1005 Heights Boulevard
Houston Texas  77008

713.529.0048 phone
713-529-2498 fax




Peter M. Kelly, Partner

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Publications & Presentations

The Constitution, Juries, and the Common Law

Thurgood Marshall School of Law Federalist Society (April 11, 2018)

Respondeat Superior and Vicarious Liability: Responsibility for the Acts of Others

Texas Trial Lawyers Association CLE (February 16, 2018)

Prosecuting and Defending Claims Against Premises Owners

Houston Bar Association Civil and Appellate Bench Bar Conference (April 6, 2017)

Rule 91a: The Texas Motion To Dismiss

Texas Trial Lawyers Association CLE (December 6, 2016)

Select Aids to Statutory Interpretation

Advanced Civil Appellate CLE, State Bar of Texas, (September 2016)

The Court’s Charge from the Plaintiff’s Perspective

The Advocate (State Bar Litigation Section Report-Vol. 76, Fall 2016)

Column Ignores Structure of Texas Common Law

Texas Lawyer, June 1, 2015

Post-Trial Motions

Houston Bar Association Civil and Appellate Bench Bar Conference (May 7, 2015)

Exemplary Damages

State Bar of Texas CLE, Advanced Personal Injury Law Course 2014, Dallas, San Antonio, and Houston (July-August, 2014)

Minority Report: Appellate Pre-Update

State Bar of Texas, Advanced Medical Torts Course, Santa Fe, New Mexico (March 13-14, 2014)

Evidence and Case Law Update

State Bar College Summer School, State Bar of Texas CLE (July 1, 2012)

Escabedo Decision: Navigating the Recovery of Medical Damages in a Personal Injury Lawsuit

Soaking Up Some CLE, State Bar of Texas CLE (May 17-18, 2012)

Escabedo Decision: Navigating the Recovery of Medical Damages in a Personal Injury Lawsuit

Advanced Evidence and Discovery, State Bar of Texas CLE (April 26-27, 2012)

The Escabedo Decision

Damages in Civil Litigation, State Bar of Texas CLE (February 1, 2012)

Paid or Incurred After Escabedo

co-author(s): and Andy Payne

Texas Trial Lawyers Association, Advanced Personal Injury Seminar, Houston, Texas (December 1, 2011)

Legislative Update

Business Torts Institute, State Bar of Texas CLE (October 1, 2011)

Escabedo Rapid Response

Texas Trial Lawyers Association Webinar (July 1, 2011)

Proving Up Medicals in the Post-Escabedo World

Houston Trial Lawyers Association CLE (July 1, 2011)

Preservation of Error

Advanced Civil Trial Law Seminar, Corpus Christi Bar Association (April 1, 2011)

Ten Things Every Trial Lawyer Should Know About Appeals

Houston Trial Lawyers Association Luncheon (October 1, 2010)

Texas Summary Judgment Practice

Advanced Personal Injury Law Course, State Bar of Texas CLE (Summer 2009)

Amicus Practice in Texas

San Antonio Bar Association Appellate Practice Section Luncheon (November 1, 2008)

Amicus Briefs from the Judicial and Practical Perspectives

Advanced Civil Appellate Course, State Bar of Texas CLE (September 1, 2008)

Substantial Foreclosure in Antitrust: Can It Ever Be Proved in Texas?

co-author(s): , Co-Author

South Texas College of Law Review, vol. 49, No. 3 (Spring 2008)

Supreme Court Update

Advanced Evidence and Discovery Course, State Bar of Texas CLE (April 1, 2008)

Chapter 74 Expert Reports

Advanced Medical Malpractice Course, State Bar of Texas CLE (March 1, 2008)

Paid or Incurred Damages Issues

Personal Injury/Automobile Injury Conference, South Texas College of Law (August 1, 2007)

Preparing the Jury Charge

Advanced Personal Injury Course, Texas Trial Lawyers Association CLE (May 1, 2007)

30 Winning Appeals

Advanced Civil Appellate Practice Course, State Bar of Texas CLE (September 1, 2006)

Preparing the Jury Charge

Advanced Personal Injury Course, Texas Trial Lawyers Association CLE (May 1, 2006)

Preserving Error in the Court’s Charge

Maximizing Your Case Recovery, Texas Trial Lawyers Association CLE (April 1, 2006)

Etie, OCIPs, and Preserving Third Party Liability

Houston Trial Lawyers Association (July 1, 2005)

