Archive for April, 2011

Dallas Court of Appeals cases for the week of April 18, 2011

Tuesday, April 26th, 2011

For the week of April 18, 2011, the Dallas Court of Appeals issued twenty-three opinions in civil cases. Ten 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:

Effel v. McGarry (05-09-01459-CV) – Recites well-established (1) elements of a binding contract; (2) holding that interest rate is a material term of a contract; and (3) elements of common-law cause of action for account stated.

Farokhnia v. Farokhnia (05-09-01541-CV) – Recites well-established (1) standard for reviewing ruling on motion for new trial; (2) standard for reviewing ruling on motion to reopen evidence; and (3) rule that it is an appellant’s burden to furnish appellate court with a record supporting their allegations of error.

Hunter v. Pricekubecka, PLLC (05-09-01397-CV) – Recites well-established (1) standard for reviewing grant or denial of directed verdict; (2) standard for reviewing legal sufficiency of evidence; (3) elements of breach of contract claim; (4) standard for reviewing motion to modify a judgment; (5) standard for reviewing no-evidence summary judgment; (6) rule that, when trial court does not specify the grounds upon which summary judgment was granted, the appellate court will affirm the summary judgment if any of the grounds advanced in the motion are meritorious; (7) elements of negligent misrepresentation claim; (8) elements of fraud claim; (9) standard for reviewing grant or denial of motion for judgment notwithstanding the verdict; (10) elements of money had and received claim; (11) definition of “equity”; (12) definition of “conscience”; (13) rule that appellate court does not consider arguments raised for the first time in an appellate reply brief; and (14) rule that, when an issue is established as a matter of law, the trial court should not submit it to the jury.

In re I.T.G.D. (05-10-00723-CV) – Recites well-established (1) rule that appellate jurisdiction is never presumed; and (2) rule that docket sheet entries reflecting trial court rulings do not invoke appellate jurisdiction.

In re W.C.B. (05-09-01393-CV) – Recites well-established standard for reviewing trial court’s decision concerning modification of conservatorship of a child.

L’Art de la Mode, Inc. v. Wells Fargo Trade Capital Servs., Inc. (05-10-00742-CV) – Recites well-established elements which must be satisfied for the due process clause of the United States Constitution to permit a state to exert personal jurisdiction over a nonresident defendant.

Mendez v. Bill Joplin’s Compressor Servs., Inc. (05-09-01418-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) standard for reviewing no-evidence summary judgment; and (3) holding that the workers’ compensation exclusive remedy provision is an affirmative defense.

Millwee v. Captar Commercial Real Estate Servs., Ltd. (05-10-00509-CV) – Recites well-established (1) standard for reviewing legal sufficiency of evidence; (2) standard for reviewing legal sufficiency of evidence; and (3)  rule that pro se litigants are held to the same standards as licensed attorneys.

Murray v. Texas Workforce Comm’n (05-03-00911-CV) – Recites well-established standard for reviewing a Texas Workforce Commission decision regarding payment benefits carries a presumption of validity.

Samuels v. Perry (05-10-01577-CV) – Recites well-established rule that appellate jurisdiction is never presumed.

Transcontinental Realty Investors, Inc. v. McGuire, Craddock, Stother & Hale, P.C. (05-09-00884-CV) – Recites well-established definition of “presentment.”

Williams v. Morales (05-10-00558-CV) – Recites well-established (1) elements of restricted appeal; (2) rule that a trial court has power to dismiss a case when the plaintiff fails to prosecute the case with due diligence; (3) rule that a party must be provided with notice and an opportunity to be heard before a court may dismiss a case for want of prosecution; and (4) standard for reviewing dismissal for want of prosecution.

Wright Group Architects-Planners, P.L.L.C. v. Pierce (05-09-01233-CV) – Recites well-established (1) standard for reviewing factual sufficiency of evidence; (2) standard for reviewing trial court’s conclusions of law; (3) rule that appellate court may not pass upon the credibility of witnesses; (4) rule that the construction of an unambiguous contract is a question of law; (5) rule that agency is not presumed; (6) rule that, when an agent seeks to avoid personal liability on a contract he signs, he must disclose that he is acting in a representative capacity and the identity of his principal; (7) rule that, if a contract clearly shows on its face that it is the obligation of the person who signed it, parol evidence is inadmissible to show that the person intended only to bind his principal; and (8) rule that, when an individual signs a contract without indicating that he is signing in a representative capacity, he is liable on the contract.

