Archive for November, 2010

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

Tuesday, November 30th, 2010

For the week of November 21, 2010, the Dallas Court of Appeals issued sixteen 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 seven cases are follows:

Alliance Royalties, LLC v. Boothe (05-09-01471-CV) – Recites well-established (1) standard for reviewing order declining a special appearance; and (2) rule that it is the province of the trier of fact to pass upon the credibility of evidence introduced before it and to accept all, part, or none of it.

Forest Chevrolet Cadillac, Inc. v. GMAC, LLC (05-10-00838-CV) – Recites well-established rule that a corporate cannot proceed in prosecuting an appeal without counsel.

Frito-Lay, Inc. v. Trinity Universal Ins. Co. (05-08-01263-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 an insurance policy is susceptible to more than one reasonable interpretation, any ambiguity is resolved in favor of coverage.

In re Cole (05-10-01401-CV) – Recites well-established rule that court of appeals does not have mandamus jurisdiction over the district clerk.

JJW Dev., LLC v. Stand Sys. Eng’g, Inc. (05-10-01359-CV) – Recites well-established rule that (1) an appellate court may extend the notice of appeal deadline if, within fifteen days after the deadline, the appellant files a motion that sets forth a reasonable explanation for the need for extension; and (2) rule that an explanation that shows a conscious or strategic decision to wait to file the notice of appeal is not reasonable.

Rothacker v. Rockwall County Dist. Court (05-10-00594-CV) – Recites well-established rule that county courts have jurisdiction to issue writs of mandamus in civil cases when the amount in controversy exceeds $200 but does not exceed $10,000 or where the writ is necessary to the enforcement of the county court’s jurisdiction.

Tucker v. Tucker (05-09-01203-CV) – Recites well-established (1) rule that, in reviewing a default judgment, there are no presumptions of valid issuance, service, and return of citation; (2) rule that, to withstand a direct attack, strict compliance with the rules of service of citation must affirmatively appear on the record; (3) rule that the return of citation constitutes prima facie evidence of the facts asserted therein; (4) rule that a defendant who makes an appearance following service of process must be given notice of any trial setting; (5) rule that, if a defendant fails to answer after being served, the plaintiff has no legal duty to notify the defendant before taking a default judgment on the causes of action in the served petition; (6) general rule that, other than proof of unliquidated damages, no evidence is required to support a default judgment because a defendant’s failure to appear or answer is taken as an admission of the factual allegations in the plaintiff’s petition; (7) in a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer; (8) in a family law case, the party asserting separate property has the burden of rebutting the community property presumption by clear and convincing evidence; (9) in a family law case, there must be some reasonable basis in the record to support the trial court’s division of the community estate; (10) rule that the legal and factual sufficiency of evidence supporting an award of unliquidated damages after a default judgment may be challenged on appeal; (11) rule that, for an award of mental anguish damages to survive a legal sufficiency challenge, a plaintiff must present direct evidence of the nature, duration, and severity of her mental anguish which establishes a substantial disruption in her daily routine; (12) rule that, to prove the reasonableness and necessity of medical services, a plaintiff must either submit an affidavit or provide expert testimony; and (13) rule that, if a plaintiff fails to present legally sufficient evidence of unliquidated damages in a default judgment case, the proper appellate disposition is to remand for a new trial on damages.

Dallas Court of Appeals cases for the week of November 15, 2010

Saturday, November 20th, 2010

For the week of November 15, 2010, the Dallas Court of Appeals issued twenty-five opinions in civil cases.  Thirteen 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 follows:

Audia v. Hannold (05-08-01147-CV) – Recites well-established (1) applicability to constitutional complaints of the rule that to, preserve a complaint for appellate review, a party must timely-present the complaint to the trial court and seek a ruling on the complaint; (2) rule that pro se litigants are held to the same standards as licensed attorneys; and (3) rule that a party cannot agree to a trial in district court before six jurors, wait for an unfavorable verdict, and then complain about the number of jurors.

City of Richardson v. Justus (05-10-00185-CV) – Recites well-established (1) rule that, when deciding a plea to the jurisdiction, a trial court must consider evidence when necessary to resolve the jurisdictional issue raised; and (2) rule that, to sue a governmental entity for a tort, the pleadings must state a claim under the Texas Tort Claims Act.

