Trial Appellate

Trial Appellate Matters

Triple-fatality pickup truck accident allegedly caused by road defect: (Christine Borrego, et al., v. CEMEX Construction Materials, LLC, Cause No. 2017-DCV1047, in the 327th Judicial District Court of El Paso County, Texas (4/9/19—4/22/19, 9 trial days)).  I represented CEMEX Construction Materials Pacific, LLC, one of the world’s largest cement companies, as lead trial appellate counsel.  Lead plaintiffs’ attorney was Enrique Moreno, Law Office of Enrique Moreno, El Paso, Texas.  This case arose from a pickup truck rollover accident in which three of the occupants were killed and two more were injured.  Plaintiffs were the surviving parents, spouses, and children of the three decedents, and the two injured occupants.  The accident occurred on an unmarked 90-degree curve on a private road owned by CEMEX.  Plaintiffs alleged that the curve was an “unreasonably dangerous condition” and they sued CEMEX under theories of premises liability, negligence, and gross negligence.  The jury returned a verdict attributing some liability to CEMEX and some to the driver.  The amount of damages against CEMEX was far below the plaintiffs’ pre-suit settlement demand.

Country club allegedly negligent for allowing 12-year olds to drive golf carts:  (Kevin Bowden v. Center Country Club, Inc., Cause No. 342-288728-16, in the 342d Judicial District Court of Tarrant County, Texas (3/18/19—3/26/19, 6 trial days)).  I represented defendant Center Country Club as lead trial appellate counsel.  Plaintiff’s lead trial counsel was Carl David Adams, Law Office of Carl David Adams, Dallas, Texas.  Minor plaintiff Kamren Bowden suffered a severe leg fracture on the premises of Center Country Club when a golf cart in which he was riding overturned.  He sued Center Country Club for unreasonably dangerous cart paths and for allowing 12 year olds to drive golf carts at the Club, under theories of premises liability, negligence, and gross negligence.  The jury returned a defense verdict, and the court entered a take-nothing judgment in favor of Center Country Club.

Teenage girl died in vehicle accident on defendant’s premises:  (Javier Ochoa, et al. v. CEMEX Construction Materials Pacific, LLC, et al., Cause No. 2016-DCV-4685, in the 384th Judicial District Court of El Paso County, Texas (1/7/19-1/8/19, 2 trial days)).  I represented CEMEX Construction Materials Pacific, LLC, one of the world’s largest cement companies, as lead trial appellate counsel.  Lead plaintiffs’ attorney was Humberto Enriquez, El Paso, Texas.  Plaintiffs, the surviving parents of a teenage girl who died in a one-vehicle accident that occurred on a private road owned by CEMEX, sued CEMEX for wrongful death under a premises liability theory, alleging that a 90-degree turn in the road was an “unreasonably dangerous condition.”  The case settled after two days of trial.

Traumatic brain injury allegedly caused by seatbelt defect:  (Madison Garraway v. Ford Motor Company, Cause No. 631,668, in the 19th Judicial District Court for the Parish of East Baton Rouge, Louisiana, Section 24 (8/20/18-8/21/18, 2 trial days)).  I represented Ford Motor Company as lead trial appellate counsel.  Plaintiff’s lead trial attorney was Joe Ritch, Elliott Ritch, Corpus Christi, Texas.  Plaintiff suffered a traumatic brain injury in a rollover accident and alleged that the vehicle was not crashworthy because it lacked a seat-integrated restraint system.  The judge declared a mistrial on the second day of trial and the case was reset for a future trial setting.

Two-fatality pickup truck rollover allegedly caused by lack of electronic stability control:  (Maria Guadalupe Duren de Yepez, et al. v. Ford Motor Company, Cause No. C-3505-14-F, in the 332nd Judicial District Court of Hidalgo County, Texas (11/13/17-11/21/17, 7 trial days)).  I represented Ford Motor Company as lead trial appellate counsel.  Plaintiffs’ lead trial counsel was Ricardo Garcia, McAllen, Texas.  This case arose out of a double fatality rollover accident.  Plaintiffs, the surviving family members of the decedents, claimed that the vehicle was defective in its handling and stability characteristics, and because it lacked Electronic Stability Control.  The jury returned a defense verdict, and the court entered a take-nothing judgment in favor of Ford.

