Archive for August, 2011

Dallas Court of Appeals cases for the week of August 8, 2011

Tuesday, August 30th, 2011

For the week of August 8, 2011, the Dallas Court of Appeals issued thirty-three 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 fourteen cases are as follows:

Barrerra v. White (05-10-00060-CV) – Recites well-established (1) standard for reviewing trial court’s decision to admit or exclude evidence; and (2) rule that, if a party objects to evidence or expert testimony, the proponent of the evidence or testimony has the burden of demonstrating admissibility.

Bundren v. Holly Oaks Townhomes Ass’n, Inc. (05-09-00788-CV) – Recites well-established (1) rule that unchallenged findings of fact are binding on the appellate court unless the contrary is established as a matter of law or there is no evidence to support the finding; (2) rule that Texas follows the “fair notice” standard of pleading, which relieves the pleader of the burden of pleading evidentiary matters with meticulous particularity; (3) rule that, under the “fair notice” standard of pleading, a pleading is adequate if an opposing attorney of reasonable competence could ascertain the nature and basic issues of the controversy; (4) standard for reviewing trial court’s decision to award or not award attorneys’ fees; and (5) rule that attorneys’ fees awarded can be more than actual damages awarded.

Cunningham v. Anglin (05-10-01023-CV) – Recites well-established holding that due process requires that a person be afforded reasonable notice and hearing before being deprived of a constitutionally protected interest.

Deadmon v. Dallas Area Rapid Transit (05-09-01415-CV) – Recites well-established (1) rule that, if there were claims against a party in one petition, but all claims against the party are omitted in a subsequent petition, this operates as a voluntary dismissal of the party from the lawsuit; (2) rule that a party is final for purposes of appeal if it disposes of all pending parties and claims; (3) when a trial court sustains a plea to the jurisdiction without specifying its grounds for doing so, an appellant must challenge each independent ground asserted in the plea; and (4) rule that there is no waiver-by-conduct exception to sovereign immunity.

Graham v. Federated Dep’t Stores, Inc. (05-09-01310-CV) – Recites well-established (1) standard for reviewing no-evidence summary judgment; and (2) rule that a pro se litigant is held to the same standards as licensed attorneys and must comply with applicable laws and rules of procedure.

Harber v. CTI Petroleum, Inc. (05-10-00432-CV) – Recites well-established standard for reviewing factual sufficiency of evidence.

Hightower v. Baylor Univ. Med. Ctr. (05-10-00300-CV) – Recites well-established (1) standard for reviewing trial court’s determination regarding the adequacy of an expert report supporting a  health care liability claim; and (2) rule that statutes are presumed to be constitutional.

In re E.D. (05-11-00538-CV) – Recites well-established definition of “clear and convincing evidence.”

In re State Auto Prop. & Cas. Ins. Co. (05-11-00559-CV) – Recites well-established (1) rule that, in order to obtain mandamus relief, a party must show both that the trial court abused its discretion and that the party has no adequate appellate remedy; and (2) holding that a denial of discovery that severely compromises a party’s ability to present a viable claim or defense at trial renders an appellate remedy inadequate.

NexBank, SSB v. Orix Fin. Corp. (05-10-00998-CV) – Recites well-established standard for reviewing legal sufficiency of evidence.

Olsen v. Commission for Lawyer Discipline (05-09-00945-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) rule that court reporters are not appropriate at summary judgment hearings; and (3) rule that a trial court is only required to conduct a hearing on a motion for new trial when the motion presents a question of fact upon which evidence must be heard.

Quintana v. Crossfit Dallas, L.L.C. (05-10-00146-CV) – Recites well-established standard for reviewing traditional summary judgment.

State Office of Risk Mgmt. v. Adkins (05-10-00406-CV) – Recites well-established (1) standard for reviewing legal sufficiency of evidence; and (2) rule that not every licensed doctor is automatically qualified to testify on every medical question.