David L. Smith & Assocs., L.L.P. v. Stealth Detection, Inc. (05-09-00304-CV) – Recites well-established (1) standard for reviewing challenge to legal sufficiency of the evidence by a party which had the burden of proof at trial; (2) definition of “joint enterprise liability”; and (3) rule that a plaintiff who prevails on a claim for breach of contract and recovers damages is entitled to recover reasonable attorneys’ fees.

Hamilton v. Farmers Tex. County Mut. Ins. Co. (05-09-01376-CV) – Recites well-established (1) rule that an appellate court is obligated to review sua sponte issues affecting its jurisdiction; (2) rule that appellate jurisdiction is never presumed; (3) rule that an appeal may be taken only from a final order unless a statute specifically authorized an interlocutory appeal; (4) rule that, if an intent to finally dispose of the case is clear from the trial court’s order, the order is final and appealable even if the record does not provide an adequate basis for rendition of judgment; (5) rule that a trial court can enter a summary judgment only against those claims attacked in a motion for summary judgment; and (6) rule that pro se litigants are held to the same standards as licensed attorneys.

Hemani v. Proton PRC, Ltd. (05-10-01066-CV) – Recites well-established (1) rule that the right to a restricted appeal is limited to parties who did not participate, either in person or through counsel, in the hearing that resulted in the judgment complained of and who did not file timely-file a post-judgment motion or notice of appeal; and (2) rule that, without a timely-filed notice of appeal, court of appeals lacks jurisdiction.

Logan v. Francois (05-10-00075-CV) – Recites well-established (1) standard for reviewing trial court’s decision to dismiss for want of prosecution; and (2) definition of “bench warrant”.

K & S Mart, Inc. v. Proton PRC, Ltd. (05-10-01065-CV) – Recites well-established (1) rule that the right to a restricted appeal is limited to parties who did not participate, either in person or through counsel, in the hearing that resulted in the judgment complained of and who did not file timely-file a post-judgment motion or notice of appeal; and (2) rule that, without a timely-filed notice of appeal, court of appeals lacks jurisdiction.

Miranda v. Wilder (05-09-00976-CV) – Recites well-established rule that a timely-filed post-judgment motion that seeks a substantive change in an existing judgment will extend the trial court’s plenary power and the appellate timetable.

Ohnesorge v. Winfree Academy Charter School (05-09-01453-CV) –  Recites well-established rules of construing an unambiguous statute.  Additionally, holds that open-enrollment charter schools are not subject to the Whistleblower Protection Act.

Threlkeld v. Urech (05-09-00631-CV) – Recites well-established (1) rule that a complaint that an affidavit is by an interested witness is an objection to form that is waived if not raised in the trial court; (2) rule that a trial court is required to provide an opportunity to amend a defective summary judgment affidavit only when the defect is one of form, not substance; and (3) holding that a conclusory statement in an affidavit is a defect of substance.

Veneble v. Sherbet (05-10-00303-CV) –  Recites well-established (1) standard for reviewing whether trial court had subject matter jurisdiction; (2) means by which a party may establish standing to bring a lawsuit; (3) general rule that, unless standing is conferred by statute or a plaintiff can show a particularized injury, taxpayers have no standing to contest governmental decision-making; (4) exception to that general rule which allows a taxpayer to sue to enjoin the illegal expenditure of public funds; and (5) rule that a defendant filing a plea to the jurisdiction has the burden to support the plea with evidence.

Ward v. ACS State & Local Solutions, Inc. (05-09-00557-CV) – Recites well-established (1)  standard for reviewing traditional summary judgment; (2) definition of “negligence per se”; (3) elements of negligence per se cause of action; (4) elements of proximate cause; and (5) test for determining whether something is a cause-in-fact.

Dallas Court of Appeals cases for the week of November 8, 2010

Tuesday, November 16th, 2010

For the week of November 8, 2010, the Dallas Court of Appeals issued eight 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 six cases are follows:

BDO Seidman, LLP v. J.A. Green Dev. Corp. (05-09-01520-CV) – Recites well-established (1) standard for reviewing whether an arbitration clause imposes a duty to arbitrate; and (2) definition of “unconscionable contract provision.”

Eros v. Boyington Capital Group, LLC (05-08-01703-CV) –  Recites well-established (1) rule that actual notice of receipt is not required when substitute service is used; and (2) rule that pro se litigants are held to the same standards as licensed attorneys.