Negligent hiring and supervision case arising from auto-truck accident:  (James Mullins v. Viking Construction, Inc., et al., Cause No. D-1-GN-15-004009, in the 98th Judicial District Court of Travis County, Texas (11/6/17-11/9/17, 4 trial days)).  I represented defendant Viking Construction, Inc. as lead trial appellate counsel.  Plaintiffs’ lead trial attorney was Hayden Briggle, Briggle & Pollan, Austin, Texas.  Plaintiff was injured when a street sweeper driven by Viking’s employee hit plaintiff’s vehicle.  Plaintiff sued Viking the driver for negligence, and Viking for negligent hiring, training and supervision.  The jury returned a defense verdict, and the court entered a take nothing judgment for Viking.

Company’s inadequate cell phone policy allegedly caused death of young woman:  (Rosie Poy Gonzales, et al. v. Dynamic Industries, Inc., et al., Cause No. 2014-DCL-07648, in the 444th Judicial District Court of Cameron County, Texas (5/31/16-6/10/16, 9 trial days)).  I represented defendant Dynamic Industries, Inc. as lead trial appellate counsel.   Plaintiffs’ lead trial attorney was Tom Rhodes, Tom Rhodes Law Firm, San Antonio, Texas.  Plaintiffs were the surviving daughter and parents of a young woman who was killed when the driver of a Dynamic Industries work truck struck her vehicle while he was talking on a cell phone.  In addition to suing Dynamic under respondeat superior for the driver’s negligence, Plaintiffs contended that Dynamic was guilty of negligence and gross negligence for having a lax cell phone use policy for its drivers.  A high-low settlement agreement was reached during jury deliberations, and the jury verdict came in below the floor of the agreement. 

Automotive company refused to approve transfer of automotive dealership to buyers:  (Brazoria County Ford, L.P., et al. v. Ford Motor Company, Cause No. 30601, in the 23rd Judicial District Court of Brazoria County, Texas (5/9/16-5/17/16, 7 trial days)).  I represented Ford as lead trial appellate counsel.  Plaintiff’s lead trial attorney was Rodney Wiseman, Lake Jackson, Texas.  Plaintiff was a limited partnership that had been created to purchase and operate a struggling Ford dealership.  Ford refused to approve the purchase and transfer of the dealership, and Plaintiff sued Ford for intentional interference with its purchase contract, and for breach of the duty of good faith and fair dealing.  The jury returned a defense verdict, and the court entered a take-nothing judgment for Ford.  

Plaintiff appealed the judgment.  I served as lead appellate counsel for Ford.  The judgment for Ford was affirmed on appeal. (Brannan v. Ford Motor Company, 2018 WL 1057434 (Tex. App.—Houston [14th Dist.] 2018, no pet.)).

Injured woman claimed that pickup truck slipped into reverse and backed over her: (Peggy Chatelain v. Ford Motor Company, Cause No. 11-04-19861-CVR, in the 143rd Judicial District Court of Reeves County, Texas (4/7/14-4/10/14, 4 trial days)). I represented Ford as lead trial appellate counsel.  Plaintiff’s lead trial counsel was Philip Werner, Werner Ayers, Houston, Texas.  Plaintiff was severely injured when her truck rolled over her after she exited to change drivers. Plaintiffs alleged that the vehicle self-shifted to powered reverse due a defectively designed transmission. The jury returned a defense verdict for Ford, and the court entered a take-nothing judgment. 

Fatality case involving sudden acceleration claims and alleged seatbelt defects:  (Mary Tarango, et al. v. Ford Motor Company, et al., Cause No. 12-07-20190-CVR, in the 143rd Judicial District Court of Reeves County, Texas (2/3/14-2/10/14, 7 trial days)). This case was brought by the surviving wife, children, and parents of a man killed in a single-vehicle accident. Plaintiffs alleged that the accident was caused by a defectively designed transmission that caused sudden acceleration, and that decedent did not survive the crash due to defectively designed restraints. The jury returned a $5 million verdict for plaintiffs, and the court entered judgment for plaintiffs.  Ford appealed the judgment, and the case settled while the appeal was pending.

Traumatic brain injury allegedly caused by collapse of driver’s seat in rear-end collision:  (Pedro Cortes, et al. v. Ford Motor Company, Cause No. D-08-0476, in the 260th Judicial District Court of Orange County, Texas (11/4/13-11/19/13, 10 trial days)). I represented Ford Motor Company as lead trial appellate counsel. Plaintiffs' lead trial attorney was Paul "Chip" Ferguson, Provost Umphrey, Beaumont, Texas. Plaintiff suffered severe brain and orthopedic injuries when his truck was struck from behind at high speed and his seat collapsed rearward. Plaintiffs alleged that the seat and the vehicle's restraints were defectively designed. The jury returned a defense verdict for Ford, and the court entered a take-nothing judgment.

