Archive for June, 2010

Dallas Court of Appeals cases for the week of June 21, 2010

Sunday, June 27th, 2010

For the week of June 21, 2010, the Dallas Court of Appeals issued eighteen opinions in civil cases.  Eight of these dispose of a case without a detailed discussion of the merits (e.g., dismissing a case for want of prosecution, dismissing a case for mootness, dismissing a case pursuant to settlement).  The remaining ten cases are as follows:

2327 Manana LLC v. Summit Elec. Supply Co., Inc. (05-09-00107-CV) – Recites well-established (1) standard for reviewing summary judgment; (2) rule that purchaser of real property is charged with knowledge of all recorded instruments; and (3) rule that purchaser of real property is charged with knowledge of all prior deeds in their chain of ownership, regardless of whether those deeds were recorded.

Bolling v. Farmers Branch Indep. Sch. Dist. (05-08-01566-CV) – Recites well-established (1) rule that an individual who is a party to civil litigation has the right to represent himself at trial and on appeal; (2) principle that pro se litigants have the responsibility to adhere to rules of evidence and procedure; and (3) rule that appellate brief must be supported by record references.

Comcast Cable of Plano, Inc. v. City of Plano (05-09-00754-CV) – Recites well-established (1) standard for reviewing an appealable order denying summary judgment; (2) rule that federal preemption is an affirmative defense; (3) rule that statutory construction is reviewed de novo; (4) rule that, when state law conflicts with federal law, the state law is preempted and has no effect; and (5) rule that legislative history cannot be used to alter the terms of an unambiguous statute.

DFW Aero Mechanix, Inc. v. Airshares, Inc. (05-09-00317-CV) – Recites well-established (1) general rule that, to preserve error for appeal, record must show that complaint was presented to trial court and either that trial court ruled on the complaint or that complaining party objected to trial court’s refusal to rule; (2) rule that, to raise factual sufficiency complaint on appeal, the party must have presented this complaint to the trial court in a motion for new trial; and (3) rule that, when party challenges legal sufficiency of the evidence, the appellate court weighs all of the evidence in the light most favorable to the challenged finding.

DMC Valley Ranch, L.L.C. v. HPSC, Inc. (05-08-01519-CV) – Recites well-established (1) rule that trial court may consider summary judgment evidence filed after the summary judgment hearing, but may not consider new summary judgment grounds; (2) rule that party may amend its pleadings without leave of court up to seven days before summary judgment hearing; (3) rule that trial court errs if it grants summary judgment on claim not addressed in motion for summary judgment; and (4) rule that a party seeking attorneys’ fees has a duty to segregate nonrecoverable fees from recoverable fees and to segregate the fees owed by different parties.

In re Estate of Hendler (05-08-01146-CV) – Recites well-established (1) standard for reviewing summary judgment; (2) definition of “pretermitted child”; (3) definition of “testamentary intent”; and (4) rule that motion for summary judgment must stand or fall on grounds expressly presented in the motion.

In re Goodyear Tire & Rubber Co. (05-10-00485-CV) – Recites well-established (1) standard for determining whether mandamus relief is available; (2) rule that trial court abuses its discretion if it orders discovery exceeding scope permitted by the rules; (3) rule that request for production of documents must be tailored to include only matters relevant to the case; (4) definition of “trade secret”; (5) rule that trade secrets are exempt from discovery if nondisclosure won’t conceal a fraud or work an injustice; and (6) factors used to determine whether a trade secret exists.

Owen v. Owen (05-09-00709-CV) – Recites well-established standard for reviewing trial court’s award of spousal maintenance.

Pollard v. Pollard (05-08-01615-CV) – Recites well-established (1) standard for reviewing whether trial court had jurisdiction; (2) rule that cause of action for divorce terminates on the death of either spouse prior to rendition of judgment granting divorce; (3) rule that, absent a motion extending plenary power, the trial court loses its plenary power thirty days after judgment is signed; and (4) rule that timely notice of appeal is essential to invoke appellate court’s jurisdiction.

Pollard v. Pollard (05-09-010870-CV) (companion case to the case immediately above) – Recites well-established (1) general rule that parties may only appeal from a final judgment; and (2) rules governing when probate order is appealable.

Dallas Court of Appeals cases for the week of June 14, 2010

Sunday, June 27th, 2010

For the week of June 14, 2010, the Dallas Court of Appeals issued twenty-eight opinions in civil cases.  Twenty of these dispose of a case without a detailed discussion of the merits (e.g., dismissing a case for want of prosecution, dismissing a case for mootness, dismissing a case pursuant to settlement).  The remaining eight cases are as follows:

Munir Bata, L.L.C. v. Vestal (05-10-00346-CV) – Recites well-established (1) rule that amended judgment signed after expiration of plenary power is void; and (2) rule that notice of appeal must be a separate document rather than included as part of another document.

