Reverse and Render : Texas Appellate Lawyer & Attorney : Cowles & Thompson Law Firm : Court of Appeals, Texas Supreme Court

A few weeks ago I wrote about an opinion issued by the Fort Worth Court of Appeals, wherein that court held that Civil Practice and Remedies Code Section 33.004(e) applied to a statute of repose to revive the claims against a responsible third party.  Click here for that discussion.  I questioned whether Section 33.004(e)'s reference to statutes of limitation should be construed to include statutes of repose.  Last Friday, the Texas Supreme Court confirmed that Section 33.004(e) does not  apply to statutes of repose.

In Galbraith Engineering Consultants, Inc. v. Pochucha, Sam and Jean Pochucha bought a house in April 2003, that had been built 8 years earlier by builder Bill Cox.   After the house showed water damage following moderate to heavy rainfall, the Pochuchas sued Cox.  Cox in turn filed a motion for leave to designate Galbraith Engineering Consultants as a responsible third party.  The Ponchuchas joined Galbraith as a defendant within sixty days pursuant to Chapter 33.  Galbraith moved for summary judgment and asserted the applicable statute of repose because the Ponchuchas joined it as a defendant more than ten years after completion of the house.  The trial court granted the motion for summary judgment, but the San Antonio Court of Appeals reversed holding that Section 33.004(e) applies to both statutes of limitation and repose.

The Texas Supreme Court reversed the and affirmed the summary judgment.  Construing Section 33.004(e), the court held that the term "limitations" should be construed narrowly to include only statutes of limitation rather than both statutes of limitation and statutes of repose.  The supreme court's opinion may be found at this link.

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I am sad to learn (and report) that the appellate world has lost an icon today.  Rusty McMains passed away this morning in Corpus Christi.

As a briefing clerk at the Texas Supreme Court,  I learned that there were certain oral advocates who were in the "must see" category when they came to town to argue before the court.  Rusty was definitely in the "must see" category.  He had a deep, commanding voice and authoritative demeanor.  He was a great speaker and a long-time contributor to our educational betterment.    I remember well attending my first Advanced Appellate seminar almost 20 years ago where Rusty spoke about the court's charge. 

We are all better off because of Rusty and people like him.   I have little doubt that his golden voice will gain him access through the pearly gates.   He will be missed by many.

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The Houston (First) Court of Appeals recently issued an interesting opinion regarding perfection of an appeal from a small claims court to a county court at law.  The appellant failed to timely file an appeal bond within ten days of the judgment pursuant to to TRCP 571.  Instead, the appellant "deposited $5,000 in cash . . . in lieu of a justice court appeal bond."  The small claims judgment was not in the record, but the judgment was entered on April 12, 2007 at the latest because the appellant attempted to appeal the judgment on that date.  The deposit, however, was not made until May 4, some 22 days later.  Thus, appellant's attempt to perfect the appeal was late regardless of whether the appellant filed a bond or made a deposit.

The court of appeals continued and also stated:

Even if [appellant] had timely filed its cash bond in the justice court, instead of untimely filing it in the county court, when a deposit of cash has not been authorized by statute, such a deposit does not constitute sufficient compliance with the statute that requires a bond to be given.

The court cited two cases, one from 1929 and one from 1952, in support of the proposition that Rule 571 does not authorize the fiing of a cash bond in lieu of a surety bond.  In fact, one case was quoted as holding "we have found no Rule so providing."

That's because the rule didn't exist yet.  Rule 14c was adopted in 1981 and expressly allows any surety bond required by the rules to be satisfied by a cash deposit.  Appellant's appeal in this case could not benefit from the rule because it seems that the attempted deposit was late.  But to the extent the court's holding regarding the deposit was an alternative holding, as opposed to mere dicta, it is contrary to TRCP 14c.  The court's opinion in Gundogan v. Woodgrove Condo. Ass'n can be found at this link. 

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The Dallas Court of Appeals held that plaintiffs were not entitled to take the depositions of George W. and Laura Bush in relation to the ongoing dispute over the location of the proposed Bush Presidental Library.  The Court stated:

For reasons of comity and the policy considerations discussed in [United States v.]Poindexter, we conclude the decision to allow the deposition of a sitting or former President is not controlled by the standards applicable to apex depositions.   . . . Our review of the record indicates that real parties in interest Vodicka and Tafel did not meet either prong of the Poindexter standard.

