Archive for August, 2010

Dallas Court of Appeals cases for the week of August 23, 2010

Tuesday, August 31st, 2010

For the week of August 23, 2010, the Dallas Court of Appeals issued fourteen 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 five cases are as follows:

Kaye/Bassman Int’l Corp. v. Help Desk Now, Inc. (05-08-01708-CV) – Recites well-established (1) traditional summary judgment standard; (2) no-evidence summary judgment standard;(3) rule that, when the provisions of a contract appear to conflict, a court should attempt to harmonize the provisions and assume that the parties intended every provision to have some effect; (4) principle that it is improper to grant a motion for summary judgment based on a contract when the contract is ambiguous, as interpretation of an ambiguous contract is a fact issue; and (5) rule that, if a ground for summary judgment was not presented in writing to the trial court, it cannot be considered by the court of appeals.

Georgia-Pacific Corp. v. Bostic (05-08-01390-CV) – Recites well-established (1) standard for reviewing legal sufficiency of the evidence; (2) definition of “general causation”; and (3) principle as to what must be established to prove “specific causation”.

Latham v. Burgher (05-08-01477-CV) – Recites well-established (1) standard for reviewing trial court’s instructions section of jury charge; (2) definition of “actual fraud” in the context of piercing the corporate veil; (3) standard for reviewing legal sufficiency of the evidence; (4) standard for reviewing factual sufficiency of the evidence; and (5) standard for applying alter ego doctrine in piercing the corporate veil.

Preston Nat’l Bank v. Stuttgard Auto Ctr, Inc. (05-09-00020-CV) – Recites well-established (1) no-evidence summary judgment standard; and (2) rule that, when multiple grounds are raised in a motion for summary judgment and the trial court does not specify the grounds relied upon for its ruling, the appellate court will affirm the summary judgment if any of the grounds advanced in the motion are meritorious.

Taylor v. Fossett (05-09-01271-CV) – Recites well-established (1) standard for reviewing trial court’s order on motion to dismiss a health care liability claim; (2) principle that a trial court has no discretion in determining what the law is or applying the law to the facts; and (3) requirements imposed upon an “expert report” in the context of a health care liability claim.

Dallas Court of Appeals cases for the week of August 16, 2010

Saturday, August 21st, 2010

For the week of August 16, 2010, the Dallas Court of Appeals issued fourteen opinions in civil cases.  Seven 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 seven cases are as follows:

Booker v. Bank of America, N.A. (05-09-00755-CV) –  Recites well-established no-evidence summary judgment standard.

Berthelot v. Brinkman (05-09-00216-CV) –  Recites well-established (1) burden of proof in declaratory judgment action; (2) traditional summary judgment standard; (3) no-evidence summary judgment standard; (4) definition of “real property”; (5) definition of “personal property”; and (6) standard for determining when parol evidence is admissible.

Chubb Lloyds Ins. Co. v. Andrew’s Restoration, Inc. (05-08-01099-CV) – Recites well-established (1) standard for reviewing legal sufficiency challenge; (2) standard for reviewing factual sufficiency challenge; (3) rule that the statute of frauds applies to a promise by one person to pay another’s debt; (4) elements of a valid contract; (5) elements which must be shown to prove that an offer was made; (6) definition of “illegal contract”; (7) rule that, whether a contract is unconscionable at the time it is formed is a question of law; (8) factors considered in determining whether a contract is unconscionable; (9) factors that may contribute to an “unfair bargaining process”; (10) rule that, if possible, appellate court must interpret jury’s findings in a manner to support the judgment; (11) rule that an appellate court is obligated to follow the law as set forth in that appellate court’s prior panel decisions unless the law is changed by the court en banc or by a higher authority; (12) rule that a party is not entitled to recovery of attorneys’ fees in a DTPA case where a jury awards no damages; and (13) rule that, when a trial court omits a jury question, the party who relies on that question must tender that question in writing in substantially correct form and obtain a ruling in order to preserve error.

In re Cullar (05-10-00979-CV) – Recites well-established rule that an appellate court may not resolve factual disputes in a mandamus proceeding.

