Attorney Blog

Jury Avenges Tort Reform in Business Litigation Case

bdurrett@sbcglobal.net (Blog Author)27936 — Tue, 09 Mar 2010 08:00:00 EST

Wayne Slater wrote an article for the Dallas Morning News in which he accurately describes the reasoning behind the $58 million verdict rendered against Perry Homes earlier this week. The jury was outraged by Perry Homes manipulation of the litigation process.

A retired couple, the Culls, sued Perry Homes over a decade ago. After engaging in pre-trial discovery, they decided to use arbitration to resolve the dispute. The arbiter awarded the couple $800,000. Perry appealed the arbitration decision through the state courts all the way to the Texas Supreme Court. Ultimately, the Texas Supreme Court vacated the arbiter's award stating that the Culls waived their rights to arbitration. The case was remanded to state district court for trial. Last week, over two years since the decision in the Texas Supreme Court, the Ft. Worth area jury spoke.

Perry Homes claims it is the victim of "jackpot justice" and vows an appeal. However, Perry's characterization ignores the fact that the Culls have been waiting over a decade for their day in court during which time the litigation process has cost them their savings and their health. They have had to live in a home with a broken foundation, cracked walls, windows that will not open and joists that move. Unfortunately, the Culls are not the only Texans worked over by the litigation process. Many other Texas have experienced the same business litigation process only to escape with less than full justice.

Bob Perry is one of the largest homebuilders in Texas. He is also on the largest donators to judicial and state political campaigns in Texas. He is a major figure in the effort to limit lawsuits and cap jury awards against business. According to the Dallas Morning News, he has donated to the judicial campaign of every judge on the Texas Supreme Court. In part, the twisted litigation process that allowed Perry Homes to work over the Culls was created by Bob Perry's political donations and ideas.

Despite all of its wealth and influence, a jury has held Perry Homes accountable for its actions against the Culls. Yet, it remains to be seen whether the Culls will ever receive a dime. The jury's verdict amount could be reduced by the trial court. If judicial errors were made, the verdict could be thrown out. The appellate review process could last for years. Only then can the Culls evalute whether it was worth it.

Judge Kevin Fine rules death penalty unconstitutional

bdurrett@sbcglobal.net (Blog Author)27755 — Fri, 05 Mar 2010 08:00:00 EST

I am not a criminal lawyer. I have never practiced criminal law. But if the reports are true that state court district judge Kevin Fine ruled the death penalty unconstitutional, I urge fellow voters to remove Judge Fine from the bench. It is simply inconsistent with the public trust to willfully refuse to follow the existing law because of personally held political views. Judge Fine's ruling has delayed justice for the family of the victims killed by the murderer who now seeks to live.

Texas Offer of Settlement Rule

bdurrett@sbcglobal.net (Blog Author)25414 — Thu, 21 Jan 2010 08:00:00 EST

An article on Law.com discusses the unintended consequences of Florida's procedural offer of settlement law in tobacco litigation. As originally enacted, the procedural rule was designed to encourage settlements. However, in practice, the tobacco companies are using the rule to shift the defense costs of tobacco litigation from the manufacturers to the smokers.

Litigants suing tobacco companies for wrongful death, negligence, fraud and deceit in cases potentially worth millions of dollars are receiving nominal settlement offers on their claims. The typical settlement offers are less than $1,000. If the claimants refuse to accept the nominal settlement and lose at trial, pursuant to the procedural rules, they become liable for the tobacco companies attorney's fees and litigation costs. The result of the rule is that smokers are refusing to prosecute lawsuits against tobacco companies for fear of being forced into financial ruin, if they lose.

In 2004, the Texas Supreme Court enacted procedural rules governing post filing offers of settlement similar to Florida's statute. In Texas, if a plaintiff rejects a settlement offer and does not recover a judgment that is at least 120% more than the rejected offer, the plaintiff can be liable for the defendant's reasonable attorney's fees, up to the cost of two expert witnesses and court costs. In my practice, I have not seen the offer of settlement rule used extensively. Accordingly, I do not have an opinion on it. However, in high stakes litigation, whether there is a significant chance of losing at trial, such as smoker litigation, the offer of settlement rule operates to effectively close the courthouse door to any would be plaintiffs.