Court of Appeals Appellate Procedure Update

Appellate Advocate, published quarterly by the Appellate Practice Section of the State Bar of Texas (Fall 1999-2004)

Case Law Update

South Texas College of Law Personal Injury Conference (March 1, 2004)

The End of Meaningful Supersedeas: HB 4 and Postjudgment Practice

Navigating HB 4: A Brave New World, Texas Trial Lawyers Association CLE (December 1, 2003)

Vicarious Liability of Securities Firms for Employee Misconduct in Texas: Millan v. Dean Witter Reynolds

Houston Bar Association Securities Litigation Section (August 1, 2003)

Ten Things Every Lawyer Should Know About Appeals

Houston Trial Lawyers Association (May 1, 2003)

Preservation of Error (State) Pre-Trial and Trial

Hidalgo County Bar Association Advanced Civil Trial Seminar (November 1, 2002)

Ten Things Every Lawyer Should Know About Appeals

Hidalgo County Bar Association Monthly Meeting (October 1, 2002)

Preservation of Error (State) Pre-Trial and Trial

Nuts & Bolts of Appellate Practice, State Bar of Texas Advanced Civil Appellate Practice Course (September 1, 2001)

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Significant Cases

Mitropoulos v. Pineda, No. 01-17-00795-CV, 2018 WL 6205855 (Tex. App.—Houston [1st Dist.] Nov. 29, 2018, no pet. h.) (mem. op.)

In dispute between commercial property neighbors, successfully convincing the court of appeals to reverse and render a take-nothing judgment on a jury verdict awarding lost rental income for breach of a settlement agreement, finding legally insufficient evidence to support the loss of rental income damage award.

Abshire v. Christus Health Se. Texas, No. 17-0386, — S.W.3d —, 2018 WL 6005220 (Tex. Nov. 16, 2018) (per curiam)

Successfully reversing court of appeals’ judgment and finding that expert report adequately addressed both causation and the applicable standard of care under Chapter 74 of the Texas Civil Practice and Remedies Code and, importantly, confirming that the purpose of a claimant’s expert report is simply to “weed out frivolous malpractice claims in the early stages of litigation, not to dispose of potentially meritorious claims.”

Littell v. Houston Indep. Sch. Dist., 894 F.3d 616 (5th Cir. 2018)

Reversing the dismissal of a civil rights case arising out of a sixth-grade assistant principal’s “mass, suspicionless strip search of the underwear of twenty-two preteen girls” in an effort to find a missing $50, finding that the search violated the girls’ constitutional rights under Texas and federal law.

Garcia v. Wal-Mart Stores Texas, L.L.C., 893 F.3d 278 (5th Cir. 2018)

Reversing summary judgment in a slip-and-fall case, finding that circumstantial creation evidence—evidence that the owner of a premises created the dangerous condition—can support an inference of knowledge on the part of the owner.

McRay v. Dow Golub Remels & Beverly, LLP, 554 S.W.3d 702 (Tex. App.—Houston [1st Dist.] 2018, no pet.)

Successfully reversed summary judgment awarding law firm unpaid attorney’s fees based on law firm’s failure to conclusively establish the reasonableness of fees charged to its former client.

Painter v. Amerimex Drilling I, Ltd., No. 16-0120, ___ S.W.3d ___, 2018 WL 2749862 (Tex. April 13, 2018)

Successfully reversed court of appeals opinion in dispute over vicarious liability of drilling company for its employee’s conduct in driving drilling crew to and from drill site.  Texas Supreme Court holds that “right to control” test is not an applicable or necessary part of the course-and-scope analysis once the employer-employee relationship is established.

Glenn v. Leal, 546 S.W.3d 807 (Tex. App.—Houston [1st Dist.] 2018, pet. filed)

Affirming judgment in favor of the plaintiff in a medical malpractice case, and in the process refusing to apply Texas Civil Practice and Remedies Code section 74.153’s willful and wanton negligence standard to emergency medical care provided in an obstetrical unit where the patient is not first evaluated in an emergency room.

D.A. v. Texas Health Presbyterian Hosp. of Denton, 514 S.W.3d 431 (Tex. App.—Fort Worth 2017, pet. filed)

Reversed and rendered judgment following permissive appeal, holding that section 74.153 of the Civil Practice and Remedies Code, which applies a lower “willful and wanton” standard of care to medical care provided in a hospital emergency room does not apply to medical care provided an expectant mother in an obstetrical unit.

Austin v. Coface Seguro de Credito Mexico, S.A. de C.V., 506 S.W.3d 707 (Tex. App.—Houston [1st Dist.] 2016, pet. denied).