The bottom line was that the real parties in interest did not establish Bush's testimony was material or necessary and specifically failed to produce a list of proposed questions for trial court review under a "meticulous standard." Accordingly, the Court granted George W. Bush's petition for writ of mandamus and ordered the trial court to enter an order quashing the depositions of the former President and First Lady.   The Court's opinion in In re President George W. Bush can be found at this link.

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The Dallas Bar Association Appellate Law Section meets on Thursday, June 18, 2009, at noon at the Belo Mansion.  Texas Supreme Court clerk Blake Hawthorne and Texas Supreme Court rule attorney Kennon Peterson will be speaking on the subject of "An Insider's View of the Texas Supreme Court."

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The U.S. Fifth Circuit Court of Appeals is preparing to amend existing rules and adopt new ones.  These amendments are mostly prompted by the movement toward electronic filing, which is projected to begin in December of this year.  But there are some proposed changes that could affect your malpractice premiums and you will want to begin familiarizing yourself with them now.   Counting of days will become actual days (inclusive of weekends).  The proposed rules are now open for public comment and may be found here.

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When should a party specially except to the grounds of a summary judgment motion?  Should the non-movant specially except when the grounds are ambiguous?  Or if the grounds are not expressly present? 

The Dallas Court of Appeals addressed this issue in Garza v. CTX Mortgage Company, LLC. 

The Garzas sued CTX for various causes of action relating to CTX's management and administration of the loan proceeds used to construct their house.  CTX successfully moved for summary judgment on all of the Garzas' claims.  The Garzas appealed.

On appeal, the Garzas argued for the first time that CTX did not identify and negate an essential element of each of their claims.  CTX argued that the Garzas waived the argument on appeal because they did not specially except in the trial court.  Did the Garzas waive their right to contest the grounds of CTX's motion?

According to the Court, the Garzas did not need to specially except because special exceptions to summary judgment grounds are only required when the motion is ambiguous.  Here, the motion simply failed to identify and negate elements of each of the Garzas' claims, which is an issue that may be presented for the first time on appeal.

Here is the opinion.  

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In its recent opinion in Perkins v. City of San Antonio, the San Antonio Court of Appeals stated "we disapprove of our conclusion in Wu [v. City of San Antonio],  regarding the applicable standard for reviewing the Board's orders." (emphasis added).  By way of background Wu adopted a hybrid standard of review for a challenge to an administrative order, concluding that the review was a substantial de novo review that did not preclude consideration of additional evidence in existence at the time of the administrative hearing, regardless of whether the evidence was introduced at the administrative hearing.  In Perkins, the same court (different panel) holds that a pure substantial evidence review applies so that only the factual record before the administrative body may be used in determining whether substantial evidence supports the administrative body's ruling.  The opinion in Perkins may be found at this link.

 Which standard controls future cases?  The Perkins panel doesn't overrule Wu, which would send a definitive message that Wu should no longer be relied upon.  Instead, the Perkins panel "disapproves" of Wu.  It may be that the Perkins panel did not simply overrule Wu out of respect for an entirely different panel of the same court.  Perkins is a perfect example of when en banc consideration is appropriate.  Generally, en banc consideration by an appellate court is disfavored, but Appellate Rule 41.2(c) explains that it should be used to maintain uniformity of the court's decisions.

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How effective is a motion for summary judgment that has no evidence attached to it?  Not very.  Sometimes you can dodge a few bullets.  Ultimately, you will get hit.  That's what happened in the Dallas Court of Appeals' opinion in  American Board of Obstetrics and Gynecology, Inc. v. Yoonessi.

The American Board of Obstetrics and Gynecology ("ABOG"), a non-profit, sued one of its members, Mahmood Yoonessi, M.D., for breach of contract, abuse of process, and malicious prosecution.  This lawsuit was a response to lawsuits Yoonessi had filed against it in California and New York.

Yoonessi filed a traditional motion for summary judgment, but attached only ABOG's original petition as evidence.  The court was able to use ABOG's evidence attached in its response to dismiss the breach of contract and malicious prosecution claims.  However, Yoonessi was not so lucky with his abuse of process argument.

In the abuse of process argument, Yoonessi claimed that he used process to maintain a lawsuit "which is a proper use of service, regardless of the actual merits of the case."  But Yoonessi failed to provide any evidence that his use of process was proper.  Thus, the court of appeals reversed judgment on the abuse of process claim and remanded to the trial court for further proceedings. 

You may read this short opinion here.

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