Beckham Group, P.C. v. Snyder (05-09-00491-CV) – Recites well-established (1) rule that appellate jurisdiction is never presumed; and (2) principle that a judgment is final only if it disposes of all parties and all claims.

Bridwell v. Mulder (05-09-01339-CV) – Recites well-established (1) standard for reviewing trial court’s dismissal for want of prosecution; (2) rule that trial court may not dismiss for want of prosecution without first providing party with notice and opportunity to be heard; (3) rule that failure to appear at trial is not a proper basis for dismissal with prejudice; and (4) definitions of terms “bench writ,” “bench warrant”, and “writ of habeas corpus ad testificandum”.

Carter v. Lavergne (05-09-00333-CV) – Recites well-established (1) standard for reviewing trial court’s ruling on motion for new trial; (2) deadline for filing motion for new trial; (3) deadline for filing amended motion for new trial; and (4) rule that written orders or judgments control over conflicting oral pronouncements.

Europa Int’l, Ltd. v. Direct Access Trader Corp. (05-08-00771-CV) – Recites well-established (1) standard for reviewing turnover orders; and (2) elements which must be met to establish entitlement to turnover order.

Excel Transp. Servs., Inc. v. Aim High Logistics Servs., LLC (05-09-00154-CV) – Recites well-established (1) standard for reviewing challenge to legal sufficiency of adverse finding as to an issue on which the appellant did not have the burden of proof; (2) definition of “more than a scintilla of evidence”; and (3) rules governing when lost profits may be recovered and how damages for lost profits are measured.

Harlow Land Co., Ltd. v. City of Melissa (05-08-01178-CV) – Recites well-established (1) rule that party may generally not attack a judgment on appeal if the party has voluntarily accepted the benefits of the judgment; and (2) rule that appellate court may consider documents outside of the appellate record for the purpose of determining whether appellate court has jurisdiction.

McClain v. USA Today Newspaper (05-08-01123-CV) – Recites well-established (1) rule that, absent a filing that extends the deadline, the deadline to file a notice of appeal is 30 days after judgment; (2) rule that deadline to file notice of appeal can be extended, but only if notice of appeal is filed within 15 days after the deadline; (3) rule that pro se litigants are held to the same standards as licensed attorneys; and (4) rule that timely filing of notice of appeal is jurisdictional.

Dallas Court of Appeals cases for the week of June 7, 2010

Monday, June 14th, 2010

For the week of June 7, 2010, the Dallas Court of Appeals issued twenty opinions in civil cases.  Eight of these dispose of a case without a detailed discussion of the merits (e.g., dismissing a case for want of prosecution, dismissing a case for mootness, dismissing a case pursuant to settlement).  The remaining twelve cases are as follows:

Allman v. Butcher (05-09-00191-CV) – Recites well-established (1) standard for reviewing legal sufficiency of evidence; (2) standard for reviewing “matter of law” challenge; (3) standard for reviewing factual sufficiency of evidence; (4) elements of breach of contract claim; and (5) rule that, when presented with conflicting evidence, trier of fact may believe one witness and disbelieve others.

Centex/Vestal v. Friendship West Baptist Church (05-09-00053-CV) – Recites well-established (1) standard for reviewing trial court’s decision to vacate or confirm arbitration award; (2) presumptions applicable to reviewing arbitration award; and (3) standard for determining whether arbitrator has exceeded his power. 

City of Balch Springs v. Hall (05-09-00984-CV) – Recites well-established (1) rule that governmental immunity defeats trial court’s subject matter jurisdiction; (2) standard for reviewing whether trial court has subject matter jurisdiction; (3) Tort Claims Act waiver of governmental immunity in certain circumstances; (4) rule that, if off-duty police officer observes and responds to a crime, he becomes an on-duty officer; (5) rule regarding whether a person is acting within the scope of his employment; and (6) distinction between sovereign immunity and governmental immunity.

Brown v. EMC Mortgage Corp. (05-08-00914-CV) – Recites well-established (1) rule that limitations is an affirmative defense and is waived if not pleaded; and (2) rule that an appellant’s reply brief may not be used to raise new issues on appeal.

Michael v. City of Dallas (05-09-00210-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) rules governing shifting burdens of proof in employment discrimination context; and (3) elements of employment discrimination claim.