In appeal involving validity of abstract of judgment, court of appeals found that abstract filed under Hispanic judgment debtor’s maternal surname was sufficient to give notice of the judgment to the public.

Siddiqui v. Fancy Bites, LLC, 504 S.W.3d 349 (Tex. App.—Houston [14th Dist.] 2016, pet. denied)

In a commercial fraud-by-nondisclosure case involving the development and operation a fried chicken franchise, Houston’s Fourteenth Court of Appeals upheld the award of nearly $600,000 in damages–including $100,000 in exemplary damages.

Bay Area Healthcare Group, Ltd. v. Martinez, No. 13-15-00118-CV, 2015 WL 7352596 (Tex. App.—Corpus Christi Nov. 19, 2015, no pet.) (mem. op.)

Successfully convinced court of appeals that housekeeper’s claim for injuries suffered when medical center employer required her to lift very heavy items was not a health care liability claim to which Chapter 74 of the Texas Civil Practice and Remedies Code applied.

Katy Springs & Mfg. Inc. v. Favalora, 476 S.W.3d 579 (Tex. App.—Houston [14th Dist.] 2015, pet. denied)

Affirming almost the entirety of a judgment in excess of $800,000 in a nonsubscriber case against a negligent employer.  In addition to raising the usual factual and legal sufficiency arguments regarding the liability and damage findings, the defendant also raised points relating to the financing of the medical expenses, the exclusion of certain evidence, improper jury argument, and charge error, all of which were overruled by the court of appeals.

Kroger Co. v. Milanes, 474 S.W.3d 321 (Tex. App.—Houston [14th Dist.] 2015, no pet.)

Affirming a $1.1 million judgment in favor of injured Kroger employee following an incident in which he lost four fingers on his dominant hand, and in the process rejecting Kroger’s arguments, among many others, that its duties should be limited to those owed by premises owners to invitees–meaning no duty to train or supervise, hire competent co-employees, provide appropriate instrumentalities, etc.–based on the Texas Supreme Court’s recent opinion in Austin v. Kroger.

Brazos Presbyterian Homes, Inc. v. Rodriguez, 468 S.W. 3d 175 (Tex. App.–Houston [14th Dist.] 2015, no pet.)

A custodian employed by a cleaning company was injured when an elevator malfunctioned in a nursing home facility where she was working; following the recent decision in Ross v. St. Luke’s, the court held there was no“substantive nexus” between Rodriguez’s claims relating to the nursing home’s maintenance of its elevator and Brazos Manor’s provision of health care.

In re Memorial Herman Hosp. Sys., 464 S.W.3d 686 (Tex. 2015)

Dr. Gomez brought suit against  Memorial Hermann, his former employer, seeking damages caused by the hospital’s defamatory “whisper campaign” against him.  The hospital claimed that all the relevant documents were protected by the medical peer review privilege; on mandamus, the Texas Supreme Court held that the “anticompetitive action” exception to the privilege applies, and ordered the vast majority of the documents produced.

Brown & Gay Eng’g, Inc. v. Olivares, 461 S.W.3d 117 (Tex. 2015)

Private engineering firm retained by a governmental entity to design and build a toll road asserted “derivative sovereign immunity” protects it from liability for a three-fatality accident caused by negligent design.  The Supreme Court declined to expand the doctrine of governmental immunity to include government contractors, allowed the suit against the engineering firm to proceed.

Nabors Well Services, Ltd. v. Romero, 456 S.W.3d 553 (Tex. 2015)

Though, as expected, the court modernized the law to allow evidence of non-use of seat belts, ensured that such evidence needs to be supported by expert testimony; case remanded to court of appeals, with judgment intact, to determine whether defense evidence met Daubert standards.

Galindo v. Prosperity Partners, Inc., 429 S.W.3d 690 (Tex. App.–Eastland 2014, pet. denied)

Obtained reversal and remand of trial court dismissal order on ground that failure to pay “front pay” discovery sanctions could not become basis for death penalty sanction.

Drury Southwest, Inc. v. Louie Ledeaux No. 1, Inc., No. 04-12-00837-CV, 2013 WL 5812989 (Tex. App.—San Antonio Oct. 30, 2013, opinion withdrawn pursuant to settlement) 

Affirmed $1.1 million dollar award, including $800,000 in punitive damages, in commercial fraud case involving a real estate lease.

