Archive for March, 2011

Dallas Court of Appeals cases for the week of March 21, 2011

Wednesday, March 30th, 2011

For the week of March 21, 2011, the Dallas Court of Appeals issued fifteen 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 ten cases are as follows:

D Design Holdings, L.P. v. MMP Corp. (05-10-00032-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) rule that, when the provisions of a contract appeal to conflict, courts should attempt to harmonize the provisions and assume the parties intended for every provision to have some effect; (3) rule that, when a contract is ambiguous, it is improper to grant summary judgment based on the contract; (4) rule that whether a contract is ambiguous is a question of law; (5) standard for reviewing trial court’s ruling on motion for sanctions; (6) rule that a party seeking sanctions bears the burden of overcoming the presumption of good faith; and (7) rule that appellate sanctions are imposed only under egregious circumstances.

Fischer v. Eagle Equity, Inc. (05-09-01067-CV) – Recites well-established (1) rule that a party cannot recover under quantum meruit or unjust enrichment for services provided under a contract; and (2) rule that the failure to adequately brief an issue waives that issue on appeal.

Humphries v. Advanced Print Media (05-10-00031-CV) – Recites well-established (1) rule that, where a judgment may rest upon more than one ground, the appealing party must challenge each ground or the judgment will be affirmed on the ground to which no complaint is made; and (2) in a trial court to the court where no findings of fact or conclusions of law have been filed, the judgment implies all necessary findings in support of the judgment.

In re Oncor Elec. Delivery Co. LLC (05-11-00188-CV) –  Recites well-established rule that, if a petition for writ of mandamus complains of an oral order, the portion of the reporter’s record that contains the order must be included in the petition’s appendix.

Martinez v. Dallas Central Appraisal Dist. (05-09-00858-CV) – Recites well-established (1) standard for reviewing matters of statutory construction; (2) rule that, in construing a statute, a court must consider the statute as a whole rather than its isolated provisions; (3) rule that property need not be owned in fee simple to qualify as a residence homestead; (4) attorneys’ fees cannot be awarded in the absence of contractual or statutory authority; (5) rule that statutory and constitutional provisions purporting to grant exemptions from taxation are given a narrow and strict construction, and all doubts are resolved against the granting of an exemption; and (6) rule that, in evaluating whether a statute is unconstitutional, courts begin by presuming the statute’s constitutionality.

Mewhinney v. London Wineman, Inc. (05-09-01057-CV) – Recites well-established (1) standard for reviewing denial of motion for JNOV; (2) rule that a mere breach of contract, without more, does not constitute a violation of the deceptive trade practices act; and (3) definition of “out-of-pocket damages.”

Strobel v. Marlow (05-09-01047-CV) – Recites well-established (1) definition of “healthcare liability claim”; and (2) rule that a certificate of service is prima facie evidence that service took place, but this presumption vanishes if the opposing party offers proof of non-receipt.  Additionally, holds that a prosthetist is a health care provider.

Terraces at Cedar Hill, L.L.C. v. Gartex Masonry & Supply, Inc. (05-10-00226-CV) – Recites well-established (1) standard for reviewing findings of fact; (2) rule that a constitutional mechanic’s lien can exist even if the lienholder fails to comply with the legislative requirements for statutory liens; and (3) rule that an agent’s authority to act on behalf of principal depends on some communication by the principal either to the agent or to the third party.

Weekley Homes, L.P. v. Rao (05-10-00570-CV) – Recites well-established (1) rule that, if the appellate record does not affirmatively demonstrate the appellate court’s jurisdiction, the appeal must be dismissed; (2) standard for reviewing whether an arbitration agreement is enforceable; (3) rule that, by continuing to work for an employer after receiving notice of the employer’s arbitration policy, an at-will employee accepts the agreement to arbitrate as a matter of law; and (4) rule that the presumption favoring arbitration arises only after the party seeking to compel arbitration proves that a valid arbitration agreement exists.

W.O. Burgers 1 L.L.C. v. Watsonburger of Oklahoma, Inc. (05-09-00397-CV) –  Recites well-established (1) standard for reviewing trial court’s decision to admit or exclude evidence; (2) rule that a written instrument may not be varied by evidence of an oral agreement that contravenes its terms; (3) rule that parol evidence is admissible to show that the execution of a written agreement was procured by fraud, that an agreement was not to become effective except under certain conditions, or to ascertain the parties’ true intentions where the writing is ambiguous; (4) standard for reviewing a trial court’s exclusion of expert testimony; and (5) rule that the proponent of an expert must establish that the expert’s opinion will aid the trier of fact.

Dallas Court of Appeals cases for the week of March 14, 2011

Saturday, March 19th, 2011

For the week of March 14, 2011, 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:

Amer v. Rozicki (05-09-01244-CV) –  Recites well-established (1) elements of a bill of review action; and (2) rule that a request for findings of fact does not extend the time for perfecting an appeal of a judgment rendered as a matter of law.

ECF N. Ridge Assocs., L.P. v. Orix Capital Mkts., L.L.C. (05-09-00066-CV) –  Recites well-established (1) definition of “all-risk insurance”; and (2) definition of “certified terrorism insurance.”

Klingenschmitt v. Weinstein (05-10-01149-CV) – Recites well-established rule that a special appearance be filed before any other plea, pleading, or motion.