State Farm Lloyds Appeals $310 Million Refund Order

bdurrett@sbcglobal.net (Blog Author)22923 — Sat, 05 Dec 2009 08:00:00 EST

The Houston Chronicle is reporting that State Farm Lloyds has filed an appeal to a Texas Department of Insurance order to pay home insurance policyholders $310 million in refunds and interest for alleged overcharges going back as far as 2003.

Spokesman Kevin Davis says Texas' largest home insurer filed a motion for a rehearing with the Texas Department of Insurance.

Davis says the company also plans to file an appeal in Travis County district court.

Texas Insurance Commissioner Mike Geeslin issued the repayment order last week saying it completes reforms started six years ago by Texas lawmakers.

The order stems from a 6-year-old case in which regulators ordered the company to cut its rates 12 percent.

The appeal will halt repayments until the courts resolve the case.

DTPA Lawsuit Settled For $4,850,000

bdurrett@sbcglobal.net (Blog Author)22449 — Wed, 25 Nov 2009 08:00:00 EST

On November 24, 2009, The Houston Chronicle reported that Conn's has agreed to pay $4,500,000 to settle a lawsuit brought by the Texas Attorney General's Office after receiving 3,500 complaints about the electronics retailer. The settlement money will go toward a restitution fund on behalf of defrauded customers. In addition, Conn's has agreed to pay $250,000 in attorney's fees and $100,000 to the University of Houston Law Center - Center for Consumer Law.
Despite the settlement, Conn's continues to deny liability even going as far as to say that the "... suit was without merit...". The Attorney General filed suit in May, 2009. Among other things, the Chronicle reports that it is alleged that Conn's failed to honor warranties, deceptively exchanged refurbished products as new, did not repair items promptly, and refused to give refunds or replace defective products.

One of the legal theories for the lawsuit was for violations of the Texas Deceptive Trade Practices Act. The Act provides statutory remedies for various misrepresentations and breach of warranties. In addition to actual damages, the DTPA allows consumers to recover their attorney's fees for violations of the DTPA. If "knowing" conduct is involved the trier of fact may award up to three times actual damages as well as damages for mental anguish.

From the article it appears Conn's remains recalcitrant. Seriously, if Conn's makes a practice of settling meritless claims for nearly $5,000,000, it will soon go broke.

Fatal Houston Car Accident Involving Stalled Car

bdurrett@sbcglobal.net (Blog Author)20181 — Sat, 17 Oct 2009 08:00:00 EST

The Houston Chronicle is reporting that Quineisha Callahan, a rear seat passenger in a black Mercury Cougar, died on October 16, 2009 after the car she was riding in with two others stalled on I-45 at the Pierce Elevated at 3:00 o'clock a.m. A Ford F-150 pickup slammed in the back of the stalled car. The driver and front seat passenger of the Mercury Cougar were taken with non-life threatening injuries for treatment at Ben Taub General Hospital. The driver of the Ford F-150 pickup was also seriously injured.

I offer my condolences to the family and friends of Quineisha Callahan. Please keep them in your prayers.

According to the 2008 Texas Department of Transportation Motor Vehicle Crash Statistics, there were 216 deaths and 6,942 serious injuries in Houston car accidents. In Harris County, as whole, there were 360 fatalities and 11,068 serious injuries involving car accidents in 2008. Statewide in 2008, there were 12 fatal crashes and 162 serious injury crashes resulting from being parked in a traffic lane.

