Archive for May, 2011

Dallas Court of Appeals cases for the week of May 23, 2011

Saturday, May 28th, 2011

For the week of May 23, 2011, the Dallas Court of Appeals issued seven 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 five cases are as follows:

Darocy v. Abildtrup (05-10-00369-CV) – Recites well-established (1) standard for reviewing legal sufficiency of evidence; (2) rule that the fact finder is the sole judge of the credibility of witnesses and the weight to be given to their testimony; and (3) elements of aider-and-abettor liability claim.

In re Lavizadeh (05-11-00511-CV) – Recites well-established standard for obtaining mandamus relief.

Flores v. Appler (05-09-01523-CV) – Recites well-established (1) rule that it is proper to include traditional and no-evidence grounds in a single motion for summary judgment; (2) rule that, when a trial court does not state the basis for granting summary judgment, the appellant must negate all grounds; and (3) rule that a no-evidence motion for summary judgment must state the element or elements as to which there is no evidence.

Goodenberger v. Ellis (05-10-00405-CV) – Recites well-established (1) rule that, to present an issue to an appellate court, a party’s brief must contain citation to legal authorities and to the appellate record; (2) standard for reviewing no-evidence summary judgment; (3) standard for reviewing traditional summary judgment; (4) definition of “easement”; (5) elements of easement by estoppel claim; (6) rule that an easement by estoppel may not be imposed against a subsequent purchaser for value who has no notice, actual or constructive, or the easement claimed; and (7) elements of implied easement claim.

Leighton v. Rebeles (05-10-00990-CV) – Recites well-established (1) rule that a court of appeals may review the portion of an order that is appealable and refuse to consider the portion which is non-appealable; (2) holding that the purpose of a temporary injunction is to preserve the status quo of the subject matter of the suit pending a final decision on the rights of the parties; (3) standard for reviewing a trial court’s grant or denial of a temporary injunction; and (4) rule that all orders that grant a temporary injunction are required to include an order setting the cause for trial on the merits.

Dallas Court of Appeals cases for the week of May 16, 2011

Wednesday, May 25th, 2011

For the week of May 16, 2011, 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:

Burgess v. 84 Fin. L.P. (05-11-00272-CV) – Recites well-established (1) holding that jurisdiction over appeals is established exclusively by constitutional and statutory enactments; and (2) rule that, absent a timely-filed notice of appeal from a final judgment or authorized interlocutory order, appellate court does not have jurisdiction over appeal.

Ex parte City of Irving (05-11-00036-CV) – Recites well-established standards for reviewing matters of statutory construction.

GPA Holding v. Baylor Health Care Sys. (05-09-00586-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) rule that the interpretation of an unambiguous contract is a question of law; (3) definition of “liquidated damages”; (4) rule that whether a contract term is a liquidated damages clause is a question of law; and (5) rule that a party asserting that a liquidated damages clause is an unenforceable penalty bears the burden of proof.

Jon Scott Salon, Inc. v. Garcia (05-10-00931-CV) – Recites well-established (1) holding that the purpose of a temporary injunction is to preserve the status quo until the case can be tried on the merits; and (2) standard for reviewing a temporary injunction order.

Lieberman v. Romero (05-08-01636-CV) – Recites well-established rule that a suit may not be brought against a governmental employee in his individual capacity for actions taken within the scope of his employment.

Odems v. Williams (05-11-00384-CV) – Recites well-established rule that, when a party files a timely post-judgment motion, that party is not permitted to bring a restricted appeal.

Yarbrough v. American Contractors Ins. Group (05-10-00562-CV) – Recites well-established standard for reviewing ruling on whether court has subject-matter jurisdiction.

Dallas Court of Appeals cases for the week of May 9, 2011

Saturday, May 14th, 2011

For the week of May 9, 2011, the Dallas Court of Appeals issued twelve 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 six cases are as follows:

Beltran v. Brookshire Grocery Co. (05-09-01548-CV) – Recites well-established (1) standard for reviewing whether jury findings irreconcilably conflict; (2) rule that appellate court may not strike down jury answers on the basis of conflict if there is any reasonable basis on which they can be reconciled; (3) rule that, absent a timely objection to a fatal conflict in jury’s answers, any complaint regarding such conflict is waived; (4) rule that, if a party improperly harmonizes or reconciles jury’s findings, a party can raise that issue on appeal without objecting to the jury’s verdict before the jury is discharged; (5) rule that a trial court may disregard a jury finding only if it is unsupported by evidence or if the issue is immaterial; and (6) rule that a properly submitted jury question can be rendered immaterial by other findings.

Cypress Tex. Lloyd’s Prop. & Cas. Ins. Co. (05-09-00753-CV) – Recites well-established standard for reviewing challenges to trial court’s ruling on motions for JNOV.

Lawler v. DiGiuseppe (05-09-01468-CV) – Recites well-established (1) rule that, when a party tries a case on alternative theories of recovery and a jury returns favorable findings on two or more theories, the party has a right to judgment on the theory entitling him to the greatest relief; and (2) rule that trial court’s judgment must conform t the pleadings, the nature of the case proved, and the verdict.

