Archive for July, 2011

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

Saturday, July 30th, 2011

For the week of July 25, 2011, the Dallas Court of Appeals issued thirty-four opinions in civil cases.  Nineteen 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 fifteen cases are as follows:

Blackard v. Fairview Farms Land Co., Ltd. (05-10-00123-CV) – Recites well-established (1) rule that there is no presumption that an order granting summary judgment is a final order; (2) rule that an order granting summary judgment is not a final order unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and parties; (3) rule that pleadings are sufficient if they give the opposing party fair notice of the claim involved; (4) rule that a judgment is final when the judgment disposes of some but not all of the defendants, the only remaining defendants have not been served or filed answers, and nothing in the record indicates that the plaintiff ever expected to obtain service on the unserved defendants; (5) standard for reviewing no-evidence summary judgment; and (6) standard for reviewing traditional summary judgment.

Fulgham v. Fischer (05-10-00097-CV) – Recites well-established (1) rule that, in an appeal from a bench trial, the trial court’s findings of fact have the same weight as a jury verdict; (2) standard for reviewing factual sufficiency of evidence; (3) rule that, in a bench trial, the trial court is the sole judge of the credibility of witnesses; (4) standard for reviewing legal sufficiency of evidence; (5) standard for reviewing conclusions of law; (6) rule that incorrect conclusions of law will not require reversal if the controlling findings of fact will support a correct legal theory; (7) rule that failure to cite legal authority or provide substantive analysis in an appellate brief results in waiver of a complaint; (8) rule that quantum meruit does not arise out of a contract but rather is independent of a contract; and (9) elements of quantum meruit cause of action.

Gaffar v. Kamal (05-10-00560-CV) – Recites well-established (1) rule that, in a bench trial where no findings of fact or conclusions of law are filed, all findings necessary to support the trial court’s judgment are implied; (2) rule that, when a complete reporter’s record is filed, implied findings may be reviewed for legal and factual sufficiency by the same standards applied to a jury’s answer; (3) rule that, when a party attacks the legal sufficiency of an adverse finding on an issue for which he had the burden of proof, the party must demonstrate on appeal that the evidence conclusively established as a matter of law all vital facts to support the issue; and (4) rule that a statute of limitations does not begin to run until the cause of action accrues.

In re M.C.B. (05-10-00158-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) holding that strict compliance with rules relating to issuance, service, and return of citation must be shown on the fact of the record or the attempted service of process will be rendered invalid; and (3) rule that a default judgment is improper against a defendant who has not been served in strict compliance with the law, even if he has actual knowledge of the lawsuit.

In re Oncor Elec. Delivery Co. LLC (05-11-00825-CV) – Recites well-established (1) rule that, in order to obtain mandamus relief, relators must show both that the trial court has abused its discretion and that they have no adequate appellate remedy; and (2) holding that an improper denial of leave to designate a responsible third party is not an adequate appellate remedy.

In re Tarrant County (05-11-00379-CV) – Recites well-established rule that, while a county can insist on being sued in that county, the county may waive that right.

Jackson v. Citibank (South Dakota), N.A. (05-10-00224-CV) – Recites well-established rule that a citations to an appendix of an appellate brief are not a substitute for citation to the appellate record.

Main v. Royall (05-09-01503-CV) – Recites well-established (1) standard for reviewing trial court’s evidentiary rulings; (2) rule that improperly admitted evidence constitutes reversible error only if the error probably caused the rendition of an improper judgment; (3) standard for reviewing no-evidence summary judgment; (4) elements of defamation cause of action; and (5) rule that, for a statement to be actionable as defamation, it must refer to an ascertainable person.  Additionally, holds that authors and publishers of books shall be treated as members of the media for the purpose of statute authorizing interlocutory appeal of trial court order denying a motion for summary judgment based on First Amendment grounds.

Matheson Tri-Gas, Inc. v. Atmel Corp. (05-09-01155-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; and (2) rule that the construction of an unambiguous contract is a question of law.

