The Austin Court of Appeals has held that a court of appeals judgment that affirms the trial court's judgment is the equivalent of a judgment rendered against the appellants. In Kleas v. BMC West Corp., the Court construes TRAP 43.5 regarding judgments against sureties and holds that its judgment affirming the trial court's judgment is the same as a judgment against the appellants. The Court's supplemental opinion may be found at this link.
After reading Combs v. Kaufman County, I can't help but wonder if there is something missing from the Court's opinion or if the opinion contains an error. Nontheless, I was surprised to learn about a rarely-invoked provision of the Texas Constitution that allows parties to a suit to pick their own judge.
Article V, Section 16 of the Texas Constitution provides that when the judge of a county court is disqualified, "the parties interested may, by consent, appoint a proper person to try said case." In Combs, the presiding judge of the Kaufman County Constitutional Court apparently disqualified herself from hearing a guardianship for Wallace Darst. [Note, the opinion uses the term "recused," which has a different legal meaning, but from the facts, it appears the Court meant to use the term "disqualified"]. The parties subsequently asked Judge Glen Ashworth, who was then district judge for the 86th Judicial District Court, to preside over the guardianship. Here, the opinion is somewhat confusing or inconsistent as to whether Judge Ashworth merely presided as judge for the constitutional county court or whether the case was treated as having been transferred to the 86th District Court, with Judge Ashworth presiding as judge of that court. Judge Ashworth subsequently awarded the guardian (Combs) a fee of $143,168.95 and that order was not appealed.
Continue Reading...The Dallas Court of Appeals recently had an opportunity to review and apply the mootness doctrine with respect to appeals and, in the process, expound on the rarely invoked exception to mootness known as "capable of repetition, yet evading review" (CORYER). In this case, the Plaintiff sought a temporary injunction and declaratory judgment that Duncanville's ordinance prohibiting the operation of Plaintiff's "sex club," known as the Cherry Pit, as a public nuisance. The trial court denied Plaintiff's request for a temporary injunction and the Plaintiff filed an interlocutory appeal. While the case was on appeal, Duncanville repealed and amended the challenged ordinance. Duncanville moved to dismiss the appeal because it was moot.
The Court first addressed mootness generally by stating that "a case on appeal is moot if: (1) there are no live controversies between the parties; and (2) any decision rendered by the appellate court would be an advisory opinion." The Plaintiff argued that his case fell into the exception to mootness known as CORYER. The Court rejected this argument and held that:
"This exception only applies in rare circumstances . . . . It is limited to situations where the following circumstances are simultaneously present: (1) the challenged action was in its duration too short to be litigated prior to its cessation or expiration, or the party cannot obtain review before the issue becomes moot; and (2) there is a reasonable expectation that the same complaining party would be subject to the same action again."
Because there was "no reasonable expectation" that Plaintiff would "suffer the same alleged wrong" by enforcement of the repealed ordinance and would have "ample time to obtain judicial review" of the new ordinance, the Court held that the CORYER exception did not apply and dismissed the appeal as moot. The Court's opinion in Trulock v. CIty of Duncanville can be found at this link.
Under Rule 28, is pleading the name of a popular location where a business is located sufficient to name an entity?
This was the issue in Seidler v. Morgan, a recent Texarkana Court of Appeals case.
While vacationing at Fish Creek Ranch located in Dolores, CO, the plaintiff fell from a horse and dislocated her hip. A day before the limitations ran, the plaintiff sued James A. Morgan, Morgan Land and Cattle Partners, Ltd., each doing business as Fish Creek Ranch to recover for her injuries.
Both Morgan and Morgan Land argued on summary judgment that they were not liable because they purchased the business from Kelly Enterprises, Inc. after the plaintiff's injury occurred. They further explained that Fish Creek Ranch was the name of a place and not the name of their business.
The plaintiff argued in her response that, according to Rule 28 of the Texas Rules of Civil Procedure, by naming Fish Creek Ranch as the assumed name of a business entity, she adequately named whatever entity was responsible for her injury.
Did the plaintiff adequately name a defendant under Rule 28?
No. According to the court of appeals, under Rule 28, a plaintiff must show that the named entity is in fact doing business under the common name pleaded in the petition. The court held that "simply because a place name may be commonly and informally used does not mean that the type of business conducted there is 'doing business as'" the name of the site. Here, Fish Creek Ranch was an actual place. The evidence showed that the defendants did not conduct any business under the Fish Creek Ranch name. Thus, summary judgment was appropriate.
Read the entire opinion here.
There are some interesting developments working their way through the legislature and the Supreme Court Advisory Committee that relate to the conduct of jurors. Senate Bill 445, sponsored by Senator Wentworth, and proposed Texas Rule of Civil Procedure 265.1 would allow jurors to submit questions to witnesses during trial.