Teenage girl died due to alleged defect with vehicle’s side window glass:  (Lee Thompson, et al. v. Ford Motor Company, Cause No. 10-CI-02872, in the Jefferson County, Kentucky Circuit Court, Division 13 (3/12/13-3/25/13; 10 trial-days)). I represented Ford Motor Company as lead trial appellate counsel. Plaintiff's lead trial counsel was Tab Turner, Turner and Associates, North Little Rock, Arkansas. This case arose from a rollover accident in which a minor seated in the cargo area was ejected through a side window and died. Plaintiffs alleged that the vehicle was defectively designed in its handling and stability, and in its side window glass. The jury returned a defense verdict for Ford, and the court entered a take-nothing judgment.

Man killed when automobile he was servicing fell onto him due to allegedly defective tire-changing jack:  (Teresa Hendricks, et al. v. Ford Motor Company, Civil Action No. 4:12-CV-00071, in the United States District Court for the Eastern District of Texas, Sherman Division (10/22/12-11/1/12, 7 trial days)). I represented Ford Motor Company as lead trial appellate counsel. Plaintiffs' lead trial counsel was Geoff Henley, Henley and Henley, Dallas, Texas. Plaintiffs were the surviving wife and children of a man who died after his vehicle fell on top of him while he was working underneath it. The decedent was using the Ford-supplied tire-changing jack to supportthe vehicle when it fell on him. Plaintiffs alleged that the jack was defective in its design, manufacture and warnings. The jury returned a defense verdict for Ford, and the court entered a take-nothing judgment.

Rental van rolled backwards and killed man allegedly due to poorly-maintained parking brake:  (Ruth Moore, et al. v. U-Haul Company of Texas, Cause No. 2009-73631, in the 133rd Judicial District Court of Harris County, Texas (2/8/12-2/16/12, 6 trial days)). I represented U-Haul as lead trial appellate counsel. Plaintiffs' lead trial counsel was Patrick O'Hara, Lanier Law Firm, Houston, Texas. Plaintiff was the surviving wife of a man who was killed after a U-Haul rental van rolled over him after he exited the van. Plaintiffs alleged that the accident was caused by a faulty parking brake, and that U-Haul had negligently failed to maintain the parking brake and had failed to install a backup alarm on the van. The jury returned a defense verdict for U-Haul, and the court entered a take-nothing judgment.

Pickup truck rolled backwards and killed elderly lady, due to allegedly defective transmission:  (Estate of Carolina Muniz v. Ford Motor Company, Cause No. 10-07-20143-CV, in the 38th Judicial District Court of Medina County, Texas (11/28/11-12/9/11, 8 trial days)). I represented Ford Motor Company as lead trial appellate counsel. Plaintiffs' lead counsel was Scott Nealey, Lieff Cabraser, San Francisco, California. Plaintiffs were the surviving adult children of a woman who was killed when her truck rolled backwards over her after she had exited the vehicle. The plaintiffs alleged that the vehicle rolled due to a defectively designed transmission that allowed the vehicle to self-shift into powered reverse. The jury returned a defense verdict for Ford, and the court entered a take-nothing judgment. 

Plaintiffs appealed the judgment.  I served as lead appellate counsel for Ford.  The judgment for Ford was affirmed on appeal.  (Muniz v. Ford Motor Company, 2013 WL 2645284 (Tex. App.—San Antonio 2013, no pet.)).

Elderly man’s traumatic brain injuries allegedly caused by collapse of defectively weak driver’s seat after rear-end collision:  (John Holmes et al. v. Ford Motor Company, Cause No. D-173482, in the 136th Judicial District Court of Jefferson County, Texas (10/18/10-11/23/10, 26 trial days)). I represented Ford Motor Company as lead trial appellate counsel. Plaintiffs' lead trial counsel was Paul "Chip" Ferguson, Provost Umphrey, Beaumont, Texas. This case involved a rear end collision in which the driver's seat collapsed rearward and the driver suffered a traumatic brain injury and severe orthopedic injuries. Plaintiffs alleged that the seat of the vehicle was defectively designed. The jury returned a defense verdict for Ford, and the court entered a take-nothing judgment.

