Justice Scott Brister would require trial judge to go after attorneys when blood cannot be drawn from dead malpractice plaintiff -- as punishment for bringing health care liability claim without expert report. Hecht would join in the blood-letting to further enfeeble the plaintiff's bar in the name of legislative intent and in denigration of "the American Rule" against fee recovery by prevailing defendants.
Gurkoff, D.O. v. Jersak, No. 08-0398 (Tex. Feb. 27, 2009)(Brister)(Dissent from denial of petition for review) (urging that sanctions in the form of defendant's attorney's fees for failure to file expert report in medical malpractice suit be imposed on plaintiff's attorneys when no money can be collected from client's estate)
EXCERPT FROM THE BRISTERING DISSENT:
Generally, trial judges should hesitate to impose sanctions on an attorney lest they chill zealous representation. But the Legislature found that such hesitation was driving physicians from Texas and patients from medical care they needed.[7] When an attorney is responsible for filing a suit without expert support, it is both illogical and wasteful to insist that the defendant pursue a plaintiff with no assets. Accordingly, I would reverse the court of appeals' opinion and order the trial court to assess sanctions against Jersak's attorneys.
JERRY GURKOFF, D.O. v. ROSEMARY JERSAK; from Tarrant County; 2nd district (02‑07‑00101‑CV, ___ SW3d ___, 04‑10‑08) Justice Brister, joined by Justice Hecht, delivered an opinion dissenting from the denial
Showing posts with label sanctions. Show all posts
Showing posts with label sanctions. Show all posts
Saturday, March 28, 2009
Tuesday, September 2, 2008
Supreme Court again favors the State in an eminent domain dispute
Award of attorney's fees in favor of landowner reversed in opinion by Justice Phil Johnson. Justice O'Neill, writing separately, would have remanded case to trial court to consider imposing sanctions on the TxDOT for improper conduct in the botched condemnation proceeding that cost landowner an arm and a leg in legal fees.
State of Texas v. Brown,
No. 05-0236 (Tex. Aug. 29, 2008)(Johnson) ("[W]e grant the State’s petition for review. Without hearing oral argument, we reverse the court of appeals’ judgment and render judgment that Brown take nothing on his claim for attorney’s fees and expenses.")
THE STATE OF TEXAS v. J. GRADY BROWN, JR.; from Denton County; 2nd district
(02-04-00035-CV, 158 SW3d 68, 01-27-05)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, and Justice Willett joined.
Justice O'Neill delivered an opinion concurring in part and dissenting in part:
I agree fully with the Court’s conclusion that Property Code sections 21.019 and 21.0195 do not authorize the award of all fees and expenses under these circumstances. I dissent only because I would remand the case, rather than render judgment, so that the trial court may consider imposing any sanctions available under the Texas Rules of Civil Procedure. See, e.g., Tex. R. Civ. P. 13 (authorizing sanctions when a pleading is groundless or not brought in good faith); Tex. R. Civ. P. 70 (permitting a trial court to require a party whose amended or supplemental pleading surprises and prejudices another party to pay the additional costs and expenses incurred by the surprised party as a result of the surprise); Tex. R. Civ. P. 215 (providing for sanctions when a party abuses or fails to comply with discovery proceedings and requests).
As the Court notes, we recently held that such sanctions against a condemning authority are available because Property Code section 21.018(b) stipulates that condemnation trials are to be conducted in the same manner as any other civil trial. PR Invs. & Specialty Retailers, Inc. v. Texas, 251 S.W.3d 472, 480 (Tex. 2008).
As we noted in PR Investments, appropriate sanctions under the Rules of Civil Procedure may not constitute the entirety of the fees and costs; for example, perhaps only the costs associated with the untimeliness of the amendment to the petition are available here. Because PR Investments was decided after the trial court’s decision, in the interests of justice and fairness, I would remand to permit the trial court to consider sanctions under the Rules of Civil Procedure in light of PR Investments.
State of Texas v. Brown,
No. 05-0236 (Tex. Aug. 29, 2008)(Johnson) ("[W]e grant the State’s petition for review. Without hearing oral argument, we reverse the court of appeals’ judgment and render judgment that Brown take nothing on his claim for attorney’s fees and expenses.")