Mukoro v. Myers (05-10-00856-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) rule that an employer is not liable for an employee’s intentional and malicious acts that are unforeseeable given the employee’s duties; and (3) rule that, in an attorney-client relationship, a fiduciary duty arises as a matter of law.

RM Crowe Prop. Servs. Co., L.P. v. Strategic Energy, L.L.C. (05-10-00234-CV) – Recites well-established (1) rule that a party challenging the legal sufficiency of an adverse finding on an issue for which he had the burden of proof, the party must demonstrate on appeal that the evidence conclusively established as a matter of law all vital facts to support the issue; (2) definition of “novation”; (3) elements of a novation affirmative defense; (4) a party asserting an affirmative defense in a trial before the court must request findings of fact in support of the defense to avoid waiving it; (5) factors  to guide a trial court in determining whether attorneys’ fees are reasonable and necessary; (6) standard for reviewing the amount of attorneys’ fees awarded by a trial court sitting as trier of fact; (7) rule that billing records need not be introduced to recover attorneys’ fees; and (8) rule that, to meet a party’s burden to segregate its attorneys’ fees, it is sufficient to submit to the fact-finder testimony from the party’s attorney concerning the percentage of hours that related solely to a claim for which fees are not recoverable.

Schultz v. Lester (05-09-01549-CV) – Recites well-established (1) standard for reviewing evidentiary rulings; (2) test governing whether expert testimony is admissible; (3) rule that, when the reliability of an expert’s opinion is challenged, the trial court must ensure that the expert opinion comports with applicable professional standards; (4) rule that a general objection to evidence as a whole, which does not point out specifically the portion objected to, is properly overruled if any part of the evidence is admissible; (5) rule that a trial court’s ruling on a motion in limine preserves nothing for appellate review, as a party must object at trial to preserve error on appeal; (6) for reversal based on an evidentiary ruling, the appellant must show that the evidentiary ruling was in error and that the error probably caused the rendition of an improper judgment; (7) presumption that a jury followed the trial court’s instructions; (8) definition of “adjudicative facts”; and (9) standard for reviewing a trial court’s submission of jury instructions and jury question.

Siddiq v. Hawkins (05-09-00581-CV) – Recites well-established (1) standard for reviewing legal sufficiency of evidence; (2) standard for reviewing factual sufficiency of evidence; (3) standard for reviewing trial court’s conclusions of law; (4) definition of “equitable title”; (5) definition of “legal interest”; (6) definition of “legal title”; (7) rule that an equitable title is superior to a legal title; (8) rule that a purchaser under a contract for conveyance of property does not acquire equitable title to the property until he pays the purchase price and fully performs the obligations under the contract; (9) definition of “resulting trust”; (10) rule that, when properly recorded and indexed, an abstract of judgment creates a judgment lien that is superior to the rights of subsequent purchasers and lienholders; and (11) rule that a party has constructive notice of instruments properly recorded in the proper county.

Thornton v. Dobbs (05-10-0041-CV) – Recites well-established (1) rule that, in an appeal from a bench trial, the trial court’s findings of fact have the same weight as a jury verdict; (2) standard for reviewing factual sufficiency of evidence; (3) rule that, in a bench trial, the trial court is the sole judge of credibility of witnesses; (4) rule that, when an appellant challenges the legal sufficiency of an adverse finding on which he did not have the burden of proof at trial, he must demonstrate that there is no evidence to support the adverse ruling; (5) standard for reviewing trial court’s conclusions of law; (6) rule that incorrect conclusions of law will not require reversal if the controlling findings of fact will support a correct a correct legal theory; (7) elements of breach of contract cause of action; and (8) elements required for the formation of a valid and binding contract.

Watson v. Homeowners Ass’n of Heritage Ranch, Inc. (05-10-00364-CV) – Recites well-established standard for reviewing traditional summary judgment.