HSBC Bank, N.A. v. Khyber Holdings, L.L.C. (05-10-00220-CV) – Recites well-established (1) requirements of a restricted appeal; and (2) rule that a default judgment must be supported by the pleadings.

McAfee, Inc. v. Weiss (05-09-01102-CV) – Recites well-established standard for reviewing an order denying a motion to seal.

Primary Media, Ltd. v. City of Rockwall (05-09-01116-CV) – Recites well-established (1) rule that a recitation that an affiant has personal knowledge of the facts stated in his affidavit does not convert unsupported conclusions into admissible evidence; (2) rule that new and independent summary judgment grounds cannot be raised in a reply to a response to a motion for summary judgment; (3) holding that courts use the same rules when construing municipal ordinances as they use when construing statutes; and (4) rule that statutory construction is a matter of law.

Dallas Court of Appeals cases for the week of March 7, 2011

Wednesday, March 16th, 2011

For the week of March 7, 2011, the Dallas Court of Appeals issued eight 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 four cases are as follows:

Chambers v. Texas Dep’t of Pub. Safety (05-10-01573-CV) – Recites well-established standard for reviewing trial court’s order sustaining a contest to an affidavit of indigence.

Hoss v. Alardin (05-08-01192-CV) – Recites well-established (1) rule that a party breaches a contract by failing to perform when that party’s performance is due; (2) rule that, if a claimant is entitled to recover attorneys’ fees for some but not all of his claims, he bears the burden of segregating his fees between claims for which they are recoverable and claims for which they are not, but that segregation is not necessary where the claims are inextricably intertwined; (3) standard for reviewing traditional summary judgment; (4) rule that the proper measure of lost- profits damages is lost net profits, not lost gross profits; (5) definition of “net profit”; and (6) definition of “gross profit.”

In re Estate of Jones (05-10-00566-CV) – Recites well-established  rule that, absent evidence to the contrary, recitations in a trial court judgment are presumed to be correct.

Millwee-Jackson Joint Venture v. Dallas Area Rapid Transit (05-08-01164-CV) – Recites well-established (1) standard for reviewing no-evidence summary judgment; (2) statute of limitations for inverse condemnation claim; (3) definition of “regulatory taking”; and (4) elements of a takings claim.

Dallas Court of Appeals cases for the week of February 28, 2011

Wednesday, March 16th, 2011

For the week of February 28, 2011, the Dallas Court of Appeals issued twelve 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 ten cases are as follows:

Baleares Link Express, S.L. v. GE Engine Servs. (05-09-00114-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) no-evidence summary judgment standard; (3) standard for reviewing trial court’s denial of motion to continue a summary judgment hearing; (4) rule about when a claim accrues for the purposes of limitations; (5) rule governing applicability of the discovery rule; (6) statute of limitations for breach of express of implied warranty claim; and (7) elements of fraud claim.

In re A.F. Reitz Trust (05-11-00153-CV) –  Recites well-established (1) rule that appellate jurisdiction is never presumed; and (2) rule that, unless the record affirmatively shows the appellate court’s jurisdiction, the court must dismiss the appeal.

In re E.R. (05-09-01505-CV) – Recites well-established (1) standard for reviewing trial court’s refusal to grant motion for new trial; and (2) holding that an involuntary termination of parental rights involves fundamental constitutional rights.

In re I.J.R. (05-09-00565-CV) – Recites well-established (1) presumption that a trial court has heard a case only after the parties received proper notice; (2) rule that, once a defendant has made an appearance in a cause, he is entitled to notice of the trial setting; (3) holding that lack of notice of a trial setting does not necessarily void the trial court’s judgment because due process merely requires that the method of service be reasonably calculated to inform the parties of the proceeding; (4) rule that the absence of proof in the record that notice was provided does not establish error on the fact of the record; (5) rule that, as a prerequisite to presenting 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; and (6) standard for reviewing a trial court’s ruling on a request to modify child support.

In re I.L.S. (05-09-01375-CV) – Recites well-established rule that a no-answer default judgment may not be rendered against a defendant who has filed an answer.

Gorman v. Meng (05-09-01189-CV) – Recites well-established (1) standard for reviewing applicability of a statute; (2) definition of “an improvement”; and (3) rule governing whether personalty has been affixed to realty.

Lighthouse Holdings, Inc. v. Simms (05-09-01216-CV) – Recites well-established test to determine whether a worker is an employee rather than an independent contractor.

James v. Parish (05-10-00150-CV) – Recites well-established (1) standard for reviewing trial court’s determination that someone is a vexatious litigant; and (2) elements of intentional infliction of emotional distress claim.

Prestige Ford Garland Ltd P’ship (05-09-00211-CV) – Recites well-established (1) standard for reviewing challenges to trial court’s ruling on motion for JNOV; (2) statute of limitations for promissory estoppel claim; and (3) rule that, unless otherwise explicitly agreed, title passes to a buyer when the seller completes physical delivery of the goods, even if a document of title is to be delivered at a different time and place.

Retta v. Mokonen (05-10-00718-CV) – Recites well-established (1) elements which must be pleaded and proven to obtain a temporary injunction; (2) standard for reviewing a trial court’s ruling on a temporary injunction; and (3) rule that a church has the right to control its membership without interference from the courts.

Texas Supreme Court oral argument

Thursday, March 10th, 2011

Dallas Appellate Lawyer Chad Ruback argues before the Texas Supreme Court

Here is a photo taken of me at a March 3, 2011 argument before the Texas Supreme Court.