Archive for October, 2011

Dallas Court of Appeals cases for the week of October 24, 2011

Monday, October 31st, 2011

For the week of October 24, 2011, the Dallas Court of Appeals issued eighteen 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 thirteen cases are as follows:

Alderson v. Alderson (05-10-01394-CV) – Recites well-established (1) holding that the occurrence of an injustice is not sufficient to justify relief by bill of review; (2) rule about when bill of review is proper; (3) rule that the only exception to the four-year bill of review statute of limitations is when the petitioner proves extrinsic fraud; and (4) definition of “extrinsic fraud.”

Chambers v. Kaufman County (05-11-00509-CV) – Recites well-established (1) rule that governmental immunity from suit defeats a trial court’s subject matter jurisdiction; (2) standard for reviewing trial court’s ruling on a plea to the jurisdiction; (3) rule that pro se litigants are held to the same standards as licensed attorneys; (4) definition of “sovereign immunity”; (5) definition of “governmental immunity”; and (6) duties owed by governmental units for “premises defects” and for “special defects.”

Deese v. Combined Specialty Ins. Co. (05-10-00707-CV) – Recites well-established standard for reviewing trial court’s denial of a mistrial.

Florance v. State (05-10-01653-CV) – Recites well-established (1) rule that appellate jurisdiction is never presumed; (2) rule that, unless the record affirmatively shows the appellate court’s jurisdiction, the court must dismiss the appeal; and (3) rule that, when a trial court renders a final judgment, a party later files an amended petition, and the trial court renders a second judgment based on the amended petition, these are treated as two distinct cases for appellate purposes regardless of the fact that the two cases have the same trial court cause number.

Harrison v. Jones (05-11-00872-CV) – Recites well-established rule that appellate courts have jurisdiction over appeals only when those appeals are taken from final judgments or from interlocutory orders made appealable by the legislature.

In re A.M.A.R. (05-10-01303-CV) – Recites well-established standard for reviewing trial court’s ruling on a bill of review.

Jackson v. Citibank (South Dakota), N.A. (05-10-01399-CV) –  Recites well-established rule that pro se litigants are held to the same standards as licensed attorneys.

Key v. Muse (05-11-00071-CV) – Recites well-established standard for reviewing trial court’s ruling on motion to dismiss a health care liability claim.

LTTS Charter School, Inc. v. C2 Constr., Inc. (05-07-01469-CV) – Recites well-established (1) standard for reviewing whether trial court has subject matter jurisdiction; (2) rule that, under the common-law doctrine of sovereign immunity, the state cannot be sued without its consent; and (3) rule that a municipality is immune from suit for torts committed in the performance of its governmental functions but not for torts committed in the performance of its proprietary functions.  Additionally, holds that “open-enrollment charter schools have governmental immunity from suit.”

Muthukumar v. Dess (05-10-01324-CV) – Recites well-established rule that pro se litigants are held to the same standards as licensed attorneys.

Nichols v. County of Dallas (05-09-01426-CV) – Recites well-established rule that, when a party petitions to recover excess proceeds following a tax lien foreclosure sale, a trial court’s order on that petition is appealable only if the order directs that the excess proceeds be paid.

Sawyer v. Deutsche Bank Nat’l Trust Co. (05-10-01634-CV) – Recites well-established rule that if a party fails to claim in the trial court that a foreclosure sale was invalid, she has not preserved this claim for appellate review.

White v. Fritz (05-10-01249-CV) – Recites well-established rule that pro se litigants are held to the same standards as licensed attorneys.

Dallas Court of Appeals cases for the week of October 17, 2011

Friday, October 21st, 2011

For the week of October 17, 2011, the Dallas Court of Appeals issued twelve 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 eight cases are as follows:

City of Dallas v. Brown (05-11-00165-CV) – Recites well-established (1) standard for reviewing whether a trial court has subject matter jurisdiction; (2) rule that, under the common-law doctrine of sovereign immunity, the state cannot be sued without its consent; and (3) rule that, for the Legislature to waive the State’s sovereign immunity, a statute or resolution must contain a clear and unambiguous expression of the Legislature’s waiver of immunity.

In re A.L.V.Z. (05-11-00784-CV) – Recites well-established standard for reviewing trial court’s sustaining of contest to affidavit of indigence.

In re M.C. (05-11-00042-CV) – Recites well-established (1) rule that proceedings to involuntarily terminate parental rights are strictly scrutinized on appeal; and (2) rule that statutes governing involuntary termination of parental rights are strictly construed in favor of the parent.

La Providencia Food Prods. Co. v. Super Plaza Stores, LLC (05-10-00709-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) elements of common-law fraud cause of action; and (3) rule that intent and credibility of witnesses are issues for the trier of fact.

Lucky Dawg Movers, Inc. v. Wee Haul, Inc. (05-10-00222-CV) – Recites well-established rule that a trial court’s failure to respond to a request for required findings of fact is error and presumed harmful unless the record before the appellate court affirmatively shows that the complaining party suffered no harm.

Margetis v. Peterson (05-10-01281-CV) – Recites well-established rule that, to property present an issue on appeal, a party’s brief must contain argument with citations to authorities and to the record.

McIntyre v. Lexis Nexis (05-11-00809-CV) – Recites well-established rule that (1) appellate jurisdiction cannot be invoked without a signed judgment or order; and (2) a record of the court’s ruling by the court reporter is not an acceptable substitute for a written order.

