Archive for November, 2011

Dallas Court of Appeals cases for the week of November 14, 2011

Saturday, November 19th, 2011

For the week of November 14, 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:

Bever Props., L.L.C. v. Jerry Huffman Custom Builder, L.L.C. (05-10-00323-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) rule that denial of summary judgment is reviewable when both parties moved for summary judgment and the trial court has granted one motion and denied the other; (3) rule that, when a party moves for summary judgment on multiple grounds and the trial court’s order granting the motion does not specify the grounds relied upon for its ruling, a party appealing that order must negate all possible grounds upon which the order could have been granted; (4) rule that a trial court can render summary judgment only on those grounds that are specifically addressed in a motion for summary judgment; (5) standard for reviewing no-evidence summary judgment; (6) rule that a no-evidence motion for summary judgment that only generally challenges the sufficiency of the nonmovant’s case and fails to identify the specific elements of the nonmovant’s claim or claims that lack supporting evidence is insufficient to support summary judgment; (7) elements of civil conspiracy claim; (8) elements of breach of fiduciary duty claim; and (9) elements of negligent misrepresentation claim.

Hewitt v. Biscaro (05-10-01011-CV) – Recites well-established (1) holding that an objection that an affidavit contains hearsay is an objection to the form of the affidavit; (2) rule that a defect in the form of an affidavit must be objected to in the trial court; (3) rule that the failure to obtain a ruling on an objection to the form of an affidavit waives the objection; (4) standard for reviewing traditional summary judgment; and (5) rule that, where a party’s performance under a contract is made impracticable by the occurrence of an event the non-occurrence of which was a basic assumption on which the contract was made, his duty to render that performance is discharged.

In re Pruitt (05-11-01526-CV) – Recites well-established rule that court of appeals does not have mandamus jurisdiction over a justice of the peace.

Kishor v. TXU Energy Retail Co., LLC (05-10-01496-CV) – Recites well-established (1) rule that appellate court does not have jurisdiction to consider issues raised on appeal by a party who did not file or join in a timely notice of appeal; (2) standard for reviewing a trial court’s evidentiary rulings; (3) rule that an appellate court considers the entire record, including any trial on the merits, in reviewing a trial court’s venue determination; (4) standard for reviewing factual sufficiency of evidence; (5) rule that, if there is a written contract that unambiguously shows on its face that it is the obligation of the person who signed it, the signer may not introduce parol evidence to show that the signer intended to bind only his principal; and (6) rule that the trial judge is the sole arbiter of the credibility of witnesses in a bench trial.

McCoy v. Dallas Area Rapid Transit (05-10-01478-CV) – Recites well-established (1) rule that, when a party moves for summary judgment on multiple grounds and the trial court’s order granting the motion does not specify the grounds relied upon for its ruling, a party appealing that order must negate all possible grounds upon which the order could have been granted; and (2) rule that, in any suit against a governmental entity, the plaintiff must plead a valid waiver of immunity.

Riner v. Neumann (05-10-00445-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) definition of “deed of trust”; (3) rule that an alternative pleading cannot be used as a judicial admission; (4) definition of “conclusory statement”; (5) rule that a conclusory statement in an affidavit can neither support nor defeat summary judgment; (6) definition of “the American Rule”; (7) rule that a plaintiff in a trespass-to-try-title suit cannot recover damages; (8) holding that Texas’s only exception to the American Rule is the common-fund doctrine; and (9) holding that trial courts lack the authority to award attorneys’ fees contrary to the American Rule.

Dallas Court of Appeals cases for the week of November 7, 2011

Friday, November 11th, 2011

For the week of November 7, 2011, the Dallas Court of Appeals issued twenty-one opinions in civil cases.  Twelve 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:

Broadnax v. Texas Mut. Ins. Co. (05-11-0589-CV) – Recites well-established (1) rule that a plaintiff has the absolute right to a non-suit of its case at the moment the plaintiff file a non-suit motion with the clerk or makes a motion in open court as long as the defendant has not made a claim for affirmative relief; (2) rule that an order granting a non-suit, not the requesting of a nonsuit, triggers appellate deadlines; and (3) rule that, without a timely-filed notice of appeal, an appellate court has no jurisdiction over an appeal.