In re Loya Ins. Co., No. 01-13-00242-CV, 2013 WL 5637702 (Tex. App.—Houston [1st Dist.] Oct. 15, 2013, orig. proceeding) (mem. op.)

Denial of mandamus of summary judgment in class action, where insurer attempted to “pick off” the class representative by settling with him

Van Voris v. Team Chop Shop, LLC, 402 S.W.3d 915 (Tex. App.—Dallas 2013, no pet.)

Reversed summary judgment originally granted on ground of release.  Court held that Van Voris released only his claims for negligence, not gross negligence.

Shafighi v. Texas Farmers Ins. Co., No. 14-12-00082-CV, 2013 WL 1803609 (Tex. App.— Houston [14th Dist.] April 30 2013, no pet.) (mem. op.)

Reversed and remanded; policyholder client’s failures to sit for examination under oath and to submit proof of claim in proper form did not entitle insurer to summary judgment, but rather only abatement.

Thompson v. Ace American Ins. Co., No. 01-10-00810-CV, 2011 WL 3820889 (Tex. App.–Houston [1st Dist.] Aug. 25, 2011, pet. denied)

Obtaining reversal and remand of judgment after jury verdict in workers compensation judicial review case.

Drury Southwest, Inc. v. Louie Ledeaux No. 1, Inc., 350 S.W.3d 287 (Tex. App.—San Antonio 2011, pet. denied) 

Affirming trial court judgment on liability and preserving right to re-elect remedies on remand.

In re Universal Underwriters of Texas Ins. Co., 345 S.W.3d 404 (Tex. 2011)

As amicus, insulating denial of abatement from mandamus review in case involving appraisal clauses.

Commerce & Industry Ins. Co. v. Ferguson-Stewart, 339 S.W.3d 744 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

Affirming trial court judgment after jury verdict in a workers’ compensation judicial review case.

Greater Houston Transp. Co. v. Parks, No. 01-09-00543-CV, 2011 WL 941234 (Tex. App.—Houston [1st Dist.] Mar. 17, 2011, no pet.) (mem. op.)

In case involving taxi company’s liability for its driver’s criminal acts tried to a favorable jury verdict, settling immediately after oral argument.

In re Taylor, No. 01-10-00893-CV, 2010 WL 4395873 (Tex. App.—Houston [1st Dist.] Oct. 29, 2010, orig. proceeding) (mem. op.) 

Defeating state representative’s attempt to secure privileged TWIA documents under the Texas Public Information Act.

Turull v. Ferguson, No. 01-09-00067-CV, 2010 WL 3833944 (Tex. App.—Houston [1st Dist.] Sep. 30, 2010) (supp’l mem. op. on rehearing) 

Obtaining reversal and modification in DTPA case in which trial court failed to award attorney’s fees to plaintiff.

Faucette v. Chantos, 322 S.W.3d 901 (Tex. App.—Houston [14th Dist.] 2010, no pet.) 

Affirming jury award on ground that option created enforceable contract, even though option was not exercised precisely as provided in written agreement. 

Transcontinental Ins. Co. v. Crump, 330 S.W.3d 211 (Tex. 2010) 

Affirming reliability and admissibility of treating physician’s expert testimony based on differential diagnosis.

In re Brittingham, 319 S.W.3d 95 (Tex. App.—San Antonio 2010, orig. proceeding) (mem. op.)

Granting of motion to disqualify relator’s counsel on ground that counsel, a former justice, before leaving the bench had adjudicated a portion of the dispute in an earlier proceeding.

In re Brittingham-Sada, No. 04-09-00488-CV, 2009 WL 2568341 (Tex. App.—San Antonio Aug. 19, 2009, orig. proceeding) (mem. op.) 

Defeating attempt to dismiss case on personal and subject-matter jurisdictional grounds.

In re Brittingham-Sada, No. 04-09-00480-CV, 2009 WL 2517110 (Tex. App.—San Antonio, Aug. 12, 2009, orig. proceeding) (mem. op.)

Defeating mandamus attempt to avoid discovery on jurisdictional grounds.

Texas Mut. Ins. Co. v. Durst, No. 04-07-00862-CV, 2009 WL 490056 (Tex. App.—San Antonio Feb. 25, 2009, no pet.) (mem. op.)

Affirming judgment after jury verdict in workers compensation judicial review case.

In re Brittingham-Sada, No. 04-08-00688-CV, 2009 WL 263361 (Tex. App.—San Antonio Feb. 4, 2009, orig. proceeding) (mem. op.) 