Wrongful death of woman allegedly due to multiple defects with vehicle, including handling, stability, window glass, and seatbelt:  (James Wiles, et al. v. Ford Motor Company, et al., Cause No. CC-03-10376-D, in the County Court at Law No. 4, Dallas County, Texas (3/23/09-5/7/09, 31 trial days)). I represented Ford Motor Company as lead trial appellate counsel. Plaintiffs lead trial counsel was Ted Lyons, Ted Lyons & Associates, Mesquite, Texas. This case arose from a single-vehicle rollover accident precipitated by a tire failure. Plaintiffs alleged that the vehicle was defectively designed in its handling and stability, and that the vehicle also had defectively designed restraints and side window glass that caused personal injuries to a front passenger, and the ejection and death of the rear passenger. The jury returned a verdict for plaintiffs, and the court entered an $8.6 million judgment against Ford. 

Ford appealed the judgment, and the Dallas Court of Appeals reversed the judgment and rendered judgment for Ford. (Ford Motor Company v. Wiles, 353 S.W.3d 198 (Tex. App.—Dallas 2011, pet. denied)).

Vehicle occupant ejected and killed allegedly due to lack of a side curtain rollover airbag:  (Etelvina Ortiz de Valdez, et al. v. Ford Motor Company, Civil Action No. DR-06-CA-087, in the United States District Court for the Western District of Texas, Del Rio Division (10/20/08-10/24/08, 5 trial days)). I represented Ford Motor Company as lead trial appellate counsel. Plaintiffs' lead trial attorney was Mikal Watts, Watts Law Firm, Corpus Christi, Texas. This case arose from a single-vehicle rollover accident in Mexico. Plaintiffs alleged that the subject vehicle was defectively designed because it lacked a side curtain rollover-activated airbag, allowing the driver to be ejected and killed. The jury returned a defense verdict for Ford, and the court entered a take-nothing judgment.

Teenage girl paralyzed in rollover accident, allegedly due to multiple vehicle defects:  (Willie Mason, et al. v. Ford Motor Company, et al., Cause No. 36,188, in the 82nd Judicial District Court of Falls County, Texas (2/5/08-2/13/08, 5 trial days)). I represented Ford Motor Company as lead trial appellate counsel. Plaintiffs' lead trial counsel was Robert Ammons, Ammons Law Firm, Houston, Texas. Plaintiffs alleged in a single-vehicle rollover accident that the subject vehicle was defectively designed in its handling and stability, restraints, side window glass, and roof structure. Plaintiffs alleged that these defects caused the rollover and the paraplegia of the minor driver. The case settled after 5 days of trial.

Wrongful death of driver from post-collision fire allegedly caused by defective fuel system:  (Debbie Hunter, et al. v. Ford Motor Company, Cause No. 2001-179-4, in the 170th Judicial District Court of McLennan County, Texas (10/29/07-11/9/07, 10 trial days)). I represented Ford Motor Company as lead trial appellate counsel. Plaintiff's lead trial counsel was Tracy Johnson, Johnson LLP, Kingwood, Texas. Plaintiffs alleged that a defectively designed fuel system in the subject pickup truck led to a post-collision fire that burned the driver to death. Ford received a unanimous defense verdict, and the court entered a take-nothing judgment. 

Plaintiffs appealed the judgment.  I served as lead appellate counsel for Ford.  The judgment for Ford was affirmed on appeal (Hunter v. Ford Motor Company, 305 S.W.3d 202 (Tex. App.—Waco 2009, no pet.)). 

Young boy partially ejected and killed due to vehicle’s allegedly defective handling, stability, window glass, seatbelt, and roof:  (Carlos Marroquin, et al. v. Ford Motor Company, et al., Cause No. 04-61218-1, in the County Court at Law No. 1, Nueces County, Texas (8/22/05-9/13/05, 16 trial days)). I represented Ford Motor Company as assistant trial appellate counsel. Plaintiffs' lead trial counsel was Mikal Watts, Watts Law Firm, Corpus Christi, Texas. Plaintiffs alleged that the vehicle's defectively designed handling and stability, restraints, side window glass, and roof caused the death of a minor passenger when the vehicle rolled over. Plaintiffs obtained a jury verdict, and the court entered a $24.8 million judgment against Ford, including both actual and exemplary damages.  The case settled post-verdict.