Sheehan v. Adams (05-08-01340-CV) –  Recites well-established (1) standard for reviewing judgment notwithstanding the verdict; (2) rule that a vital fact may not be established by piling inference upon inference; (3) principle that a defendant cannot be held liable under the DTPA for failure to disclose facts that the defendant does not know; and (4) rule that pure expressions of opinion will not support an action for fraud.

TCAP Corp. v. Gervin (05-09-00620-CV) –  Recites well-established (1) standard for reviewing rulings on applications for turnover orders; and (2) principle that, once a partnership distribution is made, it is no longer the partnership’s interest and instead becomes the partner’s personal property.

Winn v. EPG Partners, LLC (05-08-00716-CV) – Recites well-established rule that a party to a lawsuit cannot ask something of the trial court and then complain on appeal that the trial court committed error in granting that party’s request.

Dallas Court of Appeals cases for the week of August 9, 2010

Saturday, August 14th, 2010

For the week of August 9, 2010, the Dallas Court of Appeals issued seven 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 four cases are as follows:

Alencar v. Shaw (05-09-01262-CV) –  Recites well-established (1) standard for determining whether “minimum contacts” are established for personal jurisdiction analysis; (2) standard for determining whether “general jurisdiction” is established for personal jurisdiction analysis; and (3) standard for reviewing trial court’s ruling on special appearance.

In re P.C.S. (05-08-00438-CV) –  Recites well-established (1) standard for reviewing trial court’s construction of a statute; and (2) standard for reviewing trial court’s setting of child support payments.

Turner v. Franklin (05-08-00011-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) standard for reviewing no-evidence summary judgment; and (3) elements required to establish gross negligence.

Wikert v. Year One, Inc. (05-09-01543-CV) –  Recites well-established holding that whether a court has personal jurisdiction over a defendant is a question of law that often requires the resolution of factual issues.

Dallas Court of Appeals cases for the week of August 2, 2010

Saturday, August 14th, 2010

For the week of August 2, 2010, the Dallas Court of Appeals issued nine opinions in civil cases.  The nine cases are as follows:

Austin State Hosp. v. Graham (05-09-01312-CV) – Recites well-established rule that immunity from liability is an affirmative defense that does not affect a court’s jurisdiction to hear a case.

Dixon v. Herman (05-09-00544-CV) – Recites well-established elements of Deceptive Trade Practices Act cause of action.

Hinton v. City of Garland (05-09-00069-CV) – Recites well-established rule that a post-judgment motion for sanctions constitutes a motion to modify the judgment.

In re Ismoralda Fish Co. Texas, L.L.C. (05-10-00344-CV) – Recites well-established (1) principle that there is no right to a mandamus and that issuance of mandamus is at the discretion of the appellate court; (2) rule that net worth is discoverable in cases where punitive damages may be awarded; and (3) rule that trial court has no discretion to order discovery that exceeds the scope permitted by the rules.

In re Pamela Staley Declaratory Judgment Action (05-08-01171-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) elements of a valid contract; (3) elements of breach of contract claim; (4) rule that a previously denied motion for summary judgment may be granted without further motion or prior notice to the parties; and (5) elements which must be present for res judicata to apply.

In re S.C.S., a child (05-09-00832-CV) – Recites well-established standard for reviewing trial court’s granting of name change for a minor child.

Las Colinas Obstetrics-Gynecology-Infertility Ass’n, P.A. v. Villalba (05-09-00031-CV) – Recites well-established (1) standard for reviewing findings of fact; (2) standard for reviewing conclusions of law; (3) rule that judgment must conform to the pleadings; and (4) rule that a petition must be fair and adequate notice of the claims asserted.

Pate v. MSDW Office Partners, L.P. (05-09-000432-CV) – Recites well-established (1) standard for reviewing no-evidence summary judgment; (2) principle that whether a duty exists is a question of law; (3) definition of “invitee”; and (4) duty owed to a licensee.

Young v. Gumfory (05-08-00636-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) rule that, when trial court files findings of fact and conclusions of law following a non-jury trial, the party appealing must complain of specific findings of fact and conclusions of law; (3) standard for reviewing findings of fact; (4) standard for reviewing conclusions of law; (5) standard for reviewing legal sufficiency complaint; (6) definition of a “tender”; and (7) elements required for interpleader relief.

