Archive for July, 2010

Dallas Court of Appeals cases for the week of July 12, 2010

Saturday, July 17th, 2010

For the week of July 12, 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:

City of Dallas v. Turley (05-09-00791-CV) – Recites well-established (1) rule that governmental immunity from suit defeats a trial court’s subject matter jurisdiction; (2) standard of reviewing trial court’s ruling on plea to the jurisdiction; and (3) rule that plea to the jurisdiction can be based on pleadings or on evidence.

Communities Helping Communities, Inc. v. City of Lancaster (05-08-01516-CV) – Recites well-established standards for reviewing traditional summary judgment and no-evidence summary judgment.

Drysdale Energy, L.P. v. Petrzelka (05-09-00485-CV) – Recites well-established standard for reviewing dismissal for want of prosecution.

Ritter v. Las Colonitas Condo. Ass’n (05-09-00666-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) rule that summary judgment may be granted on claims added after the motion for summary judgment was filed if the movant has conclusively disproven ultimate facts central to all causes of action or if the claims subsequently added are derivative of the claims addressed in the motion; and (3) rule that substantive defects in affidavits may be raised for the first time on appeal.

Texas Dep’t of Family & Protective Servs. v. ASI Gymnastics, Inc. (05-09-01469-CV) – Recites well-established (1) standard for reviewing whether agency has exclusive jurisdiction; (2) presumption that district courts are authorized to review disputes unless the constitution or other law conveys exclusive jurisdiction on another court or administrative agency; (3) principle that an agency has exclusive jurisdiction when a pervasive regulatory scheme indicates that the legislature intended for the regulatory process to be the exclusive means of remedying the problem to which the regulation is addressed; and (4) rule that, if an agency has exclusive jurisdiction to resolve a dispute, a party must first exhaust administrative remedies before trial court has subject matter jurisdiction.

Webb v. Voga (05-09-00074-CV) – Recites well-established (1) rule that subject matter jurisdiction may be raised for the first time on appeal and may not be waived; (2) rule that court of appeals must ascertain that subject matter jurisdiction exists even if the parties have not questioned it; (3) standard for reviewing standing; (4) definition of “standing”; (5) rule that Texas courts do not have the authority to render advisory opinions; (6) definition of “advisory opinion”; (7) rule that, if a judgment is void because the trial court lacked jurisdiction, court of appeals must vacate the judgment and dismiss the case; and (8) definition of “restrictive covenant”.

Dallas Court of Appeals cases for the week of July 5, 2010

Sunday, July 11th, 2010

For the week of July 5, 2010, the Dallas Court of Appeals issued seven opinions in civil cases.  Two 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 five cases are as follows:

Greenville Surgery Ctr., Ltd. v. Beebe (05-08-01045-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; and (2) standard for reviewing statutory construction.

Rawlins v. Weaver (05-09-00090-CV) – Recites well-established (1) rule that appellate jurisdiction is never presumed; and (2) holding that a probate court’s order authorizing sale of real estate is an interlocutory order.

Rone Eng’g Serv., Ltd. v. Culberson (05-09-00814-CV) – Recites well-established (1) rules governing restricted appeals; (2) principle that default judgment be supported by a record showing strict compliance with rules governing services of process; (3) rule that, when attempted services of process is invalid, trial court does not have personal jurisdiction over the defendant; and (4) definition of “misnomer”.

Smith v. Shipp (05-09-01204-CV) – Recites well-established (1) definition of “restricted appeal”; and (2) rule that, when a court signs an order of dismissal, the clerk is required to give immediate notice to the parties or their attorneys by first class mail.

In re Thomas (05-10-00753-CV) – Recites well-established rule that court of appeals does not have mandamus jurisdiction over a court clerk.

Dallas Court of Appeals cases for the week of June 28, 2010

Saturday, July 3rd, 2010

For the week of June 28, 2010, the Dallas Court of Appeals issued twelve opinions in civil cases.  Three 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 nine cases are as follows:

A & L Eng’g & Consulting, Inc. v. Shiloh Apollo Plaza, Inc. (05-09-00527-CV) – Recites well-established (1) standard for reviewing trial court’s decision to grant or deny attorneys’ fees in declaratory judgment case; (2) general rule that attorneys’ fees are not recoverable unless allowed by contract or statute; and (3) general rule that, when attorneys’ fees are authorized for some but not all of a party’s claims, the party has a duty to segregate the recoverable from the non-recoverable attorneys’ fees.

Bakhtari v. Estate of Dumas (05-09-00200-CV) – Recites well-established (1) standard for reviewing trial court’s decision on motion to dismiss health care liability claim based on deficient expert report; (2) rule that a trial court’s comments during a hearing do not limit the grounds on which an order can be upheld on appeal; and (3) rule that, in health care liability claim, required expert report need not be provided by a physician from the same community or similar community as the defendant physician.

City of Richardson v. Gordon (05-09-00532-CV) – Recites well-established (1) standard for reviewing questions of law; (2) principle that a plaintiff has the burden to plead facts showing that the trial court has subject matter jurisdiction; (3) rule that, if the evidence creates a fact issue concerning jurisdiction, a plea to the jurisdiction must be denied; and (4) rule that a declaratory judgment action does not give a trial court jurisdiction to pass upon hypothetical or contingent situations.

In re Ismoralda Fish Co. Tex., L.L.C. (05-10-00344-CV) – Recites well-established (1) rule that scope of discovery is generally withing a trial court’s discretion; (2) principle that ordering discovery outside the scope permitted by the rules of procedure constitutes an abuse of discretion; (3) rule that, when punitive damages are not recoverable, information about net worth is not discoverable; and (4) rule that, when trial court orders discovery that is not relevant, trial court abuses its discretion.

Moir v. Citibank (S.D.), N.A. (05-09-00641-CV) – Recites well-established (1) rule that pro se litigants are held to the same standards as licensed attorneys; (2) standard for reviewing traditional summary judgment; and (3) elements of common law “account stated” cause of action.

Nautilus Ins. Co. v. Steinberg (05-08-01418-CV) – Recites well-established (1) standard for reviewing trial court’s construction of an insurance contract; (2) rule that an insurer bears the burden of pleading and proving that a policy exclusion applies to bar coverage; (3) definition of “theft”; and (4) rule that intent is a question of fact to be determined by the trier of fact.

Shutter v. Wells Fargo Bank, N.A. (05-09-00639-CV) – Recites well-established definition of “plea in abatement”.

Stromberger v. Turley Law Firm (05-09-00029-CV) – Recites well-established (1) standard for reviewing trial court’s imposition of sanctions; and (2) rule that a discovery sanction should be no more severe than necessary.

Williams v. Bank of N.Y. Mellon (05-09-00710-CV) – Recites well-established (1) definition of “forcible detainer”.