Dallas Court of Appeals cases for the week of April 11, 2011

Tuesday, April 26th, 2011

For the week of April 11, 2011, the Dallas Court of Appeals issued fifteen opinions in civil cases. Six 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:

Amir-Sharif v. Quick Trip Corp. (05-09-01497-CV) – Recites well-established standard for reviewing a trial court’s finding that a litigant is vexatious.

Benser v. Waterfall Crossing Condo. Ass’n, Inc. (05-10-00255-CV) – Recites well-established rule that claims may not be asserted for the first time on appeal.

Dontos v. Bruno (05-10-00178-CV) – Recites well-established (1) rule that the existence of personal jurisdiction is a question of law; (2) rule that, when a nonresident defendant challenges jurisdiction through a special appearance, the defendant must negate all grounds for personal jurisdiction alleged by the plaintiff in order to prevail; (3) what must be shown to establish “purposeful availment”; (4) what must be shown to establish “general jurisdiction”; and (5) what must be shown to establish “specific jurisdiction.”

In re M.A.M. (05-09-00396-CV) – Recites well-established (1) standard for reviewing trial court’s decision concerning modification of conservatorship of a child; (2) standard for reviewing legal sufficiency of evidence; and (3) rule that unchallenged findings of fact are binding on an appellate court unless the contrary is established as a matter of law or there is no evidence to support the finding.

In re Maasoumi (05-10-00448-CV) – Recites well-established (1) rule that, to obtain mandamus relief, a relator must show both that the trial court abused its discretion and that the relator has no adequate appellate remedy; and (2) rule that a trial court has no discretion in determining what the law is or applying the law to the facts.

In re R.M.H. (05-10-00073-CV) – Recites well-established rule that, if a party fails to brief a complaint adequately, he waives that complaint on appeal.

Park N. Serv. Ctr., L.P. v. Applied Circuit Tech., Inc. (05-10-00042-CV) – Recites well-established (1) standard for reviewing trial court’s decision to submit a jury question; (2) rule that a trial court is required to submit to the jury a properly requested question that is raised by the pleadings and evidence and is necessary to enable the jury to render a verdict; and (3) rule that error in a jury charge is harmful only if it probably caused the rendition of an improper judgment.

Preferred Commc’n Sys., Inc. v. Berberena (05-10-01489-CV) – Recites well-established rule that a corporation may only appear in legal proceedings through an attorney.

R.H. v. Smith (05-09-00564-CV) – Recites well-established (1) holding that a case is “tried” when the trial court’s judgment is based on an evidentiary hearing containing conflicting testimony; (2) standard for reviewing trial court’s ruling on motion to show authority; (3) rule that a trial court has the responsibility to replace a minor’s next friend if the court believes that the next friend has an interest adverse to the minor; and (4) standard for reviewing trial court’s judgment on mediated settlement.

Dallas Court of Appeals cases for the week of April 4, 2011

Saturday, April 9th, 2011

For the week of April 4, 2011, the Dallas Court of Appeals issued seven 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 three cases are as follows:

Bailey v. Gillard (05-10-00116-CV) – Recites well-established no-evidence summary judgment standard.

Best Auto v. Autohaus, LLC (05-09-01452-CV) – Recites well-established elements which must be established to prove adverse possession.

Double Diamond, Inc. v. Saturn (05-09-01073-CV) – Recites well-established (1) standard for reviewing legal sufficiency of the evidence; and (2) standard for reviewing factual sufficiency of the evidence.

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

Monday, April 4th, 2011

For the week of March 28, 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:

Biggs v. Baylor Univ. Med. Ctr. (05-09-00430-CV) – Recites well-established rule that, in medical negligence cases, a trial court’s discretion to deny extensions of time to file expert reports is not limitless.