Tommy Gio, Inc. v. Dunlop (05-10-00259-CV) – Recites well-established (1) rule that, when a plaintiff alleges that some failure on his attorney’s part caused an adverse result in prior litigation, the plaintiff has the burden to prove that, but for his attorney’s negligence, he would have prevailed in the prior litigation; and (2) standard for reviewing legal sufficiency of evidence.

Ruback article published in the Appellate Advocate

Tuesday, August 23rd, 2011

Chad Ruback wrote an article about starting an appellate law firm.  The article was published in the Appellate Advocate (the journal of the State Bar of Texas appellate section).

Dallas Court of Appeals cases for the week of August 1, 2011

Sunday, August 7th, 2011

For the week of August 1, 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:

21st Mortgage Corp., Inc. v. Stovall (05-09-01416-CV) – Recites well-established (1) standard for reviewing a trial court’s decision as to joinder of a party; and (2) standard for reviewing traditional summary judgment.

Ascendant Anesthesia PLLC v. Abazi (05-11-00115-CV) – Recites well-established (1) rule that whether an arbitration clause imposes a duty to arbitrate is a matter of contract interpretation and a question of law; (2) rule that, in a de novo review, the trial court’s decision is given absolutely no deference; (3) rule that doubts regrading an arbitration agreement’s scope are resolved in favor of arbitration because there is a presumption favoring agreements to arbitrate; (4) standing doctrine, which requires a controversy to continue to exist between the parties at every stage of the legal proceedings, including the appeal; (5) rule that nonsignatories of arbitration agreements may be bound by the agreement under ordinary contract and agency principles; (6) rule that, when a principal is abound under the terms of a valid arbitration clause, its agents, employees, and representatives are covered by that agreement; (7) rule that claims which would otherwise not be subject to arbitration can become arbitrable when factually intertwined with arbitrable claims; and (8) rule that a party waives an arbitration clause by substantially invoking the judicial process to the other party’s detriment or prejudice.

Brown v. Apex Realty (05-09-01163-CV) – Recites well-established (1) standard for reviewing trial court’s refusal to grant a jury trial; and (2) rule that the failure to adequately brief an issue waives that issue on appeal.

Crow-Billingsley Stover Creek, Ltd. v. SLC McKinney Partners, L.P. (05-09-00962-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; and (2) rule that the interpretation of an unambiguous contract is a question of law.

In re Marriage of Swiercinsky (05-10-00045-CV) – Recites well-established (1) standard for reviewing trial court’s legal conclusions; and (2) rule that, if an appellant does not attack all independent bases that fully support a complained-of judgment on appeal, the appellate court must affirm the judgment.

Katz v. Winston & Cashett (05-10-01535-CV) – Recites well-established (1) rule that the existence of personal jurisdiction is a question of law; and (2) rule that, when a nonresident defendant challenges jurisdiction through a special appearance, he must negate all grounds for personal jurisdiction alleged by the plaintiff to prevail.

Kia Motors Corp. v. Ruiz (05-10-00198-CV) – Recites well-established (1) rule that, if a trial court denies a motion for summary judgment and the case is tried on the merits, the order denying the summary judgment is not reviewable on appeal; (2) standard for reviewing the denial of a motion for JNOV; (3) standard for reviewing legal sufficiency of evidence; (3) definition of “producing cause”; (4) rule that an admission by a party-opponent, being merely a piece of evidence, is not conclusive against the party opponent, but rather may be rebutted by explanation or contradicting evidence; (5) rule that the right to have a jury polled is absolute and the trial court has no discretion in the matter once a request is made; (6) holding that multiple errors, even if considered harmless when taken separately, may result in reversal if the cumulative effect of such errors is harmful; (7) rule that, to show cumulative error, an appellant must show that, based on the record as a whole, but for the alleged errors, they jury would have rendered a verdict favorable to it; (8) rule that the recovery of punitive damages requires a finding of an independent tort with accompanying actual damages; and (9) rule that a defendant cannot be grossly negligent without being negligent.

Mims v. Mims (05-09-01275-CV) – Recites well-established (1) rule that a party may revoke his consent to settle a case any time before judgment is rendered on the agreement; and (2) rule that an agreed judgment rendered after one of the parties revokes his consent is void.