The proposed Senate Bill would allow jurors to take notes during trial and require the courts to provide materials to jurors on which to take those notes. In addition, it would require the Texas Supreme Court to adopt a rule that would allow (1) jurors to submit questions for witnesses anonymously; (2) counsel to object to questions out of the presence of the jury; (3) witnesses to be recalled to the stand to answer a question in open court; (4) an opportunity for cross-examination in response to a juror question; and (5) limitation upon questions "for good cause." The Senate Bill has had its first reading and is currently pending before the Senate Jurisprudence Committee.
Proposed Rule 265.1 calls for an instruction to be read by the judge to the jurors at the beginning of trial advising of the right to ask questions and a form would be provided to jurors upon which questions could be submitted. The parties would be allowed to object and the court would have the discretion to reword the question. Parties would be allowed to ask follow up questions. Any question submitted would become part of the record. This proposed rule is on the SCAC's agenda for discussion at its meeting today, February 20, 2009.
Continue Reading...I ran across this interesting opinion from the Federal Third Circuit Court of Appeals. I am reporting on it because the Fifth Circuit apparently has not yet commented on this damage recovery and the issue could impact Texas state law.
In Eshelman v. Agere Systems, Inc., No. 05-4895, the Third Circuit Court of Appeals holds that a plaintiff in a disability discrimination case may recover an additional sum of money to pay for taxes that the plaintiff might be subject to as a result of receiving an award for back pay. Back pay awards are taxable in the year paid. To the extent such an award might push the plaintiff into a higher tax bracket causing the plaintiff to pay additional taxes, the Court holds that the plaintiff can recover an additional sum to compensate her for that additional tax burden. In arriving at this result, the Court joins the Tenth Circuit in that result. The District of Columbia Circuit reached a contrary result.
As part of its reasoning, the Third Circuit Court observes that the Americans with Disabilities Act gives the courts broad equitable powers to effectuate the purpose of making the plaintiff whole. This reasoning may be critical to the Court's logic and to its power to fashion this remedy. Given that the Texas Commission on Human Rights Act is largely patterned after federal law, it is conceivable that a similar argument might find its way into Texas courtrooms. The opinion may be found at this link.
The Houston Fourteenth District Court of Appeals recently held that the Property Owner Rule applies to corporate owners. The Property Owner Rule is the rule of law that allows a property owner who is familiar with the market value of his property to testify regarding the market value, even if he is not qualified as (or designated as) an expert.
In Speedy Stop Food Stores, Ltd. v. Reid Road Municipal Util. Dist. No. 2, Justice Kem Frost, writing for the majority, observes that the Texas Supreme Court has not addressed the issue of whether a corporate owner may attest to the market value of its property and the courts of appeals are split on the issue. The majority opinion asserts that the Waco and Corpus Christi appellate courts permit corporate owners to testify to market value, while Fort Worth does not. The Houston Fourteenth Court of Appeals holds that the Property Owner Rule applies to corporate entities where there is a representative familiar with the market value of the property. The majority opinion may be found at this link.
Justice Seymore writes a dissent asserting that existing Texas Supreme Court law controls and argues that a corporate representative is not the "owner." The dissent further challenges the majority's characterizations of the Corpus Christi and Waco opinions on the subject matter. The dissent maybe found at this link.
Given the dissenting opinion, an argued conflict among the courts of appeals, and the lack of a clearly dispositive opinion from the Texas Supreme Court, this case may bear following should a petition for review be filed.
A court appointing a receiver has exclusive jurisdiction over property subject to the receivership. When does the court's exclusive jurisdiction end? The court must either relinquish its jurisdiction or order the receiver to restore the property to those entitled to it.
Proper relinquishment of exclusive jurisdiction was the main issue of a recent San Antonio Court of Appeals case: Chimp Haven, Inc. v. Primarily Primates, Inc. You can read the opinion here.
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The Dallas Bar Appellate Law Section has its next monthly meeting on Thursday, February 19th, at noon at the Belo Mansion. The section will host Fifth Circuit Judge Katarina Haynes and Dallas Court of Appeals Justice Mary Murphy to discuss their experiences so far on their respective appellate courts.
Later that same day, the Collin County Bar Appellate Section is hosting a happy hour in honor of Justice Mary Murphy. This event will be at Fireside Pies in Plano at Legacy and the Dallas North Tollway from 5:30pm to 7:00pm.
As some of you may already know, this year America is celebrating the bicentennial of Abraham Lincoln's birth.
To that end, the Writer's Studio/Writer's Garret is sponsering a free event. Come hear historian James McPherson discuss Tried by War: Abraham Lincoln as Commander in Chief, a celebration and tribute to the life of Abraham Lincoln.
The event is Scheduled for Wednesday, February 11, 2009 at noon at Theatre Three located at 2800 Routh Street, #168, Dallas, Texas, 75201.
James McPherson is a noted American Civil War historian and author. He wrote the Pulitzer Prize winning Battle Cry of Freedom.
Void orders of a trial court may occur in a number of different circumstances. The Corpus Christi Court of Appeals discusses one such circumstance in Silguero v. State.