THE STATE OF TEXAS v. J. GRADY BROWN, JR.; from Denton County; 2nd district
(02-04-00035-CV, 158 SW3d 68, 01-27-05)
Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and renders judgment.
Justice Johnson delivered the opinion of the Court, in which Chief Justice Jefferson, Justice Hecht, Justice Wainwright, Justice Brister, Justice Medina, Justice Green, and Justice Willett joined.
Justice O'Neill delivered an opinion concurring in part and dissenting in part:
I agree fully with the Court’s conclusion that Property Code sections 21.019 and 21.0195 do not authorize the award of all fees and expenses under these circumstances. I dissent only because I would remand the case, rather than render judgment, so that the trial court may consider imposing any sanctions available under the Texas Rules of Civil Procedure. See, e.g., Tex. R. Civ. P. 13 (authorizing sanctions when a pleading is groundless or not brought in good faith); Tex. R. Civ. P. 70 (permitting a trial court to require a party whose amended or supplemental pleading surprises and prejudices another party to pay the additional costs and expenses incurred by the surprised party as a result of the surprise); Tex. R. Civ. P. 215 (providing for sanctions when a party abuses or fails to comply with discovery proceedings and requests).
As the Court notes, we recently held that such sanctions against a condemning authority are available because Property Code section 21.018(b) stipulates that condemnation trials are to be conducted in the same manner as any other civil trial. PR Invs. & Specialty Retailers, Inc. v. Texas, 251 S.W.3d 472, 480 (Tex. 2008).
As we noted in PR Investments, appropriate sanctions under the Rules of Civil Procedure may not constitute the entirety of the fees and costs; for example, perhaps only the costs associated with the untimeliness of the amendment to the petition are available here. Because PR Investments was decided after the trial court’s decision, in the interests of justice and fairness, I would remand to permit the trial court to consider sanctions under the Rules of Civil Procedure in light of PR Investments.
Sunday, April 20, 2008
Texas Supreme Court Tightens Screws on Malpractice Plaintiffs (and their lawyers)
JUDICIAL TORT REFORM - SUPREME COURT EXPANDS MEDICAL MALPRACTICE DEFENDANTS' ABILITY TO GO AFTER PATIENTS FOR ATTORNEYS' FEES
Texas High Court, in opinion written by Justice Dale Wainwright, who is facing the voters this year, gives doctors a second chance to pursue retaliatory sanctions claim against patients who sued them for medical malpractice. Courts of Appeals had thrown out doctors' interlocutory appeals after the plaintiffs had nonsuited their claims.
In all three cases decided by the Supreme Court last week, the trial court judges had denied the health care providers' motions for sanctions and the court of appeals had dismissed the doctors' appeal for want of jurisdiction because the plaintiffs had nonsuited their claims. Treating the doctor's sanctions demands as counterclaims for affirmative relief even though the claims could not exist and could not be brought independently of the plaintiff's suit, the supreme court holds that the doctors' sanctions motion survive nonsuit by the plaintiffs, and orders the courts of appeals to determine whether the judges in the courts below erred when they refused to make the plaintiffs pay the defendants' attorneys fees and costs as a sanction. The ruling put plaintiffs' lawyers at considerable risk of legal malpractice liability if they fail to timely obtain an expert report that satisfies the requirements of the statute as interpreted by the Supreme Court and is likely to discourage attorneys from accepting representation in medical malpractice cases.
Villafani v. Trejo, MD, No. 06-0501 (Tex. Apr. 18, 2008) (Wainwright) (HCLC, ILA, denial of sanctions, effect of non-suit on defendant's right to appeal denial of motion for sanctions)
JUAN MARIO VILLAFANI, M.D. v. ADELA TREJO; from Cameron County; 13th district (13-04-00449-CV, ___ S.W.3d ___, 10-06-05) The Court reverses the court of appeals' judgment and remands the case to that court. Justice Dale Wainwright delivered the opinion of the Court.