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

Thursday, July 28th, 2011

For the week of July 18, 2011, the Dallas Court of Appeals issued eighteen 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 eight cases are as follows:

Daniels v. Indemnity Ins. Co. (05-09-00975-CV) – Recites well-established 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 order, the party appealing the order must negate all possible grounds upon which the order could have been based.

Deco-Dence, L.L.C. v. Robertson (05-08-01090-CV) – Recites well-established (1) rule that a partial summary judgment becomes appealable after a final judgment disposing of all parties and issues is rendered; and (2) a creditor’s deed takes priority over an unrecorded deed unless the creditor has notice of the deed at or before the time the lien attaches to the property.

In re L.V. (05-10-00687-CV) – Recites well-established rule that sufficiency of evidence cannot be reviewed without a reporter’s record.

Muthukumar v. Santa Rosa Apartments (05-11-00151-CV) – Recites well-established (1) rule that an appellate court’s jurisdiction is never presumed; (2) rule that an appellate court’s jurisdiction over appeals is established exclusively by constitutional and statutory enactments; (3) rule that a notice of appeal from a final judgment brings forth the entire case; (4) rule that a notice of appeal can only be filed from a final judgment or statutorily authorized interlocutory order; and (5) standard for reviewing a trial court’s order sustaining a contest to an affidavit of indigence.  Additionally, holds that a separate notice of appeal is not necessary to invoke an appellate court’s jurisdiction to review an indigency ruling in civil cases.

Norred v. Hartsfield (05-09-00629-CV) – Recites well-established (1) rule that, while a parent may recover damages for the case he or she provides to an injured child, any recovery is measured by the value of the services provided, not by the amount of income lost while providing the care; (2) standard for reviewing the amount of fees awarded to a guardian ad litem; and (3) rule that a trial court abuses its discretion if it awards ad litem fees for work unrelated to an actual or potential conflict of interest or for work more appropriately performed by the plaintiff’s attorney.

Rachal v. Reitz (05-09-01422-CV) – Recites well-established (1) standard for reviewing an interlocutory order denying motion to compel arbitration; (2) rule that, when no findings of fact and conclusions of law are filed, appellate court must affirm trial court’s order if any legal theory supports it; (3) rule that a party cannot be compelled to arbitrate a dispute when the party has not agreed to do so; (4) rule that, when deciding whether a party has established a valid agreement to arbitrate, appellate court applies standard contract principles and does not resolve doubts or indulge a presumption in favor or arbitration; and (5) elements required for the formation of a valid contract.

Schlichting v. Lehman Bros. Bank FSB (05-10-00223-CV) – Recites well-established (1) rule that, in a forcible detainer action, the only issue for the trial court to determine is which party has the immediate right to possession of the property; (2) rule that any defects in the foreclosure process or with the purchaser’s title to the property may not be considered in a forcible detainer action; and (3) rule that a county court has no jurisdiction to adjudicate title in a de novo trial following the appeal of a forcible detainer suit.

Talliti v. Sarris (05-10-00096-CV) – Recites well-established (1) standard for reviewing alleged error in characterizing property as community or separate; and (2) rule that a “just and right” division of property does not require the trial court to divide a marital estate into equal shares.

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

Friday, July 15th, 2011

For the week of July 11, 2011, the Dallas Court of Appeals issued seventeen 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 twelve cases are as follows:

Affordable Power, L.P. v. Buckeye Ventures, Inc. (05-09-00771-CV) – Recites well-established (1) standard for reviewing legal sufficiency of evidence; (2) standard for reviewing factual sufficiency of evidence; (3) elements of negligent misrepresentation cause of action; (4) components of proximate cause; (5) an agent’s authority to act on behalf of a principal depends on some communication by the principal either to the agent or to the third party; (6) rule that common law indemnity survives in Texas only in products liability actions to protect an innocent retailer in the chain of distribution and in negligence actions to protect a defendant whose liability is purely vicarious in nature; and (7) definition of “vicarious liability.”

