Archive for June, 2011

Dallas Court of Appeals cases for the week of June 20, 2011

Saturday, June 25th, 2011

For the week of June 20, 2011, the Dallas Court of Appeals issued seventeen opinions in civil cases.  Eight 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:

Crone v. Bank of America, N.A. (05-10-00077-CV) – Recites well-established rule that appellate complaints dependent on the state of the evidence cannot be reviewed without a complete appellate record.

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 whether a contract is ambiguous is a question of law; and (4) rule that parol evidence is not considered when reviewing unambiguous contracts.

Hanley-Wood, LLC v. Poss (05-10-00595-CV) – Recites well-established (1) standard for reviewing trial court’s decision to confirm arbitration award; and (2) rule that an arbitrator exceeds his powers when he decides matters not properly before him.

In re Estate of Brown (05-11-00120-CV) – Recites well-established (1) rule that appellate jurisdiction is never presumed; and (2) rule that, unless the record affirmatively shows the propriety of appellate jurisdiction, an appellate court must dismiss.

In re Pegasus Funds TFN Trading Partners, LP (05-11-00580CV) – Recites well-established rule that a stay is automatically triggered by the filing a bankruptcy petition, and this stay deprives state courts of jurisdiction over proceedings against the debtor.

Lawrence v. Bottling Group, L.L.C. (05-10-00112-CV) – Recites well-established standard for reviewing questions of statutory construction.

Martinez v. ACCC Ins. Co. (05-09-01145-CV) –  Recites well-established (1) standard for reviewing traditional summary judgment; (2) rule that, when more than one ground is asserted in a motion for summary judgment and the trial court does not specify the grounds upon which it rendered summary judgment, an appellant must challenge each ground asserted; and (3) rule that an insured’s failure to cooperate with its insurer will not discharge the insurer’s obligations under the policy unless the insurer is actually prejudiced or deprived of a valid defense by the actinos of the insured.

Owusu v. Citibank (South Dakota), N.A. (05-10-00175-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2)  elements of common law “account stated” cause of action; and (3) rule that pro se litigants are held to the same standards as licensed attorneys.

Pagare v. Pagare (05-09-01342-CV) – Recites well-established standard for reviewing trial court’s ruling in dividing parties’ property in a divorce proceeding.

Dallas Court of Appeals cases for the week of June 13, 2011

Tuesday, June 21st, 2011

For the week of June 13, 2011, the Dallas Court of Appeals issued twelve opinions in civil cases.  Eight 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:

City of Dallas v. Hughes (05-10-00511-CV) – Recites well-established (1) standard for reviewing a challenge to the trial court’s subject matter jurisdiction; (2) rule that governmental immunity protects political subdivisions of the state, including cities, counties, and school districts, from suit and liability; (3) immunity from suit deprives a court of subject matter jurisdiction; (4) rule that a plaintiff must plead sufficient facts to invoke a waiver of governmental immunity under the Texas Tort Claims Act; (5) rule that the Texas Recreational Use Statute controls over the Texas Tort Claims Act and limits a city’s duty to a plaintiff engaged in recreation on the premises; (6) definition of “gross negligence”; and (7) rule that the Texas Recreational Use Statute does not obligate a landowner to warn of known conditions.

Hackett v. Park Springs Townhomes (05-11-00568-CV) – Recites well-established (1) rule that appellate jurisdiction is never presumed; (2) rule that, unless the record affirmatively shows the propriety of appellate jurisdiction, an appellate court must dismiss; and (3) rule that, without a timely-filed notice of appeal, appellate court lacks jurisdiction over the appeal.

Hartford Ins. Group v. Perez (05-11-00195-CV) – Recites well-established rule that the deadline for filing a notice of appeal runs from the date a trial court dismisses a case rather than the date the trial court rules on a motion to reinstate the case.

In re Estate of Brown (05-10-01243-CV) – Recites well-established (1) rule that appellate jurisdiction is never presumed; (2) rule that, unless the record affirmatively shows the propriety of appellate jurisdiction, an appellate court must dismiss; and (3) rule that, unless an interlocutory appeal is specifically authorized by the Texas constitution or by a statute, appellate courts have jurisdiction only over appeals taken from final judgments.

Dallas Court of Appeals cases for the week of June 6, 2011

Tuesday, June 21st, 2011

For the week of June 6, 2011, the Dallas Court of Appeals issued seventeen 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 eight cases are as follows:

Cooper v. Texas Workforce Comm’n (05-10-00513-CV) – Recites well-established rule that, if a statute is ambiguous, rules of construction or other extrinsic aids cannot be used to create ambiguity.

Hernandez v. Hammond Homes, Ltd. (05-09-01382-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) rule that an employer of an independent contractor who retains the right to control the contractors work may be liable for negligence in exercising that right; and (3) rule that in a premises liability case, a landowner is liable to employees of an independent contractor only for claims arising from a concealed, pre-existing defect.

Howard v. Burlington Ins. Co. (05-09-01324-CV) – Recites well-established (1) rule that, when a motion for summary judgment presents both no-evidence and traditional grounds, appellate court first reviews the propriety of summary judgment under no-evidence standards; (2) standard for reviewing no-evidence summary judgment; (3) standard for reviewing traditional summary judgment; (4) definition of “insurance binder”; (5) rule that interpretation of insurance contracts is governed by the same rules that apply to contracts in general; (6) rule that an insured has a duty to read and be familiar with the terms of his insurance policy; (7) rule that an insured is bound by the terms of his insurance policy whether he reads it or not; (8) rule that the party alleging agency has the burden of proving its existence; and (9) rule that, because a corporation is legal fiction, it can act only through its agents.

