Stephan B. Rogers

Texas Supreme Court:

• Waterfront property owners may use the Declaratory Judgments Act to protect appurtenant easement rights in the lake beachfront from exclusion by the holder of a fraudulent deed. Lance v. Robinson, 2018 Tex. LEXIS 246 (March 23, 2018).
• An express warranty that sufficiently describes the manner, performance, or quality of services supersedes the implied warranty of good and workmanlike repairs to existing tangible goods. Gonzales v. Olshan Foundation Repair Co., No. 11-0311,2013 Tex. LEXIS 231 (Tex. 2013).
• State statue restricting arbitration was preempted by the Federal Arbitration Act. In re Olshan Foundation Repair Co., 328 S.W.3d 883 (Tex. 2010).
• A special showing must be made to justify an apex deposition of a high corporate executive. In re Alcatel USA, Inc., 11 S.W.3d 173 (Tex. 2000).
• A third-party claimant has no direct cause of action against liability insurer. Allstate Insurance Co. v. Watson, 876 S.W.2d 145 (Tex. 1994).
• Rejecting numerous constitutional challenges to the creation of the Edwards Aquifer Authority. Barshop v. Medina County Underground Water Conservation District, 925 S.W.2d 618 (Tex. 1996).
• Texas does not recognize an independent cause of action for negligent infliction of emotional distress. Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993).

General:

• Represents real estate companies and agents in numerous disputes involving real estate transactions, provides risk management support, regulatory and compliance issues, inter-broker arbitrations, and general counsel services; serves as panel defense counsel for several liability insurance companies.
• Represented the executor of a large estate in a high-profile lawsuit involving claims of breach of fiduciary duty and deceptive trade practices.
• Advised school risk fund on numerous insurance coverage issues.
• Represented business newspaper with respect to defamation claims, legal review, and staff training.
• Worked on several personal injury lawsuits, including a roll-over death case and a case involving closed-head brain injuries.
• Represented a researcher in a suit involving a joint research agreement and ownership of clinical samples and data.
• Represented a condo association in a dispute with a neighboring hotel involving use of access easements.
• Represented a property management company in a potential class action challenging the charge-back of rent concessions to defaulting tenants.
• Represented USAA Life Insurance Co., Hartford Life Insurance Co., Health Insurance Association of America, and Military Officers Association of America against the United States Department of Veterans Affairs, involving reimbursement of health care costs to VA in connection with treatment of insured veterans. VA agreed to implement a new system for processing claims in accordance with Medicare standards.
• Successfully set aside several default judgments, including a $10 million judgment in Corpus Christi related to the death of a delivery driver allegedly caused by heat stroke.
• Assisted in trial and post-judgment proceedings in federal district court for a health products manufacturer in lawsuits against competing drug manufacturers for false advertising and unfair competition.
• In charge of legal analysis, briefing, and argument to the court in billion-dollar litigation between Samsung and Alcatel involving alleged theft of trade secrets by software engineers; extensively briefed and argued numerous legal issues to the court.
• Represented a West Texas rancher in a dispute over an access easement.
•  Represented trustees of a youth camp suing to enforce a condition precedent and right of re-entry and reverter in a warranty deed.

• Vindicated the rights of waterfront property owners at Medina Lake against a neighbor with a fraudulent deed who wrongfully excluded them from the beachfront in which the owners had an appurtenant easement.
• Represented a group of lakeside property owners seeking to protect waterfront from land regulation by municipal owner of Lake Wichita; effort resulted in a favorable settlement and major improvements in the lake.
• Represented a developer enforcing a utility service agreement for a residential subdivision against a water district.
• Represented over 200 waterfront property owners at Medina Lake in a lawsuit against Bexar-Medina-Atascosa Counties Water Control & Improvement District No. 1 to resolve disputed ownership of lands below the high-water line of the lake; reached a favorable settlement securing permanent, exclusive ownership for the owners.
