors from performing their duty in accordance with their instructions and oath.�

The reason TLR weighed in on the issue of voir dire questioning of prospective jurors is that some lawyers use voir dire examination to unfairly manipulate the jury selection process. They do this by asking cleverly selected questions about case-specific facts and then getting the trial judge to dismiss jurors �for cause� who give undesirable answers. This manipulation of voir dire often produces a jury that is skewed from the outset to favor the plaintiff instead of producing a jury that is fair and impartial.

The Supreme Court�s decision in Hyundai holds that a trial court has the discretion to prohibit voir dire questions that preview relevant evidence and inquire of prospective jurors whether that evidence is outcome determinative. Appropriately, the Court found that �fair jurors do not leave their knowledge and experience behind� and held that a prospective juror is not disqualified from service simply because he or she believes that some facts are more important than other facts.

The Hyundai opinion substantially limits the ability of lawyers to unfairly shape a civil jury by disqualifying prospective jurors who view some evidence as more important than other evidence. TLR concurs with the Court�s reasoning, which is consistent with the basic approach advocated in TLR�s amicus brief.

Factual and Procedural Background

Sadly, four-year old Amber Vasquez, who was riding in the front passenger seat of a Hyundai automobile, was killed in a low-speed accident when the passenger-side airbag deployed with enough force to break her neck. It was undisputed that Amber was not wearing her seat belt at the time of the accident, even though state law requires that passengers in the front seat be belted. Upon impact, Amber was thrown forward because she was not wearing a seat belt, the airbag deployed, and Amber�s neck was broken.

Amber�s parents sued Hyundai, contending that the airbag deployed with too much force. Hyundai responded that the airbag was not defective and that a child wearing a seat belt would not have been injured by the airbag�s deployment.

During voir dire examination of the jury panel, the plaintiffs� lawyer asked the potential jurors: �Is there anyone here that regardless of what the evidence is, once you hear [Amber] wasn�t wearing a seat belt, your mind is made up?� Twenty-nine of 48 prospective jurors answered affirmatively. The trial judge dismissed all jurors and seated an entirely new panel.

Texans For Lawsuit Reform believes that there are three ingredients to a fair and efficient civil justice system: balanced and sensible statutory law, impartial, competent and honest judges, and unprejudiced juries.

During the voir dire of the second panel, the trial judge told the prospective jurors that Amber was not wearing a seat belt and asked if any of the jurors would decide the case �based on that one fact alone.� Eighteen of 52 jurors responded affirmatively. Once again, the trial court dismissed all prospective jurors and seated a new panel.

During voir dire of the third panel, the trial judge allowed the lawyers to ask �general questions� about seat belt use (such as, did the jurors fasten their seat belts before leaving their driveways), but would not allow casespecific questions about Amber�s non-use of a seat belt. This time, a jury was empaneled and ultimately returned a verdict in favor of defendant Hyundai. The court of appeals reversed, holding that the trial court erred in disallowing questions about Amber�s non-use of a seat belt. The Supreme Court reversed the court of appeals decision and upheld the trial judge�s refusal to allow the voir dire question requested by the plaintiffs� lawyer.

Texas Supreme Court�s Analysis

The Texas Supreme Court began its analysis by noting that Texas law provides that a person is disqualified from jury service if the person �has a bias or prejudice in favor of or against a party in the case� and that voir dire is properly used by attorneys to identify whether prospective jurors have a disqualifying bias or prejudice. The Court also noted that it had previously held that it is improper to ask prospective jurors what their verdict would be if certain facts were proved, but that it had not previously considered whether it is improper for an attorney to ask questions addressed to the weight a juror would give a relevant fact. In other words, the issue before the Court in Hyundai was whether a trial judge could disallow a question asking a prospective juror whether he or she would give greater weight to a particular fact than to another fact or to all other facts combined.

�The primary purpose of voir dire is to inquire about specific views that would prevent or substantially impair jurors from performing their duty in accordance with their instructions and oath.�
� Texas Supreme Court

The Court concluded that questions about the weight jurors will give a particular piece of evidence can represent an effort to skew the jury. Additionally, inquiring whether jurors can be fair after isolating one relevant fact confuses jurors. Courts properly instruct jurors that statements made by lawyers in voir dire do not constitute evidence, yet jurors must answer whether they can fairly listen to all of the evidence based only upon the selected facts that the lawyers reveal in voir dire. In responding to voir dire questions, jurors base their responses only on the facts presented to them during voir dire and do not have before them other relevant facts that will emerge during trial, yet those additional facts, if known, might alter their responses to voir dire questions, as well as their ultimate determination of the case if they sit on the trial jury.

