February 9, 2022 – Andrew L. Petersen and Hartline Barger Appellate Team obtained a recent appellate victory when the Texas Supreme Court denied Plaintiff’s petition for review of an award of death penalty sanctions based on Plaintiffs’ bad faith Non-Suit during a Summary Judgment hearing.
In the case of Cox v. Vanderburg, 06-20-00078-CV, 2021 WL 4055487 (Tex. App—Texarkana Sept. 7, 2021, pet. denied), Plaintiffs were passengers in a vehicle driven by an independent contractor for Cedar Creek and claimed they were injured when the contractor drove through a red light while part of a police escorted caravan and impacted another vehicle traveling through the intersection with a green light. After almost two years of litigation, Plaintiffs non-suited Cedar Creek right before the depositions of the co-defendant’s corporate representative and the Defendants’ jointly designated Biomechanic expert. Plaintiffs filed their 10th and 11th amended petitions adding Cedar Creek back to the suit after the depositions and the deadline for dispositive motions had passed. Cedar Creek filed motions for summary judgment which were joined by its co-defendant. During the hearing on the motions for summary judgment, after the Court had granted many of Cedar Creek’s objections to Plaintiffs’ evidence, the Court announced it was likely going to also strike Plaintiffs’ 10th and 11th amended petitions. Plaintiffs’ counsel stood up during Cedar Creek’s argument and non-suited the case without prejudice. Cedar Creek and Co-defendant Premier filed a motion for death-penalty sanctions asking the Court to convert the non-suit to being with prejudice based on opposing counsel’s bad faith actions in addition to requesting lesser sanctions. The Trial Court granted the motion, awarded death penalty sanctions converting the non-suit to with prejudice and ruled Defendants were prevailing parties. The Sixth Court of Appeals in Texarkana upheld the Trial Court’s decision finding the non-suit was filed for an improper purpose under Chapter 10 and held that the Texas Supreme Court’s holding in Epps v. Fowler, 351 S.W.3d 862 (Tex. 2011), regarding the determination of prevailing parties extends to matters decided under Chapter 10 where a non-suit is taken to avoid an unfavorable ruling. As a result the Sixth Court of Appeals upheld the Trial Court’s determination that Defendants were prevailing parties. Plaintiffs filed a motion for rehearing en banc which was denied and their petition for review to the Texas Supreme Court was also denied.Cox v Vanderburg
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