The trial court dismissed the State's action for forfeiture for want of prosecution and the State timely filed a motion to reinstate, but the motion was not verified. More than 30 days after the dismissal, the trial court granted the motion to reinstate. The trial court subsequently rendered a judgment of forfeiture and the Silgueros filed an appeal as well as a petition for writ of mandamus, each asserting that the trial court's order of reinstatement was void.
Continue Reading...Urban Television Network Corp. v. Creditor Liquidity Solutions, L.P., No. 05-07-01629-CV.
Westar Satellite Services, L.P. and Urban Television Network Corporation entered into a five year services agreement. The agreement contained a liquidated damages clause. After two years, Urban Television defaulted on its obligations and Westar sued to enforce the liquidated damages clause.
Urban Television tried to invalidate the liquidated damages clause by claiming it was an unenforceable penalty. A line of cases starting in the 1970’s allowed parties to invalidate liquidated damage clauses if they applied equally to the breach of trivial clauses as well as material clauses. Thus, attorneys now search a contract for any minor promise that could potentially trigger liquidated damages in hopes of declaring the provision a penalty.
The usual target of these searches is a provision usually found in contracts that provides for termination for basically any promise made in the contract. These general provisions are put in contracts to protect the drafting attorney from inadvertently failing to specify an important promise that could trigger liquidated damages. However, such provisions are so all-encompassing that any minor promise in the contract could be construed to trigger liquidated damages. Thus, attorneys would get rulings invalidating the clauses where they could find broad termination clauses that would include minor promises.
In this case, the Westar contract avoided such a problem by inserting “material” into the termination clause so as to read ‘either party fails to perform or observe any material term or obligation…” (Emphasis added). By adding “material,” the termination clause excluded any trivial promises that may have been in the contract. That key distinction made the liquidated damages provision enforceable and allowed Westar to win summary judgment in the trial court and affirm that judgment on appeal.
The opinion can be read here.
The Dallas Court of Appeals recently held that a provision calling for application of the Texas General Arbitration Act necessarily excludes application of the Federal Arbitration Act. First, the Court held that because the motion to abate was made under the FAA, the Court had jurisdiction to review the trial court's order by mandamus. Next, the Court acknowledged the Texas Supreme Court's test that a general choice of law clause will not be read to exclude federal law unless the clause "specifically excludes the application of federal law." Third, the Court acknowledged that the FAA generally controls transactions involving interstate commerce. Lastly, the Court held that the parties excluded application of federal law by agreeing that the Texas General Arbitration Act applied. The Court noted that a general choice of law provision does not specifically exclude federal law because "the FAA was part of the substantive law of Texas." Nevertheless, by naming the Texas Act, the parties excluded the FAA. The Court's opinion in In re Olshan Foundation Repair Co., L.L.C. can be found at this link.
On Wednesday, February 11, 2009, Chief Justice Wallace Jefferson will deliver the State of the Judiciary address in the House Chamber in the State Capitol. Often the State of the Judiciary address lays out a theme and what the Judiciary hopes to obtain from the legislature in the way of funding or legislation during the particular legislative term, so the speech will be worth following to see what priorities the Chief lays out.
In probate proceedings it is not always clear when the court has rendered an appealable order. Probate proceedings can produce multiple final, appealable orders. The San Antonio Court of Appeals recently addressed one of those circumstances in In re Guardianship of Glasser.
In Glasser, the Probate Court appointed litigation counsel to help an Attorney Ad Litem in a guardianship proceeding. The court's appointment order approved employment of litigation counsel and ordered that costs associated with the representation would be paid by the estate after being presented to the court and approved. The court subsequently signed two orders approving fees and a final order at the conclusion of the proceeding approving fees and discharging the attorney ad litem and the litigation counsel. The temporary guardian appealed the fee orders and the ad litem and litigation counsel sought dismissal, contending that the appeal was untimely because the court's initial orders of appointment and approval of fees were final, appealable orders at the time they were signed.
The Court of Appeals disagreed, noting that the order of appointment simply set the stage for what followed and did not resolve a particular phase of the case. The parties and the court understood and intended that there would be interim fee awards and that all awards were subject to a final hearing. Accordingly, the interim orders were not final and appealable.
Continue Reading...The Houston Fourteenth District Court of Appeals has held that a party may recover attorney's fees that were incurred by another party prior to the date the first party was served in the lawsuit. In Clearview Properties, L.P. v. Property Texas SC One Corp., Clearview had litigated claims against Defendant Triple Net and others. Later, as the discovery period was nearing completion, Clearview joined Defendant TRL, which retained the same attorney as Triple Net. The trial court allowed TRL to recover attorney's fees that Triple Net incurred prior to the time TRL was joined and Clearview complained on appeal.
The court of appeals overruled Clearview's complaint regarding TRI's recovery of fees Triple Net incurred. The Court reasoned that TRL benefitted from some of the discovery work product and other work its counsel had already done for Triple Net, which saved on the need to conduct additional discovery, etc. for TRL. The Court held that this result is supported by the Supreme Court's opinion in Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299 (Tex. 2006).
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