Ikemenogo v. Reyes (05-10-00462-CV) – Recites well-established (1) rule that an individual who is a party to civil litigation has the right to represent himself at trial and on appeal; and (2)  rule that pro se litigants are held to the same standards as licensed attorneys.

In re A.J.M. (05-10-00920-CV) – Recites well-established rule that the Sixth Amendment right to effective counsel applies to civil cases only when the case involves termination of parental rights or deprivation of liberty.

In re Estate of Brown (05-10-01513-CV) – Recites well-established (1) rule that appellate jurisdiction is never presumed; (2) rule that, unless the record affirmatively shows the propriety of appellate jurisdiction, an appellate court must dismiss; and (3) rule that, unless an interlocutory appeal is specifically authorized by the Texas constitution or by a statute, appellate courts have jurisdiction only over appeals taken from final judgments.

Kocak v. Kocak (05-09-00637-CV) – Recites well-established (1) rule that appellate court is obligated to construe rules of appellate procedure reasonably yet liberally; and (2) rule that pro se litigants are held to the same standards as licensed attorneys.

Martin v. Clinical Pathology Labs., Inc. (05-09-01079-CV) – Recites well-established (1) rule that standing cannot be waived; (2) standing may be raised by appellate court sua sponte; (3) rule that, if a plaintiff lacks standing at the time of filing suit, the case must be dismissed even if the plaintiff later acquires an interest sufficient to support standing; (4) rule that, when a person files a bankruptcy petition, he loses all interest in his property, and his property is then vested in the bankruptcy estate; (5) rule that a bankruptcy estate includes any legal claims the bankruptcy debtor owned when he filed the bankruptcy petition; (6) in Chapter 11 bankruptcy, the bankruptcy trustee has exclusive standing to assert claims that are owned by the bankruptcy estate; (7) Chapter 13 bankruptcy debtors retain standing to sue on claims that are owned by the bankruptcy estate; and (8) standard for reviewing trial court’s ruling on special exceptions.

Dallas Court of Appeals cases for the week of May 30, 2011

Saturday, June 4th, 2011

For the week of May 30, 2011, the Dallas Court of Appeals issued nineteen 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 nine cases are as follows:

Arrendondo v. Dugger (05-09-00625-CV) – Recites well-established (1) holding that, under the unlawful acts doctrine, a plaintiff is barred from recovering damages arising out of his own unlawful acts; (2) standard for reviewing traditional summary judgment; (3) standard for reviewing statutory construction; (4) rule that a statutory wrongful death claim is wholly derivative of the decedent’s claim and is subject to any defense that would have been available against the decedent had he survived; (5) rule that, where the common law is revised by statute, the statute controls; (6) rule that the legislature has the power to set public policy; and (7) rule that no one has any vested or property interest in the common law and, therefore, no one is deprived of a constitutional right by their change through legislative enactment.

Crithfield v. Boothe (05-10-00789-CV) – Recites well-established (1) standard for reviewing findings of fact; (2) standard for reviewing factual sufficiency of evidence; (3) rules governing when Texas courts may assert personal jurisdiction over nonresident; (4) rule that fraud has no place in assessing contacts to determine jurisdiction; (5) 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; (6) rule that a valid and enforceable forum selection clause in a contract will support the denial of a special appearance entered by a party to the contract; and (7) rule that, when an individual signs a contract without indicating he is signing in a representative capacity, he is liable on a contract.

County of Dallas v. Walker (05-10-01421-CV) – Recites well-established rule that, under the Texas Tort Claims Act for a governmental entity’s immunity to be waived for a premises defect, the entity must have had actual knowledge of the dangerous condition at the time of the accident.

Durham v. Jones (05-11-00059-CV) – Recites well-established rule that, if an order does not dispose of all parties and claims, it is not a final order.

Dukatt v. Dukatt (05-10-01431-CV) – Recites well-established (1) rules governing when Texas courts may assert personal jurisdiction over nonresident; (2) standard for reviewing determination of special appearance; (3) rule that, when a trial court grants a special appearance and a plaintiff seeks to reverse that ruling on appeal on the ground that the special appearance was not sworn, the plaintiff must have raised that defect in the trial court; and (4) rule that a trial court is not required to file findings of fact and conclusions of law in connection with its order on a special appearance.

In re M.V. (05-10-00034-CV) – Recites well-established (1) definition of “clear and convincing evidence”; (2) standard for reviewing legal sufficiency of evidence; (3) standard for reviewing factual sufficiency of evidence; (4) definition of “endanger”; (5) holding that there is a strong presumption that the best interest of a child will be served by preserving the parent-child relationship; and (6) rule that parental rights may not be terminated merely because the child may be better off living somewhere else.

Rosenbaum v. Dupor (05-09-00994-CV) – Recites well-established (1) standard for reviewing case tried on stipulated facts; and (2) rule that stipulated facts are binding on the parties, the trial court, and the appellate court.

In re Spencer (05-11-00636-CV) – Recites well-established rule that court of appeals does not have mandamus jurisdiction over a justice of the peace.

Shaw v. Mid-Continent Cas. Co. (05-10-00642-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) rule that, when a party fails to assign error to all the grounds upon which summary judgment could have been granted, the summary judgment should be affirmed; and (3) definition of “condition precedent.”