THE COMPANION CASES (decided in per curiam opinions)
Barrera, MD v. Rico, No. 05-0928 (Tex. Apr. 18, 2008)(per curiam) (appealability of order denying doctor's motion for sanctions after plaintiff nonsuited medical malpractice suit and court dismissed without prejudice)
RICARDO BARRERA, M.D. v. ISELA RICO AND MANUEL RICO, INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF GLORIA RICO, A MINOR; from Hidalgo County; 13th district (13-04-00480-CV, ___ S.W.3d ___, 07-21-05) Respondent's motion to supplement response brief on the merits granted. Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
Regent Care Center of San Antonio II, LP v. Hargrave, No. 06-0717 (Tex. Apr. 18, 2008)(per curiam) (HCLC, medical malpractice, effect on nonsuit on health care provider's pending appeal of order denying sanctions)
REGENT CARE CENTER OF SAN ANTONIO II, LIMITED PARTNERSHIP D/B/A REGENT CARE CENTER OF OAKWELL FARMS AND RCCSA II, INC. v. BARBARA HARGRAVE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF DOROTHY MONTGOMERY, AND VERNON LLOYD PIERCE, INDIVIDUALLY; from Bexar County; 4th district (04-05-00274-CV, 202 S.W.3d 807, 06-28-06) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
Texas High Court, in opinion written by Justice Dale Wainwright, who is facing the voters this year, gives doctors a second chance to pursue retaliatory sanctions claim against patients who sued them for medical malpractice. Courts of Appeals had thrown out doctors' interlocutory appeals after the plaintiffs had nonsuited their claims.
In all three cases decided by the Supreme Court last week, the trial court judges had denied the health care providers' motions for sanctions and the court of appeals had dismissed the doctors' appeal for want of jurisdiction because the plaintiffs had nonsuited their claims. Treating the doctor's sanctions demands as counterclaims for affirmative relief even though the claims could not exist and could not be brought independently of the plaintiff's suit, the supreme court holds that the doctors' sanctions motion survive nonsuit by the plaintiffs, and orders the courts of appeals to determine whether the judges in the courts below erred when they refused to make the plaintiffs pay the defendants' attorneys fees and costs as a sanction. The ruling put plaintiffs' lawyers at considerable risk of legal malpractice liability if they fail to timely obtain an expert report that satisfies the requirements of the statute as interpreted by the Supreme Court and is likely to discourage attorneys from accepting representation in medical malpractice cases.
Villafani v. Trejo, MD, No. 06-0501 (Tex. Apr. 18, 2008) (Wainwright) (HCLC, ILA, denial of sanctions, effect of non-suit on defendant's right to appeal denial of motion for sanctions)
JUAN MARIO VILLAFANI, M.D. v. ADELA TREJO; from Cameron County; 13th district (13-04-00449-CV, ___ S.W.3d ___, 10-06-05) The Court reverses the court of appeals' judgment and remands the case to that court. Justice Dale Wainwright delivered the opinion of the Court.
THE COMPANION CASES (decided in per curiam opinions)
Barrera, MD v. Rico, No. 05-0928 (Tex. Apr. 18, 2008)(per curiam) (appealability of order denying doctor's motion for sanctions after plaintiff nonsuited medical malpractice suit and court dismissed without prejudice)
RICARDO BARRERA, M.D. v. ISELA RICO AND MANUEL RICO, INDIVIDUALLY AND AS PARENTS AND NEXT FRIENDS OF GLORIA RICO, A MINOR; from Hidalgo County; 13th district (13-04-00480-CV, ___ S.W.3d ___, 07-21-05) Respondent's motion to supplement response brief on the merits granted. Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
Regent Care Center of San Antonio II, LP v. Hargrave, No. 06-0717 (Tex. Apr. 18, 2008)(per curiam) (HCLC, medical malpractice, effect on nonsuit on health care provider's pending appeal of order denying sanctions)
REGENT CARE CENTER OF SAN ANTONIO II, LIMITED PARTNERSHIP D/B/A REGENT CARE CENTER OF OAKWELL FARMS AND RCCSA II, INC. v. BARBARA HARGRAVE, INDIVIDUALLY AND AS EXECUTRIX OF THE ESTATE OF DOROTHY MONTGOMERY, AND VERNON LLOYD PIERCE, INDIVIDUALLY; from Bexar County; 4th district (04-05-00274-CV, 202 S.W.3d 807, 06-28-06) Pursuant to Texas Rule of Appellate Procedure 59.1, after granting the petition for review and without hearing oral argument, the Court reverses the court of appeals' judgment and remands the case to that court.
Subscribe to:
Posts (Atom)