Owen v. Owen (05-09-00709-CV) – Recites well-established (1) standard for reviewing trial court’s award of spousal maintenance; (2) principles governing applicability of legal and factual sufficiency to abuse of discretion standard of review; and (3) presumptions applicable to award of spousal maintenance.

Pollard v. Hanschen (05-09-00704-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) no-evidence summary judgment standard; and (3) rule governing tolling of limitations in legal malpractice case until all appeals are exhausted in underlying suit.

Stanley v. Reef Securities, Inc. (05-08-01415-CV) – Recites well-established (1) standard for reviewing post-judgment turnover order; (2) standard for reviewing order denying appointment of receiver; (3) definition of “partnership interest”; (4) definition of “charging order”; (5) rule regarding when turnover relief may properly be sought; (6) rules regarding property which is exempt from turnover relief; (7) rule that, absent an agreement, a partner is not entitled to compensation for services to the partnership; (8) rule that judgment creditor that is successful in obtaining turnover relief is entitled to attorneys’ fees; and (9) rule that federal case law is not binding on state appellate court interpreting state statute.

Streety v. Thi (05-09-00556-CV) – Recites well-established (1) general rule that, if a party revokes consent to settlement agreement prior to judgment being rendered, the settlement agreement is subject to enforcement only through a separate claim for enforcement; and (2) principle that this general rule does not apply to suits affecting the parent-child relationship if the settlement agreement complies with statutory requisites, as statute requires trial court to simply render judgment on such settlement agreements.

Texas Alcoholic Beverage Comm’n v. Silver City Club (05-09-00422-CV) – Recites well-established (1) standard for reviewing trial court’s determination of questions of law; (2) “single-subject rule,” which provides that no bills in the Texas Legislature other than general appropriation bills shall contain more than one subject; (3) rule that a law that contains more than one subject is void as to the subject not expressed in the title; and (4) rule that statutes are liberally construed in favor of their constitutionality.

Vela v. Manning (05-09-00400-CV) – Recites well-established rule that, to preserve error for appeal, record must show that complaint was presented to trial court and either that trial court ruled on the complaint or complaining party objected to trial court’s refusal to rule.

Vocalspace, LLC v. Lorenso (05-09-00473-CV) – Recites well-established (1) standard for reviewing imposition of sanctions; and (2) rule that party requesting sanctions for discovery dispute waives the request if the party does not obtain a ruling on the dispute before start of trial.

Dallas Court of Appeals cases for the week of May 31, 2010

Monday, June 14th, 2010

For the week of May 31, 2010, the Dallas Court of Appeals issued fifteen opinions in civil cases.  Nine of these dispose of a case without a detailed discussion of the merits (e.g., dismissing a case for want of prosecution, dismissing a case for mootness, dismissing a case pursuant to settlement).  The remaining six cases are as follows:

Foley v. Trinity Indus. Leasing Co. (05-09-01184-CV) – Recites well-established (1) standard of reviewing trail court’s ruling on a special appearance; (2) presumptions applicable when trial court does not file findings of fact; (3) rules governing shifting burdens of proof in special appearance context; (4) rules governing when Texas courts may assert personal jurisdiction over nonresident; and (5) rule governing application of alter ego principle.

Halmos v. Bombardier Aerospace Corp. (05-08-00865-CV) – Recites well-established (1) rule that jury instruction may not comment on weight of evidence; (2) standard of reviewing correctness of jury instruction; (3) principle of accord and satisfaction; (4) standard for reviewing directed verdict; (5) standard for reviewing legal sufficiency of evidence; (6) elements of breach of contract claim; (7) measure of damages for breach of contract; and (8) standard of reviewing trial court’s ruling that a party’s amended pleading may not be considered.

Ham v. Equity Residential Prop. Mgmt. Servs. Corp. (05-08-01297-CV) – Recites well-established (1) no-evidence summary judgment standard; (2) test for cause-in-fact; (3) rule governing conclusory opinions; and (4) spoliation rule.

In re Kiefer (05-10-00452-CV) – Recites well-established (1) standard for when mandamus relief is available; and (2) rule that mandamus is available when trial court refuses to either grant timely-filed recusal motion or to refer the motion to the presiding judge of the administrative district.

Texas Alcoholic Beverage Comm’n v. Cabanas (05-09-00126-CV) – Recites well-established standard for reviewing decisions of administrative agencies.

 Wet-Line, L.L.C. v. Amazon Tours, Inc. (05-07-0156-CV) – Recites well-established (1) standard of reviewing trail court’s ruling on special appearance; and (2) rules governing when Texas courts may assert personal jurisdiction over nonresident.