Based on these considerations, the Supreme Court held that a trial court can refuse to allow a question that seeks to determine the weight to be given, or not given, a particular relevant fact or set of facts. If the trial court allows such a question, however, then the jurors� responses cannot be used to disqualify them because the answers do not reveal an improper bias or prejudice. According to the Court, it is within a juror�s province to conclude that a single admissible, relevant fact overcomes all others. �Fair jurors do not leave their knowledge and experience behind.� They simply �must approach the evidence with an open mind.�

Conclusion

A trial court has the discretion to prevent questioning of prospective jurors that is designed to pre-test jurors� opinions about case-specific evidence. But if the court allows that questioning, a lawyer cannot use a juror�s response to disqualify an otherwise qualified juror � in other words, the lawyer cannot have that juror dismissed �for cause� but, rather, must use one of his limited peremptory �strikes� to exclude that juror, if he so chooses. The Hyundai decision complements the Court�s ruling in Cortez v. HCCI-San Antonio, Inc., 159 S.W.3d 87 (Tex. 2005), which adopted the general rule that it is improper for lawyers in voir dire to ask prospective jurors what their verdict would be if certain facts were proved.

These two Supreme Court cases go a long way toward allowing honest and competent trial judges to curb some of the worst abuses in the voir dire process. The purpose of voir dire, when properly conducted, is to empanel a fair and impartial jury, not to manipulate �for cause� challenges in a way designed to choose a jury that favors a particular party.

Doctors Ranks Grow with the Passage of Proposition 12
By Drs. Howard Marcus and Bruce Malone

A year ago April, the American Medical Association removed Texas from its list of states in liability crisis, making it the only state ever to be removed from the list.

Clearly, Texas� 2003 health care liability reforms are delivering on their promise: stabilized insurance rates for physicians and increased patient access to care. Sick or injured Texans today can see far more medical specialists and emergency care physicians than they could two and a half years ago.

Prior to the passage of Prop 12, Texas was losing high-risk specialists such as orthopedic surgeons, neurosurgeons and obstetricians. To avoid the risk of a lawsuit, many physicians cut back on high-risk and life-saving care or steered clear of emergency calls. Even worse, some doctors found it prudent to step away from their practice.

For example, in the two years before Prop12 passed, 16 obstetricians retired, left the community or stopped delivering babies in Austin alone. On May 19, 2002, the Austin American-Statesman reported about a Central Texas man who �fell from an oak tree and broke his back [and then] took a bewildering journey that ended nearly nine hours later in a city 65 miles away� because a neurosurgeon was not on-call for an Austin hospital emergency room that day. The Statesman endorsed Prop 12, �in hopes that it would work as advertised � reduce medical malpractice insurance premiums�that have limited the willingness of some doctors to practice in certain areas of the state or certain types of high-risk medicine.� Those hopes have been realized. Austin has regained the 16 obstetricians it lost and has added, among others, three pediatric cardiologists, two cardiovascular surgeons, a neurosurgeon and 24 emergency medicine specialists.

Hospitals across the state were turning away ambulances due to a critical shortage of doctors and nurses as liability costs rose as much as 50 percent in a single year. This was especially true in medically underserved areas of the state like Beaumont, Corpus Christi, Victoria and the Rio Grande Valley. But an amazing turnaround is occurring across Texas, with a statewide gain of 127 orthopedic surgeons, 146 obstetricians, and 25 neurosurgeons. We�ve also seen substantial increases in hard-to-recruit children�s doctors such as pediatric cancer physicians, pediatric endocrinologists, child neurologists, and doctors who specialize in newborns and premature infants.

The ranks of Texas physicians are on the rise primarily because the liability rates they pay are on the decline. All five of Texas� leading physician liability carriers have cut their rates since passage of Prop 12 � most by double-digits.

Be assured, patients are free to seek the services of attorneys now just as they were before the passage of the 2003 reforms. The new law has no limitation at all on damages for past and future medical bills, lost earnings, in-home assistance or other economic damages. The cap is only on non-economic damages such as physical pain and emotional distress, which are highly subjective and are referred to as �soft damages.� The �soft damages� component of verdicts had increased dramatically prior to the passage of the 2003 reforms. But the state�s largest insurer of physicians reports that its average paid claim falls well below Prop 12�s cap on non-economic damages, indicating that Prop 12 does not impact most medical liability claims. If some plaintiff lawyers are now taking fewer cases it is because the chances for a runaway verdict in medical cases have been reduced.

Physicians want to take on the challenge of caring for the seriously ill. Obstetricians want to deliver babies and trauma specialists want to help injured patients. Because our elected officials enacted tort reforms and because the people of Texas confirmed the reforms by voting in favor of Prop 12, Texas doctors today can confidently do what we do best � treat patients.

Dr. Howard Marcus is an Austin internist and the chairman of the Texas Alliance For Patient Access. Dr. Bruce Malone is an Austin orthopedic surgeon and member of the Texas Medical Association Board of Trustees.

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2007-08-19T19:41:00.000-07:00