Bailey v. Gallagher (05-09-00868-CV) – Recites well-established (1) standard for reviewing trial court’s conclusions of law; (2) standard for reviewing no-evidence summary judgment; and (3) elements of conversion cause of action.

Barnes v. LPP Mortgage, Ltd. (05-10-00605-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) rule that a party moving for summary judgment on limitations grounds must prove when the cause of action accrued; (3) rule that, where demand is a prerequisite to a cause of action, the injured party must make the demand within a reasonable time after it may lawfully be made; (4) rule that a creditor who makes an excessive demand on a debtor is not entitled to attorneys’ fees for litigation required to recover the debt; (5) rule that a demand is not excessive simply because it is greater than what the factfinder later determines is actually due; and (6) rule that the dispositive inquiry for determining whether a demand is excessive is whether the creditor acted unreasonably or in bad faith.

City of Brownsville v. AEP Tex. Cent. Co. (05-09-00808-CV) – Recites well-established definition of “declaratory judgment.”

Fesseha v. Ethiopian Orthodox Church (05-10-00202-CV) – Recites well-established (1) standard for reviewing traditional 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; and (3) holding that the First Amendment prohibits governmental action that burdens the free exercise of religion by encroaching on a church’s ability to manage its internal affairs.

First Nat’l Collection Bureau, Inc. v. Walker (05-10-00129-CV) – Recites well-established (1) standard for reviewing statutory construction; (2) standard for reviewing legal sufficiency of evidence; and (3) standard for reviewing factual sufficiency of evidence.

In re J.K.F. (05-10-00482-CV) – Recites well-established rule that pro se litigants are held to the same standards as licensed attorneys.

Ivanov v. Hughes (05-10-00741-CV) – Recites well-established (1) rule that a nonsuit is effective when filed or when announced orally in open court; (2) rule that a docket entry cannot be used to show the existence of an order or judgment; and (3) rule that granting a nonsuit is a ministerial act.

Skidmore Energy, Inc. v. Maxus (U.S.) Exploration Co. (05-09-00402-CV) – Recites well-established (1) standard for reviewing trial court’s confirmation of arbitration award; (2) rule that, when findings of fact are filed and unchallenged, they 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; (3) rule that, if a party knows or has reason to know of an arbitrator’s alleged bias but remains silent pending the outcome of the arbitration, the party waives the right to complain of the alleged bias; (4) rule that an arbitrator’s authority is limited to disposition of matters expressly covered by an arbitration agreement or implied by necessity; (5) rule that arbitrators exceed their authority when they decide matters not properly before them; and (6) rule that stipulations as to legal conclusions, as opposed to facts, are not binding on courts or parties.

Staton Holdings, Inc. v. Tatum, L.L.C. (05-10-00047-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; and (2) rule that an indemnity agreement will not be construed to indemnify a party against statutorily imposed strict liability unless the agreement expressly states the parties’ intent to provide for indemnification of such claims.  Additionally, holds that this “express-intent rule applies to breach-of-warranty claims.”

Tellez v. Tellez (05-09-01139-CV) – Recites well-established standard for reviewing trial court’s decision to award spousal maintenance.

Union Carbide Corp. v. Martin (05-09-01052-CV) – Recites well-established (1) standard for reviewing the issuance of discovery sanctions; (2) holding that, for a sanction to be just, there must be a direct relationship between the offensive conduct and the sanction imposed and the sanction must be no more severe than necessary to satisfy its legitimate purposes; (3) rule that a trial court has inherent power to impose sanctions; and (4) definition of “letters rogatory.”

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

Saturday, July 9th, 2011

For the week of July 4, 2011, the Dallas Court of Appeals issued ten 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 six cases are as follows:

Adams v. Staxxring, Inc. (05-10-01142-CV) – Recites well-established (1) standard for reviewing waiver of arbitration; and (2) rule that there is a strong presumption against waiver of arbitration rights.