Bruce v. Federal Nat’l Mortgage Ass’n (05-10-01402-CV) – Recites well-established (1) rule that, in a forcible detainer action, the only issue to be determined is whether a party seeking is entitled to immediate possession; and (2) rule that a forcible detainer action is in addition to any other remedy that a party may have, such as a question regarding title.

GE Money Bank v. Sharif (05-10-01222-CV) –  Recites well-established rule that an order granting a motion for new trial within the trial court’s plenary jurisdiction is not subject to review either by direct appeal from that order or from a final judgment rendered after further proceedings in the trial court.

Imagine Auto. Group, Inc. v. Boardwalk Motor Cars, LLC (05-11-01119-CV) – Recites well-established (1) standard for reviewing trial court’s determination of the amount of security necessary to supercede a judgment; and (2) rule that attorneys’ fees are not considered “compensatory damages” in a breach of contract case unless the contract provides for fees as compensation.  Additionally, holds that attorneys’ fees are not considered compensatory damages in a Texas Theft Liability Act case.

In re A.T. (05-10-00363-CV) – Recites well-established (1) standard for reviewing an order granting or denying a bill of review; (2) under an abuse of discretion standard, legal and factual insufficiency are not independent grounds for reversal; and (3) statute of limitations applicable to bills of review.

In re Estate of Hudson (05-11-00008-CV) – Recites well-established rule that the proponent of a will has the burden to establish that the will is valid and has not been revoked.

In re J.D.D. (05-10-01488-CV) – Recites well-established standard for reviewing trial court’s decision to modify child support or conservatorship.

Litoff v. Meadows Serv. Corp. (05-10-01173-CV) – Recites well-established (1) standard of review of county court’s dismissal for deficient appeal bond; (2) rule that appellate jurisdiction is never presumed; and (3) rule that a court always has the authority to determine its own subject matter jurisdiction.

Walters v. 21st Century Ins. Co. (05-11-01391-CV) – Recites well-established rule that an oral notice of appeal does not constitute a notice of appeal within the meaning of the rules of appellate procedure.

Court of Appeals justice shares thoughts about e-filed appellate briefs

Tuesday, November 8th, 2011

I recently attended a continuing legal education seminar at which Justice Martin Richter spoke about e-filing in the Dallas Court of Appeals.  Here are the highlights of his presentation:

1. The Dallas Court of Appeals began accepting e-filing this year.  E-filing has been well-received by the court and will likely become mandatory sometime next year.

2. Don’t merely prepare an appellate brief as you’ve always done and then convert it to PDF for e-filing.  Instead, prepare the brief so that it can be easily read and navigated on an iPad. . . as all of the court’s justices now have iPads.

3. Hyperlinks and bookmarks are extremely helpful in navigating a brief. 

4. All e-filings in the court must be submitted via one of the six approved providers.  Amazingly, one of the six providers removes hyperlinks and bookmarks from briefs before forwarding the briefs to the court.  [Justice Richter did not identify this provider, but it seems that he was referring to ProDoc, which happens to be the largest provider in terms of users and filings.]

Dallas Court of Appeals cases for the week of October 31, 2011

Tuesday, November 8th, 2011

For the week of October 31, 2011, the Dallas Court of Appeals issued eighteen 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 four cases are as follows:

Dallas County v. Logan (05-11-00480-CV) – Recites well-established (1) standard for reviewing whether trial court had subject matter jurisdiction; and (2) rule that, under the common-law doctrine of sovereign immunity, the state cannot be sued without its consent.

Milwee-Jackson Joint Venture v. Dallas Area Rapid Transit (05-08-01164-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) standard for reviewing traditional summary judgment; (3) rule that, when both traditional and no-evidence summary motions for summary judgment are at issue, appellate court reviews no-evidence summary judgment first; (4) standard for reviewing whether access to property has been materially and substantially impaired; (5) statute of limitations applicable to inverse condemnation claims; (6) rule that sovereign immunity deprives a trial court of subject-matter jurisdiction for lawsuits in which the State or certain governmental units have been sued unless the State consents to suit; (7) rule that immunity from liability is an affirmative defense; and (8) elements of a “takings claim.”

Payberah v. Payberah (05-10-01098-CV) – Recites well-established (1) definition of the term “waiver”; and (2) rule that a reply brief may not be used to raise new issues on appeal.

Pediatrix Med. Group, Inc. v. Robinson (05-10-01546-CV) – Recites well-established standard for reviewing trial court’s decision with respect to expert reports required for health care liability claims.