Dallas Court of Appeals cases for the week of July 26, 2010

Sunday, August 1st, 2010

For the week of July 26, 2010, the Dallas Court of Appeals issued twenty-one 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 thirteen cases are as follows:

Ahrens & Deangelli, P.L.L.C. v. Flinn (05-09-00415-CV) – Recites well-established (1) holding that Texas long-arm statute allows Texas courts to reach as far as federal due process requirements will allow; (2) requirements for asserting personal jurisdiction over a non-resident; and (3) standard for reviewing trial court’s ruling on special appearance.

Barton v. Sclafani Invs., Inc. (05-08-00790-CV) – Recites well-established standard for reviewing challenges to trial court rulings on motions for directed verdict and JNOV.

Dallas Area Rapid Transit v. Oncor Elec. Delivery Co. LLC (05-09-01500-CV) – Recites well-established (1) standard for reviewing whether trial court has subject matter jurisdiction; and (2) rule that a unit of state government is immune from suit and liability absent a waiver of immunity or legislative consent to sue.

Gay v. Advenir at Forest Lane (05-10-00401-CV) – Recites well-established rule that a notice of restricted appeal must be filed within six months after the underlying judgment or order was signed.

Johnson v. Managed Mortgage Inv. Fund, LP (05-09-01080-CV) – Recites well-established (1) rule that appellate jurisdiction is never presumed; and (2) rule that one court may not punish a party for contempt in violating the order of another court.

Daniel P. McDonald, M.D., P.A. v. Wachovia Bank (05-09-01028-CV) – Recites well-established (1) standard for determining whether appellate court has jurisdiction over an appeal; and (2) rule that a trial court judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record.

Pandozy v. City of Dallas (05-09-00587-CV) – Recites well-established “doctrine of virtual representation”.

PopCap Games, Inc. v. MumboJumbo, LLC (05-10-00301-CV) – Recites well-established rule that attorneys’ fees awarded by trial court need not be superseded.

Roe v. Ladymon (05-08-00417-CV) – Recites well-established rule that a party cannot be required to submit to arbitration any dispute which he has not agreed to submit.

Scheler v. Smith (05-08-01439-CV) –  Recites well-established (1) standard for reviewing traditional summary judgment; (2) rule that, when multiple grounds are raised in a motion for summary judgment and the trial court does not specify the grounds relied upon for its ruling, the appellate court will affirm the summary judgment if any of the grounds advanced in the motion are meritorious; (3) rule that, if an appellant does not challenge each possible ground on which summary judgment could have been granted, a court of appeals must uphold the summary judgment on the unchallenged ground; and (4) rule that, if a party has negligence and/or breach of contract claims available, an implied warranty does not arise.

Smith v. Rhodes Props., Ltd. (05-08-00856-CV) – Recites well-established definition of “ministerial act”.

TXU Portfolio Mgmt. Co., L.P. v. FPL Energy, LLC (05-08-01584-CV) – Recites well-established rule that, in general, whether a contractual provision is an enforceable liquidated damages provision or an enenforceable penalty is a question of law for the court to decide.

Wehrle v. Pacific Enter. Bank (05-10-00600-CV) – Recites well-established principle that a judgment which finally disposes of all remaining parties and claims is a final judgment, regardless of the language used in the judgment.

Dallas Court of Appeals cases for the week of July 19, 2010

Sunday, August 1st, 2010

For the week of July 19, 2010, the Dallas Court of Appeals issued nineteen opinions in civil cases.  Four 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 fifteen cases are as follows:

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 to file amended motion for new trial; and (3) rule related to conflicting oral and written trial court orders.

City of Dallas v. Jones (05-09-01379-CV) – Recites well-established (1) “law of the case” doctrine; (2) holding that Declaratory Judgment Act waives immunity for governmental entities when the declaratory relief sought involves a challenge to an ordinance or statute; (3) rule that acquiring an interest in land for public use is protected by immunity; and (4) rule that an equal protection claim may be asserted by a plaintiff if he alleges that he has been intentionally treated differently from other similarly situated and there is no rational basis for the difference in treatment.