• Represented Dallas Area Rapid Transit on appeal in a $40 million property damage case arising from alleged diversion of surface water and flooding of a downtown Dallas skyscraper.
• Former General Counsel for the Edwards Aquifer Authority (EAA). Oversaw the establishment of the new agency and transition from the prior Edwards Underground Water District, drafted the EAA’s original rules governing filing and processing of permit applications and critical period management, advised the EAA on numerous administrative and water law related issues.
• Represented the initial Board of Directors of the EAA in trial and on direct appeal to the Texas Supreme Court in Medina County Underground Water Conservation District v. Barshop, successfully defending the constitutionality of the legislation creating the EAA.
• Represented the Edwards Underground Water District (EUWD), the predecessor of the EAA. Lead Counsel in the lawsuit brought by the EUWD (along with San Antonio River Authority and City of San Antonio) against Living Water Artesian Springs, Ltd. (the “Catfish Farm”) to stop pollution of Medina River and the waste of groundwater; including contesting the entity’s application for a discharge permit at the Texas Natural Resources Conservation Commission (now the Texas Commission on Environmental Quality).
• Lead Counsel for the EUWD in litigation successfully seeking closure of an open, dilapidated well (the “Farmer’s Well”), which was leaking large amounts of aquifer water.
• Drafted major portions of the EUWD’s Demand Management Plan, including regulations on administrative procedure, metering, usage reporting, critical stages, variances, and enforcement provisions.
• Lead Counsel for the EUWD in the Endangered Species Act trial in federal court, Sierra Club v. Babbitt, and related litigation seeking the imposition of judicial controls on aquifer pumping to maintain spring flow at Comal and San Marcos Springs.
• Lead Counsel for the EUWD in contested case proceedings before the TNRCC relating to a change sought in authorized uses for Medina Lake water with a potential negative impact on Aquifer recharge.

• Albertsons, Inc. v. Ortiz, 856 S.W.2d 836 (Tex. App.–Austin 1994, writ ref’d) (constitutional torts–no constitutional right to sue for damages for alleged violation of free speech rights in connection with picketing of grocery store by farmworker’s union).
• In re Alcatel USA, Inc., 11 S.W.3d 173 (Tex. 2000) (mandamus, disallowing apex depositions of high corporate officers).
• Allstate Insurance Co. v. Watson, 876 S.W.2d 145 (Tex. 1994) (insurance law–third party claimant has no direct cause of action for unfair claims settlement practices against liability insurer).
• Asmussen v. Wilson, 775 S.W.2d 676 (Tex. App.–San Antonio 1989, writ denied) (usury–summary judgment against business reversed).
• Bangert v. Shaffner, 848 S.W.2d 353 (Tex. App.–Austin 1993, writ denied) (torts negligence appropriate standard of liability in connection with parasailing accident).
• Baptist Memorial Healthcare System v. Casanova, 2 S.W.3d 306 (Tex. App.—San Antonio 1999, pet. denied) (employment law—worker’s compensation—anti-retaliation statute—enforcement of uniform employee absence control policy).
• Barshop v. Medina County Underground Water Conservation District, 925 S.W.2d 618 (Tex. 1996) (direct appeal) (water law–Edwards Aquifer Act, creating regional regulation of Edwards Aquifer, is facially constitutional).
• Boyles v. Kerr, 855 S.W.2d 593 (Tex. 1993) (torts–Texas does not recognize an independent cause of action for negligent infliction of emotional distress).
• Brown v. Commission for Lawyer Discipline, 980 S.W.2d 675 (Tex. App.—San Antonio 1998, no pet.) (special counsel for State Bar) (attorney discipline–appeal from disciplinary suspension).
• Dallas Area Rapid Transit v. RT Realty, L.P. (Tex. 2001) (interlocutory appeal seeking relief from denial of plea to the jurisdiction based on governmental immunity).
• De Los Santos v. Southwest Texas Methodist Hospital, 802 S.W.2d 749 (Tex. App.–San Antonio 1990, no writ) (medical malpractice–summary judgment for hospital and physician affirmed).
