Practice Areas & Industries: Beirne, Maynard & Parsons, L.L.P.

Practice/Industry Group Overview

Because we are a litigation-only firm, we have devoted substantial efforts to developing an exceptionally strong appellate practice. Our appellate section includes a team of fully dedicated appellate lawyers and other attorneys who devote a significant amount of their time to appellate activities in the Fifth Circuit and other federal appeals courts nationwide, in all Texas appellate courts, and before the Texas Supreme Court. Our appellate attorneys routinely advise and consult with trial counsel throughout the development of a case, to preserve error and identify issues for appeal. We identify the key issues from a fresh perspective, frame them in persuasive written briefs, and fully understand the unique aspects of appellate oral presentation.

We offer clients in a wide spectrum of businesses and industries the capabilities and experience necessary to appeal lower court rulings quickly if needed in mandamus actions, coordinate multi-party appeals, and solicit support for amicus positions. Whether representing our clients in seeking an appellate remedy, or responding to the efforts of others, we skillfully develop and vigorously pursue effective appellate strategies, and have a substantial record of success in securing for them decisions that affirm their positions or overturn opposing ones.

Our appellate lawyers assist clients in a wide range of commercial and business disputes, including mass tort and toxic tort lawsuits, shareholder disputes, contracts, and alleged breach of fiduciary duty. Working closely with our firm's trial counsel, our appellate lawyers offer comprehensive strategies that identify spurious technical arguments and weak case law in appeals of litigation involving asbestos, silica, pharmaceuticals, and silicone implants, as well as motor vehicles, aircraft, and other equipment. Because we handle so many appeals before such a wide variety of forums, our knowledge of proper and effective appellate procedure assures clients of skillful representation tailored to their needs and to the demands and perspectives of the appellate body.

Our notable successes before federal appeals courts include the following:

• Currently representing the state of California in its appeal of a U.S District Court decision in favor of a Houston-based realtor seeking to overturn cease-and-desist orders against him. Florida and California, among other states, have sought to bar this realtor from doing business in their states because of allegedly questionable ethical and legal business practices and an extensive history of consumer complaints regarding his time share resale business. The district court ruling stated that the realtor, by being licensed in Texas, is subject only to Texas laws and enforcement. California and Florida have appealed this decision to the United States Court of Appeals for the Fifth Judicial Circuit, with fourteen other states and Puerto Rico filing amicus briefs in the matter. No. 05-20803; Stroman Realty, Inc. v. Simone Marstiller, et al.
• Successfully obtained and affirmed the trial court's summary judgment to excess liability insurer on ground that settlement by insured without consent of insurer who had offered a defense under reservation was prejudicial as a matter of law. Motiva v. National Union Fire Ins. Co. of Pittsburgh, PA, 445 F.3d 381 (5th Cir. 2006) (pet. for reh'g en banc denied).
• Successfully obtained and affirmed the trial court's summary judgment to directors' and officers' liability insurer on ground that pollution exclusion applied to shareholders' class action and derivative claims brought for alleged failure to disclose releases of pollutants. National Union Fire Ins. Co. of Pittsburgh, PA v. U.S. Liquids, Inc., 88 Fed. Appx. 725 (5th Cir. 2004).
• Represented the appellee in an interlocutory appeal from an order denying the plaintiff's motion to remand a removed case back to Texas state court. The Fifth Circuit affirmed the order, in the first federal appeals court decision to hold that there are equitable exceptions to the U.S. Code's one-year deadline for removing diversity cases. Tedford v. Warner-Lambert Co., 327 F.3d 423 (5th Cir. 2003).
• Successfully obtained and affirmed the trial court's summary judgment to officers' and directors' liability insurer on grounds that officer's duty to notify insurer under claims-made policy was triggered by filing of action against officer alleging that he made misrepresentations, omissions, and false promises that induced performance, not later filing during policy period of amended pleading asserting negligence. National Union Fire Ins. Co. of Pittsburgh, PA v. Willis, 296 F.3d 336 (5th Cir. 2002).
• Served as lead appellate counsel on behalf of building owners in a constitutional challenge to the demolition of apartment buildings and successfully appealing the district court's order of dismissal. The John Corp. v. City of Houston, 214 F.3d 573 (5th Cir. 2000).
• Obtained reversal of a $5 million jury award for alleged legal malpractice. Carroll v. Jaques Admiralty Law Firm, P.C., 149 F.3d 1175 (5th Cir. 1998).
• Successfully obtained affirmance of a take-nothing jury verdict in a wrongful death crashworthiness case. Smith v. Isuzu Motors Limited, 137 F.3d 859 (5th Cir. 1998).
• Successfully obtained affirmance of a summary judgment against claims of consumer fraud and warranty claims brought under the Deceptive Trade Practices Act. Chamrad v. Volvo Cars of North America, 145 F.3d 671 (5th Cir. 1998).
• Secured a newspaper's First Amendment rights by helping to obtain reversal of a district court's order dismissing the newspaper's lawsuit to unseal court records. Freedom Comm., Inc. v. Mancias, 101 F.3d 697 (5th Cir. 1996).
• Obtained reversal of large attorney fee award for prosecution of insurance coverage suit. Lafarge v. Hartford Cas. Ins. Co., 61 F.3d 389 (5th Cir. 1995).