Cooper v. Litton Loan Servicing LP (05-08-01056-CV) – Recites well-established (1) rule that a summary judgment disposing of claims not addressed in the motion for summary judgment is improper; and (2) rule that, if a party files a proper no-evidence summary judgment motion and the opposing party fails to file a timely response, the trial court must grant summary judgment.

Dunlap Enters. v. Roly Poly Franchise Systems, L.L.C. (05-08-01566-CV) –  Recites well-established standard for reviewing enforceability of forum selection clauses.

Falk & Fish L.L.P. v. Pinkston’s Lawnmower & Equip., Inc. (05-08-01389-CV) –  Recites well-established (1) standard for reviewing trial court’s order granting special appearance; and (2) standard for reviewing enforceability of forum selection clauses.

In re Behringer Harvard TIC Mgmt. Servs. LP (05-10-00624-CV) – Recites well-established (1) standard for granting mandamus relief; and (2) standard for reviewing trial court’s order appointing special master.

McAfee, Inc. v. Agilysys, Inc. (05-08-01168-CV) –  Recites well-established (1) rule that, when applying a contractual choice-of-law provision, Texas courts apply the substantive law of the choice-of-law provision but apply Texas law to matters of remedy and procedure; (2) rule that, when multiple grounds are raised in a motion for summary judgment and the trial court does not specify the grounds relied upon for its ruling, the appellate court will affirm the summary judgment if any of the grounds advanced in the motion are meritorious; (3) standard for reviewing a no-evidence summary judgment; (4) elements of a breach of contract claim; (5) rule that, unless there is evidence of fraud, bad faith, or illegality, causes of action for unjust enrichment, money had and received, and promissory estoppel are not applicable when an express contract governs the subject matter of the dispute; and (6) definition of the term “agent”.

Merritt v. Douglas (05-09-00180-CV) –  Recites well-established (1) standard for reviewing whether the trial court had subject matter jurisdiction; (2) rule that judges are immune from liability for judicial acts that are not performed in the clear absence of all jurisdiction; and (3) rule that appellate court indulges every presumption in favor of the regularity of trial court proceedings and documents.

Midwest Med. Supply Co., L.L.C. v. Wingert (05-07-01645-CV) – Recites well-established (1) rule that an error in failing to file findings of fact and conclusions of law when properly requested is harmful unless the record affirmatively shows that the complaining party suffered no harm; (2) rule that recovery of attorneys’ fees for breach of contract is a substantive issue, not a procedural issue; and (3) standard for reviewing trial court’s award of costs.

Moreno v. Silva (05-09-00624-CV) – Recites well-established (1) rule that pro se litigants are held to the same standards as licensed attorneys; (2) standard for reviewing denial of motion for continuance; (3) rule that, if a trial court allows an attorney to withdraw, the trial court must give the party time to obtain new counsel and time for the new counsel to investigate the case and prepare for trial; and (4) standard for reviewing traditional motion for summary judgment.

Russell v. Dallas Indep. Sch. Dist. (05-10-00563-CV) – Recites well-established rule that, once a case has been removed from state to federal court, the state court is divested of all jurisdiction over the case.

Shutter v. Wells Fargo Bank, N.A. (05-09-00639-CV) – Recites well-established (1) standard for reviewing trial court’s decision on a plea in abatement; (2) definition of “plea in abatement”; (3) definition of “forcible detainer”; and (4) rule that complaints regarding validity of sale of property, defects in foreclosure process, defects in title may not be determined in a forcible detainer and must be brought in a separate suit.

Smith v. McKinney Housing Auth. (05-08-01466-CV) – Recites well-established standard for reviewing denial of motion for continuance.

TC Dallas #1, LP v. Republic Underwriters Ins. Co. (05-08-00656-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; and (2) rule that, under Texas Uniform Declaratory Judgments Act, a party to a written contract may seek a judicial determination of the party’s contractual rights.

University of Tex. Sw. Med. Ctr. v. Gentilello (05-07-00845-CV) – Recites well-established (1) rule that governmental immunity from suit defeats a trial court’s subject matter jurisdiction; and (2) standard for reviewing whether trial court has subject matter jurisdiction.