• Federal Land Bank Association v. Sloane, 825 S.W.2d 439 (Tex. 1991) (amicus brief) (torts–negligent misrepresentation limited to recovery of pecuniary losses).
• First Gibraltar Bank, FSB v. Farley, 895 S.W.2d 425 (Tex. App.–San Antonio 1995, writ ref’d) (commercial paper–summary judgment reversed, bank adduced some evidence of ownership of note and guaranty).
• Flynn v. Keller Williams Inc. Realtors, No. 04-12-00307-CV, 2013 Tex. App. LEXIS 2465 (Tex. App.—San Antonio March 13, 2013) (summary judgment granted against seller in abortive sale of property; no evidence of any misrepresentation by the real estate agent).
• Gant v. De Leon, 786 S.W.2d 259 (Tex. 1990) (per curiam) (limitations–plaintiff failed to timely serve lawsuit).
• Gonzales v. Olshan Foundation Repair Co., No. 11-0311, 2013 Tex. LEXIS 231 (Tex. 2013) (express warranty that sufficiently describes the manner, performance, or quality of services supersedes the implied warranty of good and workmanlike repairs to existing tangible goods); Southwest Olshan Foundation Repair Co. v. Gonzales, 345 S.W.3d 431 (Tex. App. – San Antonio 2010, pet. filed).
• Guillen v. De Leon, 887 S.W.2d 503 (Tex. App.–San Antonio 1994, no writ) (appellate procedure–appeal dismissed).
• Healthpoint, Ltd. v. Stratus Pharmaceuticals, Inc., No. 01-50689 (5th Cir., Jan 25. 2002) (appeal of preliminary injunction granted against unfair competition and false advertising in pharmaceutical case).
• Heron Financial Corp. v. United States Testing Co., 926 S.W.2d 329 (Tex. App.–Austin 1995, writ denied) (limitations–discovery rule applies to non-discovery of garbage dump underneath apartment project).
• Hopper v. Safeguard Business Systems, Inc., 787 S.W.2d 624 (Tex. App.–San Antonio 1990, no writ) (interlocutory appeal) (defective injunction).
• Johnson v. J. Hiram Moore, LTD., 763 S.W.2d 496 (Tex. App.–Austin 1988, writ denied) (torts–judgment for breach of fiduciary duty against partners affirmed).
• Khan v. Kosowska, No. 04-93-0188-CV (Tex. App.–San Antonio 1993, unpublished) (dismissal for failure to appear for trial affirmed).
• Lance v. Robinson, 2018 Tex. LEXIS 246 (March 23, 2018) Waterfront property owners may use the Declaratory Judgments Act to protect appurtenant easement rights in the beachfront from exclusion by the holder of a fraudulent deed. See also Robinson v. Lance, No. 04-12-00754-CV (Tex. App.—San Antonio March 6, 2013) (interlocutory appeal—party granted temporary injunction sufficiently established ownership of express easement in waterfront property).
• Landry’s Seafood Restaurants, Inc v. Waterfront Cafe, Inc., 49 S.W.3d 544 (Tex. App — Austin 2001, pet. dism’d) (affirming summary judgment against tortious interference claim based on affirmative defense of legal justification).
• In re Olshan Foundation Repair Co., 328 S.W.3d 883 (Tex. 2010) (in three of four consolidated cases, trial court abused discretion in refusing to enforce arbitration clauses; state anti-arbitration statute was preempted by the Federal Arbitration Act).
• Ozuna v. Southwest Bio-Clinical Laboratories, 766 S.W.2d 900 (Tex. App.–San Antonio 1989, writ denied) (dismissal for failure to prosecute with due diligence).
• Plaisance v. Texaco, Inc., 937 F.2d 1004 (5th Cir. 1991) (amicus brief) (emotional distress–no recovery for unforeseeable emotional distress under Jones Act).