This accident is still being investigated. but the news reports have not provided many details. I would like know why the stalled Mercury Cougar was not driven to the shoulder of the highway. Were the Mercury Cougar's emergency lights flashing? Were alcohol or drugs involved? Was Ford F-150 truck driver's view of the Cougar obstructed or was he traveling to close to the car? The answers to these and other questions will determine if there is any negligence involved in the Houston car accident and on whose part. Car accident victims and/or their family members will be well served to contact an experienced Houston car accident attorney, who will help investigate the circumstances of the accident and determine where fault lies. If negligent parties are involved, they should be held accountable.

Conroe Car Accident Kills Three

bdurrett@sbcglobal.net (Blog Author)20179 — Sat, 17 Oct 2009 08:00:00 EST

According to an ABC news report, on Friday, October 16, 2009, at around 10:15 a.m. a major car accident occurred in Conroe, Texas at the intersection of FM 1314 (Porter Road) and Loop 336. Apparently a Mazda was traveling northbound on FM 1314 when a Dodge Ram 3500 pickup truck traveling east on Loop 336 ran a red light where the roads intersected. The Dodge pickup truck struck the side of the Mazda and pushed it into a Mercedes in the westbound lane of 336 waiting to turn onto FM 1314. A fourth vehicle was involved in the accident when the Mercedes was pushed into it. According to the police, witnesses say that the driver of the Dodge pickup truck, 18 year old Casey McKinley, was traveling at a high rate of speed.

The dead are identified as Splendora, Texas residents: Craig Rector, 50, his daughter, Felicia Hicks, 20, and her husband, Freedom Fitch, 24. Hicks and Fitch have a two year old daughter, Anabelle, who was not with them at the time of the automobile crash. McKinley, the driver of the Dodge pickup truck and the driver of one of the other vehicles were taken by ambulance to a local hospital. McKinley was arrested and charged with three counts of manslaughter.

According to the 2008 Texas Department of Transportation Motor Vehicle Crash Statistics, there were 16 deaths and 387 serious injuries in Conroe. In Montgomery County, as whole, there were 67 fatalities and 1,779 serious injuries involving car accidents in 2008.

What a tragedy! I offer my deepest condolences to the family and friends of Craig Rector, Felicia Hicks and Freedom Fitch. This needless and senseless accident did not have to happen. It has caused endless pain and misery for those involved. Young Annabelle is now an orphan and will have to be reared by family and friends of the deceased. Casey McKinley is facing criminal prosecution. Aside from having to answer to the law, he will have to live with the events of this day for the rest of his life. The community, as a whole, and the families of those involved have suffered a terrible loss.

Baytown Car Accident Kills Three

bdurrett@sbcglobal.net (Blog Author)19279 — Wed, 30 Sep 2009 08:00:00 EST

Aaron Lee Bishop, 23, Marshall Donnie Head III, 20, and Matthew Cole Smith, 24, were killed on the early morning of September 30, 2009 on Bayway near Park in Baytown, Texas. An ABC News report stated that a vehicle traveling north on Bayway attempted to pass two other vehicles at a high rate of speed, according to police. Apparently, the vehicle went across both oncoming lanes of traffic before over-correcting and coming back across the roadway. The vehicle rolled over at least once and came to rest in a ditch on the roadway. The people in all three cars knew one another and Baytown Police are still investigating to get a better idea of what happened.

I offer my deepest condolences to the relatives and friends of the Bishop, Head and Smith families. Please keep them in your prayers.

According to the 2008 Texas Department of Transportation Motor Vehicle Crash Statistics, there were 15 deaths and 318 serious injuries in Baytown. In Harris County as whole, there were 360 fatalities and 11,068 serious injuries involving car accidents in 2008.

This news report has very little information about the circumstances leading to this fatal Baytown car crash. There is no mention of the involvement of alcohol or driver error/distraction in this car crash. I hope investigators are looking into whether there was any mechanical malfunction in the car, which caused the driver to lose control. There are other questions that arise here. What brand and model of car was being driven? Did another vehicle cause the car crash? Was there a dangerous condition on the roadway that may have caused or contributed to the Texas car crash? The answers to these questions will help determine who or what caused this tragic car accident and whether there was any negligence or wrong doing involved. Car accident victims and/or their family members will be well served to contact experienced Harris County car accident attorneys, who will help investigate the circumstances of the accident and determine where fault lies. If negligent parties are involved, they must be held accountable.

