With its opinion in In re Butler, the Dallas Court of Appeals reminds us that there has been an important change to mandamus procedure. Appellate Rule 52.3 was amended effective September 1, 2008, and now requires a certification by the person filing the petition for writ of mandamus that he or she has reviewed
November 2008
When Appellees Don’t File a Brief
By Byron Henry on
Posted in Opinions & Judgments
The Amarillo Court of Appeals recently confronted an issue not addressed by the appellate rules. While Rule 38.8(a) applies in the event the appellant fails to file a brief, the rules are silent with respect to an appellee’s failure to do so. The Court weighed its options:
Appellees’ failure to file a brief leaves this
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Best (Little) Evidence Rule applies only to Texas documents. Really?
By Mike Northrup on
Posted in Opinions & Judgments
Here’s an interesting factoid you can make use of to amaze and astound your opposing counsel. The Best Evidence Rule, Texas Rule of Evidence 1002, applies only when the the originals are located in Texas. It’s true. It surprised me too.
Kerlin v. Arias, a per curiam opinion issued by the Texas Supreme Court…
Notice of appeal not required to name all orders
By Mike Northrup on
Posted in Opinions & Judgments
Following rendition of a final, appealable judgment, does a notice of appeal have to name all preceeding interlocutory orders as a prerequisite to complaining of those orders? Apparently not. This has been a question of concern for many appellate practitioners and it’s a question that’s been percolating around in the courts of appeals. We now…
Disqualification Requires Notice and Evidentiary Hearing
By Byron Henry on
Posted in Mandamus, Opinions & Judgments
The Corpus Christi Court of Appeals recently held that a respondent is entitled to notice and an evidentiary hearing before having its counsel disqualified. First, the court determined it had jurisdiction to issue a writ of mandamus against a presiding judge of a administrative judicial district because the judge was acting in the capacity of…
Notice Defect Precludes Summary Judgment
By David Oliveros on
Posted in Opinions & Judgments, Summary Judgment
In Shaw v. Radionic Industries, Inc., the plaintiff moved for summary judgment against the pro se defendant on a claim for a suit on a sworn account. The court set a hearing for the motion on April 2, 2007. Later, the plaintiff sent a transmittal letter dated March 22, 2007 to the defendant to…
Continuing Education Opportunities
By Mike Northrup on
Posted in News and Events
We want to announce some upcoming continuing education opportunities of interest to Appellate Practitioners.
The Dallas Bar Association, Appellate Law Section will have its monthly noon CLE on Thursday, November 20, 2008. The keynote speaker is David Horan of Jones Day who will speak about Federal Interlocutory appeals. Casey Kaplan of the K&L Gates firm will be the introductory speaker. The meeting will occur at the Belo Mansion in Dallas, Texas.
The Collin County Bar Association will meet at noon on Friday, November 21, 2008. The speaker will be Greg Lensing, Staff Attorney for the Dallas Court of Appeals, who will speak on Special Appearances and Personal Jurisdiction in Texas. The meeting will be held at Ralph & Kacoo’s on Central Expressway in Allen, Texas.
Other upcoming seminars for Appellate Practitioners are listed below:Continue Reading Continuing Education Opportunities
Bond Forfeiture Cases Are Criminal, Not Civil
By Byron Henry on
Posted in Opinions & Judgments
In a dispute over the assessment of costs on appeal, the Houston (First) Court of Appeals recently held that bond forfeiture cases are criminal as opposed to civil. Accordingly, the court redesignated the two appeals at issue as criminal cases with the abbreviation "CR." But for those hoping to avoid civil filing fees as a…
Judicial Estoppel vs. Judicial Admission
By Byron Henry on
Posted in Opinions & Judgments, Summary Judgment
The Beaumont Court of Appeals recently addressed the difference between judicial estoppel and a judicial admission. Plaintiff filed a claim with the EEOC and brought suit against defendant for gender discrimination. After her federal suit was dismissed, she sued the defendant in state court for unlawful termination based on her refusal to perform an illegal act. …
Enhancement of Attorney’s Fees Based on Extraordinary Results
By Byron Henry on
Posted in Opinions & Judgments
Howard Bashman over at How Appealing had a post yesterday regarding an Eleventh Circuit decision denying a petition for rehearing en banc on the issue of whether obtaining an extraordinary result justifies increasing attorney’s fees awarded under various federal statutes. The order denying rehearing en banc, with multiple dissents, can be found at this link. The orginal panel…