Appellate Matters

Statute of limitations/discovery rule:  (Sky Station Holdings v. Fidelity Nat’l Title Ins. Co., et al., __ S.W.3d ___ (Tex.App.—Austin ____, ____)).  I represented defendants Boris Serebro and Serebro Law in plaintiff’s appeal of summary judgment based on limitations on plaintiff’s claims of fraudulent concealment.  Appeal pending.

Tortious interference with contract:  (Brannan v. Ford Motor Company, 2018 WL 1057434 (Tex. App.—Houston [14th Dist.] 2018, no pet.)).  I represented Ford Motor Company in plaintiff’s appeal of an adverse jury verdict and judgment.  Plaintiff claimed that trial court erred in charging the jury and in granting Ford partial summary judgment on one of plaintiff’s claims.  Judgment affirmed (win).

“Other similar incidents” evidence:  (Estate of Muniz v. Ford Motor Company, 2013 WL 2645284 (Tex. App.—San Antonio 2013, no pet.)).  I represented Ford Motor Company in plaintiffs’ appeal of an adverse jury verdict and judgment.  Plaintiffs claimed that the trial court erred in excluding numerous alleged “other similar incidents” from evidence, among other appellate complaints.  Judgment affirmed (win).

Exclusion of expert and legal sufficiency of evidence:  (Brinker v. Jimmy Evans Co., Ltd., 370 S.W.3d 416 (Tex. App.—Amarillo 2012, pet. denied)).  I represented gravel pit owner and operator in plaintiff truck operator’s appeal of defense verdict and judgment, challenging sufficiency of evidence and trial court’s evidentiary rulings.  Judgment affirmed, and petition for review in the Texas Supreme Court denied (win).

Exhaustion of administrative remedies:  (In re New Hampshire Ins. Co., 360 S.W.3d 597 (Tex. App.—Corpus Christi 2011, orig. proceeding)).  I represented insurance company in original mandamus proceeding challenging trial court’s refusal to dismiss case for failure to exhaust administrative remedies.  Petition for mandamus relief denied (loss).

Duty of security company to protect patron:  (IPC Int’l Corp. v. Stockdale, No. 01-08-00192-CV (Tex. App.—Houston [1st Dist.] 2011)).  I represented security company in appeal of adverse jury verdict and multi-million dollar judgment in parking garage rape case.  Appeal settled at mediation after briefing.

Alleged juror misconduct:  (Hunter v. Ford Motor Company, 305 S.W.3d 202 (Tex. App.—Waco 2009, no pet.)).  I represented Ford Motor Company in plaintiffs’ appeal of an adverse jury verdict and judgment, based on lack of evidentiary sufficiency and alleged juror misconduct.  Judgment affirmed (win).

Economic loss doctrine:  (Murray v. Ford Motor Company, 97 S.W.3d 888 (Tex. App.—Dallas 2003, no pet.)).  I represented Ford Motor Company in plaintiff’s appeal of summary judgment based on the “economic loss doctrine.”  Judgment affirmed (win).

Propriety of no-evidence motion for summary judgment: (Parsons v. Ford Motor Company, 85 S.W.3d 323 (Tex. App.—Austin 2002, pet. denied)).  I represented Ford Motor Company in plaintiff’s appeal of no-evidence summary judgment based lack of expert testimony in support of claims.  Judgment affirmed, and petition for review in the Texas Supreme Court denied (win).

Exclusion of expert witness due to unreliability of opinions:  (Valero v. Ford Motor Company, 2001 WL 1617181 (Tex. App.—San Antonio 2001, no pet.)).  I represented Ford Motor Company in plaintiff’s appeal of trial court order excluding plaintiff’s liability expert based on lack of reliability of his opinions.  Judgment affirmed (win).

Insufficient evidence of causation:  (Ford Motor Company v. Gonzalez, 9 S.W.3d 195 (Tex. App.—San Antonio 1999, no pet.)).  I represented Ford Motor Company in appeal of jury verdict and multi-million dollar judgment in favor of plaintiffs.  Judgment affirmed (loss).

Summary judgment on a bank note:  (Priesmeyer v. Pacific Southwest Bank, F.S.B., 917 S.W.2d 937 (Tex. App.—Austin 1996, no writ)).  I represented bank in plaintiff’s appeal of summary judgment in favor of bank on note.  Judgment reversed (loss).