Extreme Makeover To Rebuild Home Damaged By Ike

bdurrett@sbcglobal.net; brantdurrett@gmail.com (News Author)12293 — Thu, 21 Jan 2010 08:00:00 EST

Kemah family to be featured on Extreme Makeover: Home Edition

Houston Business Journal

A Kemah family whose house was severely damaged by Hurricane Ike had their home rebuilt as part of the largest project for national reality television show, Extreme Makeover: Home Edition.

When Melissa and Larry Beach returned to their home in Kemah after evacuating due to Hurricane Ike, they found that their house had been severely damaged by flooding and wind.

High school sweethearts Melissa and Larry Beach have fostered 80 children in their 23 years of marriage.

FEMA gave the family of 15, including 13 children, two trailers for about a year. Since the fall of 2009, the Beaches have been living out of one small trailer in their backyard.

ABC's Extreme Makeover: Home Edition and volunteers began the process of building a new home for the Beach family in Kemah on Jan. 7. The reveal of the 6,300-square-foot home took place a week later. The episode featuring the new home will air in March.

The Beach family was nominated for the rebuild project by the Kemah city council, state representatives and local congressmen.

Stafford-based Cosentino, maker of Silestone natural quartz, donated Silestone surface applications to all homes rebuilt as part of Extreme Makeover: Home Edition this season at a value of about $500,000.

Cosentino employees and executives also were personally involved in the buildout of the Beach home.

Blu Shields Construction, a division of Texas City-based Energy Solution Homes, also partnered with Extreme Makeover: Home Edition

TWIA Stands By Work Product Privilege In Hurricane Ike Litigation

bdurrett@sbcglobal.net; brantdurrett@gmail.com (News Author)12153 — Mon, 11 Jan 2010 08:00:00 EST

An interesting article appeared in the Southeast Texas Record on January 7, 2010. In Hurricane Ike litigation, TWIA has raised the work product privilege as an excuse to refuse to produce documents containing communications between its representatives in relation to probable Hurricane Ike litigation.

Conversely, the attorney for the League City plaintiff asserts that TWIA can not raise the work product privilege to cover documents containing communications between TWIA's representatives prior to the time TWIA anticipated litigation in the case.

In this case, TWIA asserts that it anticipated litigation prior to Hurricane Ike making landfall because of its experience handling prior Texas hurricanes.

The work product privilege is a privilege that exists to protect communications between a party and its representatives and only applies to materials prepared, mental impressions developed, and communications made in anticipation of litigation or for trial. The primary purpose for the work product privilege is to protect the mental processes, conclusions and legal theories of the attorney and provide a privileged area so the attorney can analyze and prepare the case for trial.

Texas Rule of Civil Procedure 192.5(a) states that to qualify as work product, materials must have been prepared or mental impressions developed in anticipation of litigation or trial - that is, after the occurrence or transaction on which the suit is based.

In most first insurance party claim cases, the date of occurrence can not arise prior to the carrier's denial of coverage. Thus, I anticipate that the court will rule that all documents containing communications between TWIA's representatives in relation to probable Hurricane Ike litigation, but that occurred prior to the denial of insurance coverage will be ruled discoverable.

J. Brantley Durrett, III Inducted into the Million Dollar Advocate Forum

bdurrett@sbcglobal.net; brantdurrett@gmail.com (News Author)11733 — Thu, 17 Dec 2009 08:00:00 EST

J. Brantley Durrett has been inducted into the Million Dollar Advocates Forum. Established in 1993, the Million Dollar Advocates Forum is one of the most prestigious groups of trial lawyers in the United States. Membership is limited to attorneys who have won million dollar verdicts and settlements. There are over 3000 members throughout the country. Fewer than 1% of U.S. lawyers are members.