Second Court of Appeals

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of June 18, 2018.

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

Hernandez v. Truck Ins. Exch., No. 02-17-00046-CV (June 21, 2018) (Sudderth, C.J., joined by Gabriel and Pittman, JJ.).

Held:  Under the supreme court’s opinion in Phillips v. Bramlett, 288 S.W.3d 876 (Tex. 2009), if the facts of a medical malpractice case would give rise to a common law Stowers claim by a medical professional against his or her insurer, then plaintiffs who filed their original petition in the underlying medical malpractice lawsuit under article 4590i of the revised (and now repealed) civil statutes prior to September 1, 2003, have standing to bring a direct, statutory Stowers cause of action against the insurer for damages amounting to the difference between the judgment against the medical professional, capped by statute under article 4590i, and the jury’s verdict.

Alpine Indus., Inc. v. Whitlock, No. 02-17-00396-CV (June 21, 2018) (Sudderth, C.J., joined by Gabriel and Kerr, JJ.).

Held:  Civil practice and remedies code section 128.053, which requires the filing of an expert report within 90 days of the filing of the plaintiff’s original petition, is not unconstitutional because—like other expert report requirements in the civil practice and remedies code—it does not pose an unreasonable restriction on the ability to pursue a common law claim when balanced against the statute’s purpose.  The plaintiff’s failure to timely serve an expert report, not the existence of the expert report requirement itself, bars the claim.  The 90-day statutory deadline for submitting the section 128.053 expert report is not extended by an agreed scheduling order that makes no specific reference to that deadline.  Based on the plain language of the statute, section 128.053’s expert report requirement does not apply to claims against an employee of a “sport shooting range.”

Gomez v. State, No. 02-17-00002-CR (June 21, 2018) (Sudderth, C.J., joined by Meier and Gabriel, JJ.).

Held:  The trial court did not err by admitting the complainant’s written statement that had been dictated in Vietnamese by the complainant to her daughter, who then wrote the complainant’s statement in English.  The complainant adopted the written statement as her own and there was no evidence of any circumstances that would cast doubt on the integrity of the daughter’s translation.  The written statement was properly admitted as a recorded recollection of the complainant.