Defeating mandamus attempt to dismiss case on forum non conveniens grounds.

Moeller v. Blanc, 276 S.W.3d 656 (Tex. App.—Dallas 2008, pet. denied)

After defense verdict in medical malpractice case, obtaining reversal and remand for new trial on basis of a Batson challenge.

In re Texas Best Staff Leasing, Inc., No. 01-08-00296-CV, 2008 WL 4531028 (Tex. App.—Houston [1st Dist.] Oct. 9, 2008, orig. proceeding) 

Successfully defending trial court order denying motion to compel arbitration.

Transcontinental Ins. Co. v. Crump, 274 S.W.3d 86 (Tex. App.—Houston [14th Dist.] 2008), rev’d, 330 S.W.3d 211 (Tex. 2010)

Affirming judgment after jury verdict in workers compensation judicial review case.

Unauthorized Practice of Law Committee v. American Home Assurance Co., 261 S.W.3d 24 (Tex. 2008)

Amicus brief

Vansteen Marine Supply, Inc. v. Twin City Fire Ins. Co., No. 13-05-00231-CV, 2008 WL 599850 (Tex. App.—Corpus Christi Mar 6, 2008, pet. denied) (mem. op.) 

In coverage action, affirming trial court’s judgment that insurer’s duty to defend did not require it to fund prosecution of counterclaim.

Cantu v. Howard S. Grossman, P.A., 251 S.W.3d 731 (Tex. App.—Houston [14th Dist.] 2008, pet. denied)

On venue grounds, obtaining reversal of trial court judgment domesticating foreign judgment.

Escalante v. Rowan, 251 S.W.3d 720 (Tex. App.—Houston [14th Dist.] 2008), rev’d on other grounds, 332 S.W.3d 365 (Tex. 2011) 

In medical malpractice case, obtaining reversal of summary judgment granted on “loss of chance” doctrine. 

In re Igloo Products Corp., 238 S.W.3d 574 (Tex. App.—Houston [14th Dist.] 2007, orig. proceeding) 

Successfully defending trial court order denying motion to compel arbitration.

Kallam v. Boyd, 232 S.W.3d 774 (Tex. 2007) 

As amicus, persuading court to withdraw its grant of review as improvidently granted.

Hagberg v. City of Pasadena, 224 S.W.3d 477 (Tex. App.—Houston [1st Dist.] 2007, no pet.) 

Affirming judgment after jury verdict in workers compensation judicial review case.

Tijerina v. Mackie, No. 04-05-00213-CV, 2006 WL 397936 (Tex. App.—San Antonio Feb. 22, 2006, pet. denied) (mem. op.) 

Affirming appellate jurisdiction of interlocutory appeal from probate order.

In re Mousa, No. 01-04-00485-CV, 2004 WL 2823172 (Tex. App.—Houston [1st Dist.] Dec. 9, 2004, orig. proceeding) (mem. op.)

Obtaining writ of mandamus dissolving improperly filed lis pendens.

Leal v. Weightman, No. 01-03-01006-CV, 2004 WL 2251570 (Tex. App.—Houston [1st Dist.] Oct. 7, 2004, no. pet.) (mem. op.) 

Affirming grant of summary judgment for return of money loaned on three out of four grounds; case subsequently dismissed.

Johannsen v. Nabors Indus., Inc., No. 14-03-00056-CV, 2003 WL 1566560 (Tex. App.—Houston [14th Dist.] Mar. 27, 2003, no pet.) (mem. op.) 

Obtaining determination that judgment that did not include attorney fee award was final, and attorney fees were no longer available.

Long Distance Intern., Inc. v. Telefonos de Mexico, S.A. de C.V., 49 S.W.3d 347 (Tex. 2001)

Obtaining reversal of summary judgment based on interpretation of repealed Mexican telecommunications regulation. 

Perseus, Inc. v. Canody, 995 S.W.2d 202 (Tex. App.—San Antonio, 1999, no pet.)

Affirming judgment in favor of plaintiff in dram shop case tried to a verdict.

Isbell v. Ryan, 983 S.W.2d 335 (Tex. App.—Houston [14th Dist.] 1998, no pet.)

Reversing summary judgment granted on negligent supervision cause of action.

Valdes v. Wal-Mart Stores, Inc., 158 F.3d 584, 1998 WL 648571 (5th Cir. 1998) (not designated for publication) 

Reversing and remanding for lack of subject matter jurisdiction on ground that non-diverse store manager owed independent duty to premises plaintiff.