Orthopedic Res., Inc. v. Swindell (05-09-01543-CV) – Recites well-established (1) standard for reviewing trial court’s decision on motion to dismiss a health care liability claim; and (2) definition of “health care provider.”

Phan v. Le (05-09-01277-CV) – Recites well-established (1) rule that trial court has inherent power under the common law to dismiss a case when the plaintiff fails to prosecute the case with due diligence; and (2) standard for reviewing dismissal for want of prosecution.

RAS Group, Inc. v. Rent-A-Center East, Inc. (05-08-00828-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; and (2) standard for reviewing no-evidence summary judgment.

Sidley Austin Brown Wood, LLP v. J.A. Green Dev. Corp. (05-10-0008-CV) – Recites well-established (1) standard for reviewing orders denying arbitration under the Texas Arbitration Act; (2) rule that doubts about the scope of an arbitration agreement must be resolved in favor of arbitration; (3) rule that the party seeking to avoid arbitration bears the burden of proving its defenses against enforcing an otherwise valid arbitration agreement; and (4) presumption that a party who signs a contract knows its contents.  Additionally, holds that interlocutory appeals of orders denying arbitration under the Federal Arbitration Act are subject to an abuse of discretion standard of review.

Dallas Court of Appeals cases for the week of November 1, 2010

Saturday, November 6th, 2010

For the week of November 1, 2010, the Dallas Court of Appeals issued nine opinions in civil cases.  Five 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 follows:

Christian Care Ctrs., Inc. v. Golenko (05-09-01521-CV) – Recites well-established (1) standard for reviewing trial court’s order on motion to dismiss health care liability claim; and (2) holding that not every doctor is automatically qualified to testify on every medical question.

Gang v. Sadeghi (05-09-00898-CV) – Recites well-established rule that a court cannot grant summary judgment on grounds not presented in the motion for summary judgment.

In re H.M. (05-09-0139-CV) – Recites well-established (1) rule that the termination of parental rights is implicates fundamental constitutional rights; and (2) rule that an appeal is frivolous if it lacks an arguable basis in either fact or law.

In re Smith (05-09-00913-CV) – Recites well-established (1) rule that appellate courts are prohibited from deciding moot controversies; (2) rule that complaints about an order appointing a temporary guardian ordinarily becomes moot if a permanent guardian is appointed; and (3) rule that an issue does not become moot if the challenged act is of such short duration that the appellant cannot obtain appellate review before the issue becomes moot and there is a reasonable expectation that the same action will occur again if the appellate court does not consider the issue.

Dallas Court of Appeals cases for the week of October 25, 2010

Monday, November 1st, 2010

For the week of October 25, 2010, the Dallas Court of Appeals issued eighteen opinions in civil cases.  Twelve 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 follows:

Anderton v. Cawley (05-10-00693-CV) – Recites well-established (1) standard for reviewing trial court’s determination of the amount of security necessary to supersede judgment and (2) definition of “net worth”.

In re Assurances Generales Banque Nationale (05-10-01078-CV) – Recites well-established (1) rule that, under the law of the case doctrine, courts of appeal are ordinarily bound by their prior decisions if there is a subsequent appeal in the case; (2) definition of “mandate”; and (3) rule that, when a trial court fails to follow a court of appeals judgment, mandamus is an appropriate remedy.

In re D.V. (05-10-00413-CV) – Recites well-established (1) rule that a trial court may terminate the parent-child relationship if the fact-finder finds both that a parent committed one or more enumerated statutory acts and that termination is in the best interest of the child; (2) standard for reviewing sufficiency of the evidence in a parental termination case; and (3) definition of “endanger”.

In re Sthran (05-10-01176-CV) – Recites well-established (1) standard for when mandamus relief is available; (2) holding that mandamus relief is largely controlled by equitable principles; and (3) standard for establishing the applicability of laches.

Noyd v. Noyd (05-10-00689-CV) – Recites well-established rule that, absent a timely notice of appeal, the court of appeals does not have jurisdiction over an appeal.

Pick-Up Poker, Inc. v. State (05-09-00562-CV) – Recites well-established rule that, if an appellant does not attack all independent grounds that support a complained-of ruling or judgment, the court of appeals must affirm the ruling or judgment.