American Express Centurion Bank v. Minckler (05-10-01045-CV) – Recites well-established (1)  standard for reviewing legal sufficiency of evidence; and (2) rule that a trial court’s oral comments from the bench do not constitute findings of fact.

Balistreri-Amrhein v. AHI (05-09-01377-CV) –  Recites well-established (1) standard for reviewing trial court’s order sustaining a contest to an affidavit of indigence; and (2) rule that, while a bankruptcy proceeding stays a suit against a debtor, it does not stay a suit filed by the debtor.

City of Dallas v. CKS Asset Mgmt., Inc. (05-10-01010-CV) – Recites well-established (1) standard for reviewing trial court’s ruling on a plea to the jurisdiction; and (2) elements of a takings or inverse-condemnation claim.

Kostechko v. Mazaheri (05-10-00793-CV) – Recites well-established (1) rule that strict compliance with the Texas Rules of Civil Procedure related to the issuance, service, and return of citation must be shown on the face of the record or the attempted service will be rendered invalid and of no effect; and (2) rule that it is the responsibility of the one requesting service, not the process server, to see that service is properly accomplished.

Vanderwerff v. Larriviel (05-10-00942-CV) –  Recites well-established (1) rule that an oral promise to pay a past-due debt, if the promise is made before an action on the debt is barred by limitations, can create a valid contract which will support an action by the creditor after the limitations period has expired as to the original debt; and (2) standard for reviewing legal sufficiency of evidence.

Dallas Court of Appeals cases for the week of June 27, 2011

Sunday, July 3rd, 2011

For the week of June 27, 2011, the Dallas Court of Appeals issued twenty-one opinions in civil cases.  Fourteen 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:

Bioderm Skin Care, LLC v. Sok (05-10-00044-CV) – Recites well-established (1) standard for reviewing trial court’s order denying motion to dismiss health care liability claim; (2) definition of “health care liability claim”; and (3) definition of “health care.”

Buie v. Buguio (05-09-01100-CV) – Recites well-established rule that, without a reporter’s record, appellate court cannot assess an assertion that the trial court judgment was biased and gave preferential treatment to one party.

Citimortgage, Inc. v. Hubener (05-09-01498-CV) – Recites well-established (1) standard for reviewing trial court’s decision on whether to terminate a receivership; and (2) definition of “short sale.”

Corniello v. State Bank & Trust (05-10-00315-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) standard for reviewing no-evidence summary judgment; (3) standard for reviewing trial court’s finding as to the date that a party received notice of a judgment; (4) standard for reviewing legal sufficiency of the evidence; (5) standard for reviewing factual sufficiency of the evidence; and (6) rule that a property owner is qualified to testify to the value of his property even if he is not an expert and would not be qualified to testify to the value of other property.

Ford Motor Co. v. Wiles (05-09-01141-CV) – Recites well-established standard for reviewing legal sufficiency of the evidence.

Karlseng v. Cooke (05-09-01002-CV) – Recites well-established (1) holding that arbitration of disputes is strongly favored under both federal and Texas law; (2) rule that arbitration awards are entitled to great deference by the courts; (3) standard for reviewing trial court’s decision to confirm an arbitration award; and (4) rule that an arbitrator’s duty of disclosure is triggered by facts that might, to an objective observer, create a reasonable impression of the arbitrator’s partiality.

Texas Delta Mech., Inc. v. Republic Underwriters, Ins. Co. (05-09-00940-CV) – Recites well-established (1) standard for reviewing findings of fact; (2) standard for reviewing legal sufficiency of the evidence; (3) standard for reviewing factual sufficiency of the evidence; and (4) rule that a party’s unpleaded issue may be deemed tried by consent when evidence on the issue is developed under circumstances indicating that both parties understood the issue was in the case and the opposing party fails to make an appropriate complaint.