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.