Gamma Group, Inc. v. Home State County Mut. Ins. Co. (05-10-00070-CV) – Recites well-established standard for reviewing traditional summary judgment.

Hidalgo v. Hidalgo (05-06-00966-CV) –  Recites well-established (1) standard for reviewing trial court’s ruling in a suit to enforce a divorce decree; (2) standard for reviewing trial court’s construction of an unambiguous contract; (3) rule that an unambiguous contract will be enforced as written regardless of whether one or more of the parties contracted foolishly; (4) rule that courts are not authorized to rewrite agreements by inserting additional terms, definitions, or provisions that the parties could have included themselves but did not; and (5) rule that courts cannot ignore express terms of a contract.

Neary v. Mikob Props., Inc. (05-09-01175-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; and (2) standard for reviewing no-evidence summary judgment.

Dallas Court of Appeals cases for the week of May 2, 2011

Monday, May 9th, 2011

For the week of May 2, 2011, the Dallas Court of Appeals issued thirteen 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 eight cases are as follows:

Badhiwala v. Favors (05-10-00211-CV) – Recites well-established standard for reviewing trial court’s order on motion to dismiss health care liability claim.

Bank of Am. v. Babu (05-09-00726-CV) – Recites well-established (1) standard for reviewing trial court’s conclusions of law; (2) standard for reviewing trial court’s decisions on equitable relief; (3) rule that a party has constructive notice of instruments properly recorded in the proper county; (4) definition of “equitable subrogation”; and (5) rule that existence of duty is a question of law for the court to decide from facts surrounding the occurrence in question.

Collins v. Collins (05-09-00726-CV) – Recites well-established (1) rule that assets belonging to a third party are not part of the marital estate; and (2) rule that, when reversible error is committed in the division of property upon divorce, a court of appeals is not permitted to render a different division or to remand only certain portions of the martial property for a new division, but rather must remand the entire community estate for a new division.

Dallas Raceway, Inc. v. Pavecon, Ltd. (05-10-00712-CV) – Recites well-established (1)  standard for reviewing legal sufficiency of evidence; (2) standard for reviewing factual sufficiency of evidence; and (3) elements of substantial performance claim.

Dorfman v. Max Int’l, LLC (05-10-00776-CV) – Recites well-established (1) standard for reviewing whether an arbitration agreement is enforceable; and (2) rule that arbitration agreements must be supported by consideration.

Franklin Templeton Bank & Trust v. Tigert (05-09-01472-CV) – Recites well-established (1) standard for reviewing trial court’s legal conclusions; (2) rule that the construction of an unambiguous contract is a question of law; (3) rule that the question of whether a contract is ambiguous is a question of law; and (4) rule that, when reviewing unambiguous contracts, parol evidence is not considered.

Tegue v. City of Dallas (05-10-01163-CV) – Recites well-established (1) standard for reviewing whether a trial court had subject matter jurisdiction; (2) rule that, when performing governmental functions, political subdivisions derive governmental immunity from the state’s sovereign immunity; (3) rule that governmental immunity from suit deprives the trial court of subject matter jurisdiction over a plaintiff’s claims against a governmental entity unless the state consents to suit; and (4) rule that all of the functions of a county are governmental functions.

Whisenant v. Arnett (05-10-00625-CV) – Recites well-established rule that a trial court has no discretion in determining what the law is or applying the law to the facts.

Dallas Court of Appeals cases for the week of April 25, 2011

Sunday, May 1st, 2011

For the week of April 25, 2011, the Dallas Court of Appeals issued eleven 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 five cases are as follows:

Ethicon Endo-Surgery v. Gillies (05-09-00150-CV) –  Recites well-established (1) rule a party requesting a non-suit has an absolute right to the non-suit; (2) rule that a party is restricted on appeal to the theory on which the case was tried; (3) elements of negligent marketing claim; (4) rule that expert testimony is required in strict liability marketing defect claim; (5) rule that expert testimony is necessary to establish standard of care when alleged negligence is not within the experience of laymen; and (6) when allegedly negligent conduct involves use of specialized equipment and techniques, expert testimony must establish both the standard of care and a violation of that standard.  Additionally, holds that expert testimony is required in negligent marketing caes.

Gonzalez v. Wells Fargo Bank, NA (05-09-01322-CV) – Recites well-established rule that, without a reporter’s record, appellate court must presume that the evidence supports the trial court’s judgment.

McGehee v. Bowman (05-10-00598-CV) – Recites well-established rule that, if an arbitration agreement is silent or ambiguous about who should decide whether a dispute is subject to arbitration, a court should not presume that the parties intended the issue of arbitrability to be decided by an arbitrator.

Molina v. Jolly Chef Express (05-07-01092-CV) – Recites well-established (1) no-evidence summary judgment standard; (2) rule that liability will attach if the lack of adequate warnings or instructions renders an otherwise adequate product unreasonably dangerous; and (3) rule that there is no duty to warn when risks associated with a product are within the ordinary knowledge common to the community.

Ugwonali v. Agbor (05-10-00527-CV) – Recites well-established rule that an individual who is a party to civil litigation has the right to represent himself at trial and on appeal.