• Republic Insurance Co. v. Stoker, 903 S.W.2d 338 (Tex. 1995) (amicus brief) (insurance law—insurance company absolved of bad faith liability where there is no coverage).
• Ritter v. Delaney, 790 S.W.2d 29 (Tex. App.–San Antonio 1990, writ ref’d) (medical malpractice–physician, not hospital, has duty to obtain informed consent).
• Roberts v. Southwest Texas Methodist Hospital, 811 S.W.2d 141 (Tex. App.–San Antonio 1991, writ denied) (medical malpractice–one notice of claim was sufficient to satisfy notice requirement of medical liability act as to multiple defendants).
• Roeben v. La Quinta (5th Cir. 1994) (unpublished) (employment discrimination—summary judgment in favor of employer affirmed, subjective belief of employee insufficient to sustain claim for age discrimination).
• Sadler v. Texas Farm Bureau Mutual Insurance Cos., No. 04-12-00789-CV (Tex. App.―San Antonio July 26, 2013, no pet.) (mem. op.) (affirming no-evidence summary judgment on DTPA misrepresentation claim).
• Board of Adjustment for the City of San Antonio & Sarosh Management, LLC d/b/a A-Z Food Mart, No. 15-0469 (Tex. 2016) (appeal from judicial review of order of board of adjustment).
• Seibert v. AFL-CIO Union Pines Housing Trust, No. 04-95-00575-CV (Tex. App.–San Antonio, 1995) (unpublished) (interlocutory appeal) (injunctions–temporary injunction violated free speech rights).
• Smith v. Reid, 2014 Tex. App. LEXIS 13703 (San Antonio Dec. 23, 2014, pet. denied) (rejecting claim of easement by estoppel).
• Soto v. First Gibraltar Bank, FSB, 868 S.W.2d 400 (Tex. App.–San Antonio 1994, writ ref’d) (banking law–bank properly set off funds in inter vivos trust account).
• Spencer v. Overpeck, No. 04-16-00565-CV, 2017 Tex. App. LEXIS 2223 (App.—San Antonio Mar. 15, 2017) (affirming in part trial court’s order denying motion to dismiss defamation and other claims based on Texas Citizen Participation Act) (pet. denied).
• State Bar of Texas v. Leighton, 956 S.W.2d 667 (Tex. App.—1997, writ denied) (special counsel for State Bar) (attorney discipline–affirming denial of motion to revoke probation of suspension).
• Texas Farm Bureau Mutual Insurance Co. v. Rogers, 351 S.W.3d 103 (Tex. App.―San Antonio 2011, pet. denied) (heirs lacked standing to assert claims belonging to deceased parent; policy was void due to insured’s concealment of criminal record, thus could not be ratified).
• Thompson v. El Centro Del Barrio, 905 S.W.2d 356 (Tex. App.–San Antonio 1995, writ ref’d) (Whistleblower Act–trial court properly dismissed claim against nonprofit organization and its director).
• Twyman v. Twyman, 855 S.W.2d 619 (Tex. 1993) (torts–Texas recognizes intentional infliction tort, but not negligent infliction tort).
• Warrilow v. Norrell, 791 S.W.2d 515 (Tex. App.–Corpus Christi 1989, writ ref’d n.r.e.) (insurance law–follows California concurrent cause doctrine in liability insurance context, but judgment reversed for improper trial testimony of plaintiff’s attorney).
• Werner v. International Bank of Commerce, No. 95-50255 (5th Cir. 1995) (per curiam) (unpublished) (misrepresentation–summary judgment for bank affirmed).
• USAA v. United States Dep’t of Defense, 92 F.3d 295 (5th Cir. 1996) (health care benefits–Department of Defense reimbursement statute applied to medical payments coverage in automobile policy).
• Zepeda v. Boerne ISD, 07-51252, 2008 U.S. App. LEXIS 20566 (5th Cir. 2008) (plaintiff sued school prematurely for delay in admitting student who resided with non-parent relative in the district, claim was not ripe because superintendent and board of trustees never decided to deny admission).