Transcontinental Realty Investors, Inc. v. Orix Capital Mkts., LLC (05-10-00655-CV) – Recites well-established (1) rule that Declaratory Judgments Act cannot be used to obtain an advisory opinion; (2) rule that declaratory judgment is appropriate only when a real controversy exists between the parties and the entire controversy may be determined by the judicial declaration; and (3) rule that a case is not ripe if its resolution depends on contingent facts or events that have yet to come to pass.

Dallas Court of Appeals cases for the week of October 10, 2011

Tuesday, October 18th, 2011

For the week of October 10, 2011, the Dallas Court of Appeals issued five 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 case is as follows:

In re Brick (05-11-01106-CV) – Recites well-established rule that, to obtain mandamus relief, relators must show that the trial court has abused its discretion and that they have no adequate appellate remedy.

Court of Appeals justices share their their preferences about appellate briefs

Monday, October 10th, 2011

At two continuing legal education seminars I recently attended, court of appeals justices have expressed their preferences about appellate briefs.  In no particular order, here are their preferences:

1. Resist client pressure to file long appellate briefs. Clients often like long briefs, but justices seldom do.

2. Include hyperlinks (to cases cited in the brief, to the appellate record, etc.) in electronically-filed briefs.

3. Don’t use the word “whether” in your issues presented (e.g., Whether the trial court erred. . .).  You should advocate in your issues presented, and use of the word “whether” is not advocacy.  Much better would be a declarative sentence like “The trial court erred in. . .” or, alternatively, a question like “Did the trial court err in ignoring the precedent that. . .?”

4. An appellant’s brief should anticipate arguments which will likely be made in the appellee’s brief.  The appellant should not wait until his/her reply brief to address the appellee’s arguments.  Instead, the appellant’s reply brief should be used only for unanticipated arguments.

5. Always be respectful when referring to actions of trial court judges.  It’s fine to say that a trial court judge “made a mistake.”  But harsher language is unwelcome.  Remember that many appellate justices used to be trial court judges and sympathize with how hard it is for trial court judges to make decisions quickly during trial, often without the assistance of a law clerk.

6. Some appellate justices read appellate briefs on paper, some on desktop monitors, and some on iPads.  Keep this in mind when formatting briefs.

7. There is usually only one copy of the clerk’s record, but there are three appellate justices (and often three staff attorneys) working on an appeal.  So, if there is a document from the clerk’s record that you particularly want to be studied, you should include that document in your brief’s appendix.  That way, all of the justices and staff attorneys will be able to access the document at any time.

8. If you must have several authors collaborate on writing an appellate brief, be sure to give one person the authority and responsibility for performing final edits to the brief, making it read like it was written by one person rather than by a committee.

9. Include the standard of review at the beginning of the argument section of your appellate brief, and then continue to weave the standard of review throughout your argument section.  Even if the standard is unfavorable to you, embrace the standard and show how you can satisfy it.

10. In an appellant’s brief, don’t forget to let the court of appeals know what relief you are seeking.  Certainly do this in your prayer, but considering doing this at the beginning of your argument section, too.

11. When writing an appellee’s brief, you should track the order of the arguments in the appellant’s brief.  If you must deviate from this order, explain that you are doing so and why it is necessary.

12. Before filing any appellate brief, review the rule about what must be included in the brief.  You don’t want to get off on the wrong foot with the court of appeals by failing to respect its rules.

Dallas Court of Appeals cases for the week of October 3, 2011

Saturday, October 8th, 2011

For the week of October 3, 2011, the Dallas Court of Appeals issued three opinions in civil cases.  One of these disposes 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 two cases are as follows:

In re Stokely (05-10-01660-CV) – Recites well-established (1) standard for reviewing trial court’s ruling on whether to dissolve an injunction; and (2) rule that findings of fact and conclusions of law are not appropriate when a court rules on a motion without hearing any evidence.

Strong v. Strong (05-09-01273-CV) – Recites well-established (1) standard for reviewing trial court’s denial of motion for continuance; (2) standard for reviewing trial court’s admission and exclusion of evidence; (3) standard for reviewing trial court’s decision regarding child custody, control, possession, and visitation; and (4) standard for reviewing trial court’s denial of motion for new trial.

Dallas Court of Appeals cases for the week of September 26, 2011

Saturday, October 1st, 2011

For the week of September 26, 2011, the Dallas Court of Appeals issued seven opinions in civil cases.  Three 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:

Copeland v. Cooper (05-09-01168-CV) – Recites well-established (1) rule that, in no-answer default cases, a defendant’s liability for all causes of action pleaded is conclusively established and all allegations of fact are deemed admitted except as to the amount of unliquidated damages; (2) reversal is required when, by no fault of appellant, he is unable to produce an appellate record; (3) rule that judgment cannot be rendered on the pleadings in post-answer default judgments; and (4) standard for reviewing trial court’s ruling on motion for new trial.

Dallas Cent. Appraisal Dist. v. Towers at Sunnyvale, LLC (05-10-01440-CV) – Recites well-established elements required for an act to constitute a judicial admission.

Jensen v. Southwest Rodeo, L.P. (05-10-00596-CV) – Recites well-established standard for reviewing traditional summary judgment.

Reagan v. Telleson Privte Bank (05-10-00444-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, an appellate court will affirm the summary judgment if any of the grounds advanced in the motion are meritorious; and (3) rule that, if an appellant does not challenge each possible ground on which summary judgment could have been granted, an appellate court must uphold the summary judgment on the unchallenged ground.