Billelo v. CLC McKinney Partners, L.P. (05-09-01525-CV) – Recites well-established (1) standard for reviewing no-evidence summary judgment; and (2) rule that an owner of livestock has no common law duty to confine his animals within fences, but that there is a statutory duty.

Carr v. Main Carr Dev., LLC (05-10-01346-CV) – Recites well-established (1) standard for reviewing interlocutory order denying motion to compel arbitration; (2) standard for reviewing whether an arbitration agreement is enforceable; (3) rule that a third-party beneficiary to a contract can compel or be compelled to arbitrate under an arbitration provision in a contract; (3) rule that a third party may only enforce a contract as a third-party beneficiary when the contracting parties themselves intended to secure some benefit for the third party and entered into the contract directly for the third party’s benefit; (4) rule that a court cannot create a third-party beneficiary contract by implication; (5) rule that the presumption in favor arbitration applies to the scope of an arbitration agreement, but does not apply to the existence of such an agreement or to the identity of parties who may be bound to such an agreement; and (6) definition of “direct benefits estoppel.

Furmanite Worldwide, Inc. v. Nextcorp, Ltd. (05-09-00580-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) standard for reviewing no-evidence summary judgment; (3) standard for reviewing an unambiguous contract; (4) rule that, when a contract contains an ambiguity, the granting of a motion for summary judgment is improper; (5) definition of “waiver”; (6) elements of waiver; (7) elements of equitable estoppel; (8) rule that summary judgment may not be granted on grounds not presented in the motion; (9) definition of “recital”; and (10) rule that recitals in a contract will not control the operative phrases of the contract unless those phrases are ambiguous.

Hernandez v. Sovereign Cherokee Nation Tejas (05-09-00535-CV) – Recites well-established (1) standard for reviewing trial court’s imposition of sanctions; (2) standard for legal sufficiency review; (3) standard for factual sufficiency review; (4) standard for reviewing exemplary damage award; and (5) factors considered in determining whether an exemplary damage award is excessive.

In re D.C. (05-10-01539-CV) – Recites well-established (1) rule that appellate jurisdiction is never presumed; and (2) rule that, absent a timely-filed notice of appeal, an appellate court does not have jurisdiction over an appeal.

In re Johnson (05-11-00290-CV) – Recites well-established (1) rule that a contempt order is void if it is beyond the power of the court to render it or if it deprives liberty without due process of law; and (2) rule that, for a person to be held in contempt for violating a court decree, the decree must spell out the details of compliance in clear, specific, and unambiguous terms so that the person will know exactly what duties and obligations are imposed upon him.

Mazon Assocs., Inc. v. Heritage Wholesale Nursery, Inc. (05-09-01218-CV) – Recites well-established (1) rule as to what must be done to preserve a legal sufficiency and factual sufficiency challenges for appeal after a jury trial; (2) standard for reviewing trial court’s exclusion of expert testimony; (3) rule that appellate court must uphold trial court’s evidentiary ruling if any legitimate basis exists for the ruling; (4) elements which must be satisfied for expert testimony to be admitted; (5) rule that legal definitions are questions of law solely within the province of the trial court; and (6) rule that an appellate court may not reverse a judgment on the basis of evidentiary error unless the appellate court concludes that the error probably caused rendition of improper judgment.

Ritchie v. Rupe (05-08-00615-CV) – Recites well-established (1) rule that jury questions should not be submitted where the facts in question are conclusively established; (2) rule that, when party of a case is decided by the jury and part by the court, a party may request and the court may issue findings of fact and conclusions of law on the court-decided issues; (3) rule that construction of statutes is a question of law; (4) standard for reviewing questions of law; (5) rule that a trust is not a separate legal entity that may sue or be sued; (6) rule that lawsuits by or against trusts must be brought by or against the legal representative, the trustee of the trust; and (7) definition of “a trust.”  Additionally, holds that Texas law authorizes a trial court to order a buyout of an oppressed minority shareholder as an equitable remedy for shareholder oppression.

Smale v. Torchmark Corp. (05-09-01190-CV) – Recites well-established rule that, when a trial court does not specify the basis for its ruling, it is appellant’s burden on appeal to show each independent ground or basis asserted in support of the judgment is insufficient to support the judgment.