Texas Supreme Court opinions (4/24/15), part 1

Posted by Scott Stolley, Thompson & Knight

As I reported last Friday, the Texas Supreme Court issued 13 opinions on 4/24/15. Click here to read the order list and access the opinions. I will report on seven of the opinions in this post, while Rich Phillips has done a separate post about the other six.

No. 12-0946, In re Bridgestone Americas Tire Operations, LLC -- The plaintiff is a Texas resident appointed to be the next friend of some minor children whose parents were killed in a vehicle accident in Mexico. Because the parents and the children lived in Mexico, Bridgestone filed a motion to dismiss based on forum non conveniens. The next friend argued the Texas-resident exception, which says that the court may not dismiss if the plaintiff is a Texas resident. The Supreme Court held that the next friend's Texas status did not trigger the Texas-resident exception. The Court then applied the forum non conveniens analysis and held that the case should have been dismissed.

No. 13-0593, Texas Student Housing Auth. v. Brazos Cnty. Appraisal Dist. -- Created by a municipality, the Texas Student Housing Authority is a nonprofit organization that owns some student housing near Texas A&M University. During the summer, the Authority uses the facility to house non-college students attending summer programs and camps at A&M. The Court held that this summer use of the facility did not forfeit the Authority's property-tax exemption under the Education Code.

No. 13-0711, JAW The Pointe, L.L.C. v. Lexington Ins. Co. -- The plaintiff owned an apartment complex that was damaged by flooding and high winds during a hurricane. The apartment complex's property-insurance policy covered wind losses but not flood losses. The policy also contained an anti-concurrent-causation clause, which essentially excluded any loss that was caused in any part by an excluded peril. Because the wind and flooding combined to cause the damage, the anti-concurrent-causation clause excluded the entire loss.

No. 13-0750, Vernco Constr., Inc. v. Nelson -- The issue is whether the plaintiff lacks standing because it assigned its claims to its lender under a forbearance agreement. The plaintiff's response to the motion to dismiss included an addendum that the plaintiff relied on to argue that it does have standing. The Court held that the court of appeals erred by not considering the addendum when deciding the standing issue.

No. 13-0966, San Antonio Water Sys. v. Nicholas -- The plaintiff complains that her employment was terminated in retaliation for her complaints about a male employee who had invited some female employees to lunch. The Court held that the plaintiff could not have reasonably believed that the lunch invitations were unlawful sexual harassment, so her complaints were not a "protected activity." This meant that the water system's sovereign immunity was not waived, so the trial court lacked jurisdiction.

No. 13-1014, Randol Mill Pharmacy v. Miller -- The plaintiff sued a pharmacy that compounded a drug ordered by the plaintiff's doctor. The Court held that the pharmacy was covered under the Medical Liability Act, which required the plaintiff to submit an expert report. The Court further ruled that the plaintiff could not recast her claim as a products-liability or breach-of-warranty claim to avoid the expert-report requirement.

No. 14-0353, Van Ness v. ETMC First Physicians -- The Court held that the trial court did not abuse its discretion in concluding that the plaintiffs' expert report in this medical-malpractice case was not conclusory, but was a good-faith effort to comply with the Medical Liability Act. The Court found that the court of appeals did not fully credit the expert's factual statements and opinions.