With our in-depth knowledge of the entire Texas court system, our firm is particularly effective at Texas appellate court proceedings. Our appellate lawyers have frequently been able to obtain reversals of summary judgments, trial court rulings and jury decisions that could otherwise have cost our clients millions of dollars in penalties and awards. Much of our Texas appellate work has been done for manufacturing clients that are frequently the target of toxic tort and product liability litigation, and our skill at identifying trial court error has enabled us to:

• Secure a February 12, 2008 affirmance of a summary judgment against a plaintiff's claim that her brain tumor was caused by an oral polio vaccine allegedly manufactured by Pfizer Inc. In Garcia v. Pfizer, No. 06-40703, the U. S. Court of Appeals for the Fifth Circuit concluded that (1) the plaintiff did not offer sufficient proof that Pfizer made the vaccine alleged to have caused the injury; (2) Pfizer and the other defendants offered sufficient proof to rebut any inference that Pfizer could be responsible for the plaintiff's injury; and (3) Texas law, applicable to the case, has not adopted any of the alternative liability theories the plaintiff sought to apply to the case.
• Secure what we believe to be the only Texas appellate court reversal of a punitive damages jury award against the manufacturer of an asbestos-containing product, winning the court's agreement that there was not legally sufficient evidence of malice to support any of the $15 million in punitive damages awarded. Quigley Company, Inc. v. Calderon, No. 08-01-00346-CV, 2003 WL 77256 (Tex. App. - El Paso 2003, pet. denied).
• Secure reversal of a class certification order of a consumer fraud case filed against our pharmaceutical client under the Deceptive Trade Practices Act. Warner-Lambert Company v. Mills, 09-02-173-CV; 2005 WL 2088366 (Tex. App. - Beaumont 2005, pet denied).

We have also been successful in Texas state appellate courts on numerous appeals of commercial law disputes involving shareholders, contracts, unfair competition, insurance, arbitrations, and other matters. Significant recent examples of Texas appellate results for clients include the following:

• Obtained a writ of mandamus compelling the arbitration of disputes involving interpretation of partnership agreements governing the ownership rights to six hotels. In re W. Dow Hamm III Corp., --- S.W.3d ----, 2007 WL 2005071 (Tex.App.-Houston [1st Dist.] July 12, 2007, orig. proceeding).
• Obtained reversal of a ruling that arbitration agreements were unconscionable and unenforceable. TMI, Inc. v. Brooks, 225 S.W.3d 783 (Tex. App.--Houston. [14th Dist.] 2007, pet. filed).
• In a matter of first impression in Texas, successfully obtained a writ of mandamus compelling arbitration against a non-signatory to an arbitration agreement where the claims relate to that contract. In re Weekley Homes, L.P., 180 S.W.3d 127 (Tex. 2005)(orig. proceeding).
• Represented excess insured in appeal of judgment for putative Additional Insured, and obtained reversal based on interpretation of AI provision to exclude coverage for putative AI's sole negligence; no additional insured status for additional insured's own negligence under an excess policy. Evanston Ins. Co. v. Atofina Petrochemicals, Inc., __S.W.3d__, 2006 WL 1195330 (Tex. 2006).
• Successfully obtained a writ of mandamus vacating a trial court order that compelled production of a confidential and privileged research memorandum. In re Chevron Phillips Chemical Company LP., No. 09-06-470-CV; 2006 WL 3028054 (Tex. App. - Beaumont 2006, orig. proceeding).
• Obtained affirmance of a dismissal of fraud and breach of fiduciary duty claims against our energy company clients on the ground of forum non conveniens. Yoroshii Investments (Mauritius) PTE., Ltd, BP International Ltd and BP Oil International Ltd., 179 S.W.3d 639 (Tex. App. - El Paso 2006, pet denied).
• In appeal involving the First Amendment's "fair report" privilege, successfully reversed the trial court's order denying summary judgment to newspaper and its reporter. Freedom Communications v. Sotelo, 11-05-336-CV, 2006 WL 1644602 (Tex. App.--Eastland 2006, no pet.).
• In appeal from a judgment for plaintiffs, obtained reversal for product manufacturer based on the "sophisticated user" defense. U.S. Silica v. Tompkins, 156 S.W.3d 578 (Tex. 2005).
• Successfully reversed the trial court's order denying summary judgment to newspaper and its reporter, on the ground that a headline is not defamatory when it rationally interprets the underlying facts. Freedom Communications v. Cantu, 168 S.W.3d 847 (Tex. 2005).
• Successfully obtained and affirmed the trial court's summary judgment to directors' and officers' liability insurer on grounds that contractual liability and prior litigation exclusions applied to claim by officer and director's ex-spouse under divorce agreement, not allowing use of extrinsic evidence to decide duty to defend. King Chapman & Broussard Consulting Group, Inc. v. National Union Fire Ins. Co. of Pittsburgh, PA, 171 S.W.3d 222 (Tex. App.--Houston [1st Dist.] 2005, no pet.)
• Successfully obtained and affirmed the trial court's summary judgment to homeowner's insurer on grounds that foundation damage claim was barred by written claim release and contractual limitations. Barth v. Royal Insurance Co., No. 13-02-688-CV, 2004 WL 2904306 (Tex. App.--Corpus Christi, Dec. 16, 2004, no pet.).
• Obtained reversal of a trial court order assessing sanctions for a truck manufacturer's objection to production of net worth information. The court of appeals granted our emergency request for a stay of trial while it considered our request for extraordinary relief. In re Western Star Trucks US, Inc., 112 S.W.3d 756 (Tex. App. - Eastland 2003, orig proceeding).
• Obtained reversal of a judgment that divested our client of his ownership interest in a closely held corporation, on the ground that the trial court had erroneously excluded evidence that was inconsistent with the jury's finding. Stergiou v. General Metal Fabricating Corporation, 123 S.W.3d 1 (Tex. App. - Houston [1st Dist.] 2003, pet. denied).
• Obtained reversal of a summary judgment involving the proper meaning of a contract, in our client's suit against former shareholders and employees who left to form a competing business. Baty v. ProTech Ins. Agency, 63 S.W.3d 841 (Tex. App.--Houston [14th Dist.] 2001, pet. denied).
• Obtained reversal of a $6 million jury award for alleged breach of fiduciary duty by the operator of oil and gas field in South Texas. Advent Trust Co. v. Hyder, 12 S.W.3d 534 (Tex. App. San Antonio 1999, pet. denied).
• Represented insureds in a coverage action against a self-insured city following the city's refusal to defend officers in a civil rights suit. The trial court's summary judgment for the insureds was upheld through appeals to the Texas Supreme Court. City of Dallas v. Csaszar, et. al, 1999 WL 1268076 (Tex.App.--Dallas Dec. 30, 1999).
• Obtained reversal of a $21 million jury award for alleged torts relating to the financing of real estate development, as part of a team of law firms handling the appeal. Bank One, Texas, N.A. v. Stewart, 967 S.W.2d 419 (Tex. App.-Houston [14th Dist.] 1998, pet. denied).
• Won reversal of court of appeals holding; Supreme Court announced a five-factor test for determining foreseeability of criminal activity for purposes of a premises liability claim. Timberwalk Apts. v. Cain, 972 S.W.2d 749 (Tex. 1998).
• Obtained affirmance of trial court order refusing to compel arbitration because arbitration provision in employee handbook was not supported by sufficient consideration. Tenet Healthcare Ltd., v. Cooper, 960 S.W.2d 386 (Tex. App. - Houston [14th Dist] 1998, writ dism'd w.o.j.).
• In a matter of first impression, successfully obtained a writ of mandamus vacating a trial court order compelling production of a corporate telephone book that was protected under foreign privacy laws. Volkswagen A.G. v. Valdez, 909 S.W.2d 900 (Tex. 1995)(orig. proceeding).
• Obtained a summary judgment for a homeowner's insurer on coverage and extra-contractual claims, reported in Thom v. State Farm Lloyds, 10 F.Supp. 2d 693 (S.D. Tex. 1997).