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On the docket: Liability of horse owners, getting attorneys fees for medical-malpractice defense

By Don Cruse

The Texas Supreme Court is hearing oral arguments in three cases on Thursday, January 21.

One case involves the Texas Equine Activity Act, which creates a limited immunity for horse owners. Another involves proof needed to get an attorneys’ fee sanction under the medical-malpractice statute.

Removal, remand, recusal… and sanctions

Maria del Carmen Guilbot Serros de Gonzalez, et al. v. Miguel Angel Gonzalez Guilbot, et al., No. 08-0961 (docket and briefs)

This case is a procedural mess over which judge should have heard a sizable “family-business dispute.” Here is Osler’s summary of this one:

Principal issues arising from a family-business fight alleging theft and trademark infringement are (1) whether a third (“tertiary”) recusal motion defined by statute applies only when filed against the same judge; (2) whether a facially defective recusal motion allows the judge to take no action on the defective motion; and (3) whether, for a case remanded to state court after removal, the state court reacquires jurisdiction only if the federal clerk mails the remand order to the state court. In this case two siblings were accused of stealing the family herbal-tea companies’ assets and infringing on company trademarks. They moved to recuse a Harris County probate judge scheduled to hear the suit, then moved to remove the judge assigned to hear the recusal motion and the presiding judge who made the assignment. The presiding judge dismissed the recusal motions against him and the second judge for defects. The court of appeals reversed, holding in part that the state court acquired jurisdiction but the presiding judge could not rule on the recusal motion against him.

Whatever can be said about herbal tea, it apparently cannot guarantee family harmony.

How much evidence is needed to establish attorneys fees as a sanction for failing to file a medical-malpractice expert report

Samuel Garcia Jr., M.D. v. Maria Gomez, et al., No. 09-0159 (docket and briefs)

Here is yet another permutation of facts about medical-expert reports.

In this case, the plaintiff failed to timely file a report, the defendant moved for attorneys fees as a sanction, and then a hearing was held. At the hearing, the defendant’s attorney gave what is alleged to be conclusory testimony about what would constitute a reasonable fee. The trial court denied motion for sanctions, and the court of appeals affirmed.

Texas Equine Activity Act

Terri Loftin v. Janice Lee and Bob Lee, No. 09-0313 (docket and briefs)

In this case, a horse owner took a friend on a trail ride. The trail turned muddy, and ultimately the horse her friend was riding bolted, injuring her.

Liability was controlled by the split three ways. Two justices voted to reverse and remand. Both of them agreed that the plaintiff had introduced at least some evidence that the horse owner had failed to make a reasonable inquiry about her friend’s skill and experience riding a horse (which was very limited).

One justice would also have read the Equine Activity Act to require — like the common-law “inherent risk” doctrine that it superseded — that the particular risk was inherent in the particular activity (trail riding). That justice would have held that the evidence was not conclusive that this particular risk was inherent.

The other justice dissented and would have affirmed the judgment for the horse owner.

Full post as published by Supreme Court of Texas Blog on January 20, 2010 (boomark / email).