Archive for January, 2011

Dallas Court of Appeals cases for the week of January 24, 2011

Monday, January 31st, 2011

For the week of January 24, 2011, the Dallas Court of Appeals issued twenty-one opinions in civil cases.  Eleven 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:

Continental Foods, Inc. v. State (05-09-01249-CV) – Recites well-established (1) standard of reviewing trial court’s ruling on plea to the jurisdiction; (2) elements of an inverse condemnation claim; and (3) rule that a lessee is entitled to share in a condemnation award when part of its leasehold interest is lost by condemnation.

Gonzalez v. Gonzalez (05-09-01465-CV) – Recites well-established (1) rules governing restricted appeals; (2) if the respondent in a divorce case fails to answer or appear, the petitioner must nevertheless present evidence to support the material allegations in the petition; and (3) standard for reviewing legal sufficiency of evidence.

Hudgins v. Logue (05-09-01502-CV) – Recites well-established standard for reviewing judgment notwithstanding the verdict.

Luckett v. Brinker Rest. Corp. (05-09-00545-CV) – Recites well-established rule that pro se litigants are held to the same standards as licensed attorneys.

Merritt v. Davis (05-09-01231-CV) – Recites well-established elements of a fraudulent lien claim.

PMS Hospitality, Inc. v. OM Realty Fin. Co. (05-09-00923-CV) – Recites well-established (1) rule that the recitations proceeding the decretal portion of a judgment form no part of the judgment itself; (2) rule that an appealing party may not complain of errors that do not injuriously affect it or that merely affect the rights of others; (3) rule that an affirmative defense must be pleaded or it is waived; and (4) rule that it is an appellant’s burden to establish reversible error.

Putnam v. City of Irving (05-10-01269-CV) – Recites well-established (1) rule that a trial court does not abuse its discretion when it bases its decision on conflicting evidence; (2) rule that the interpretation of municipal laws and ordinances is a question of law and, consequently, the court of appeals is not bound by the municipality’s interpretation; and (3) rule that a city violates its contract with voters if the city uses proceeds from taxes approved by the voters in a way that the voters did not approve.

Reyna v. Mitchell (05-09-01372-CV) – Recites well-established (1) standard for reviewing a trial court’s dismissal for want of prosecution; and (2) rule that, when a trial court determines that an plaintiff inmate should not be allowed to appear personally at his civil trial, the inmate should be allowed to proceed by affidavit, deposition, telephone, or other effective means.

S & I Mgmt. v. Choi (05-09-00948-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) definition of “respondeat superior”; (3) standard for reviewing no-evidence summary judgment; (4) for a ruling on an objection to summary judgment evidence for be effective, the ruling must be reduced to writing, signed by the trial court, and entered of record; (5) rule that defects of substance in an affidavit may be raised for the first time on appeal; and (6) elements of proximate cause.

Webb v. Maldonado (05-09-00787-CV) – Recites well-established (1) standard for reviewing no-evidence 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 circumstantial evidence may be used to establish any material fact, but it must transcend mere suspicion; (4) rule that suspicion and conjecture are not evidence; (5) rule that a fact finder may draw negative inferences from a party’s assertion of the privilege against self-incrimination; and (6) rule that, in order to preserve a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion, stating the specific grounds for the ruling requested.

Dallas Court of Appeals cases for the week of January 17, 2011

Thursday, January 27th, 2011

For the week of January 17, 2011, the Dallas Court of Appeals issued three opinions in civil cases.  They are as follows:

Balestri v. Remax Realty (05-10-00611-CV) – Recites well-established (1) rule that a dismissal disposing of all claims and parties is final and appealable; and (2) rule that an order is not appealable if it strikes a party’s pleading, allows the party to amend, and provides for dismissal if no appeal is filed.

ECF N. Ridge Assocs., L.P. v. Orix Capital Mkts., L.L.C. (05-09-00066-CV) – Recites well-established (1) standard for reviewing legal sufficiency of evidence; (2) standard for reviewing legal sufficiency of evidence; (3) standard for reviewing whether trial court has subject matter jurisdiction; and (4) rule that, in interpreting a contract, court should give effect to all provisions so that none would be rendered meaningless.

Giron v. Baylor Univ. Med. Ctr. (05-09-00825-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) factors considered when determining the reasonableness of attorneys’ fees; (3) rule that declaratory judgment suit is appropriate only if a justiciable controversy exists as to the rights of the parties and the controversy will be resolved by the declaration sought; (4) definition of “justiciable controversy”; and (5) rule that a personal representative, administrator, or heir may sue on behalf of an estate.

Dallas Court of Appeals cases for the week of January 10, 2011

Thursday, January 27th, 2011

For the week of January 10, 2011, 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:

Alim v. KBR (05-09-00395-CV) – Recites well-established holding that a neutral arbitrator exhibits evident partiality if he does not disclose facts that might, to an objective observer, create a reasonable impression of the arbitrator’s partiality.

Brown v. Ogbolu (05-09-00371-CV) – Recites well-established (1) elements which must be established in a restricted appeal; (2) rule that evidence which was not before the trial court prior to final judgment may not be considered in a restricted appeal; (3) holding that civil procedure rule does not require the date or manner or service to be included in a certificate of service; (4) elements of breach of contract claim; (5) definition of “benefit-of-the-bargain measure” of damages; and (6) rule that it is impermissible for a default judgment to award damages exceeded the damages pleaded.

Conquest v. Spencer (05-09-00942-CV) – Recites well-established rule that a party may extend post-judgment time line if, among other things, the party proves that it received notice of the judgment more than twenty but less than ninety-one days after it was signed.

Dallas County v. Cedar Springs Invs., L.L.C. (05-10-00443-CV) – Recites well-established rule that taxpayers in Texas have standing to seek to enjoin the illegal expenditure of public funds and need not demonstrate a particularized injury.

Webb v. Stockford (05-08-01330-CV) – Recites well-established (1) elements of a legal malpractice claim; (2) standard for reviewing trial court’s judgment notwithstanding the verdict; (3) definition of “misrepresentation”; and (4) holding that silence may be equivalent to a false representation only when the particular circumstances impose a duty on the party to speak and he deliberately remains silent.

Dallas Court of Appeals cases for the week of January 3, 2011

Monday, January 10th, 2011

For the week of January 3, 2011, 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 follows:

Broderick v. Kaye Bassman Int’l Corp. (05-09-00692-CV) – Recites well-established (1)  standard for reviewing traditional summary judgment; (2) elements which must be established to succeed in bill of review claim; (3) standard for reviewing conclusions of law; (4) standard for reviewing findings of fact; (5) rules governing whether a settlement agreement is enforceable; and (6) definition of “high-low agreement.”

Housing Auth. v. Killingsworth (05-10-00172-CV) – Recites well-established (1) rule that governmental immunity from suit defeats trial court’s subject matter jurisdiction; (2) standard for reviewing challenge to trial court’s subject matter jurisdiction; and (3) standard for reviewing statutory construction.  Additionally, defines “properly executed.”

Pierre v. Swearingen (05-09-01085-CV) – Recites well-established standard for reviewing findings of fact.

Saleh v. Hollinger (05-10-00339-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 subject matter jurisdiction cannot be conferred or taken away by consent or waiver; and (4) standard for reviewing trial court’s order on a motion to dismiss a health care liability claim.

Zee TV USA, Inc. v. Regency Ctrs., L.P. (05-010-01297-CV) – Recites well-established definition of “reasonable explanation.”