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

I've wanted to write something about Boenig v. Starnair, Inc. since I first read it because I believe the analysis is incorrect. 

This case involves the intersection of the responsible third party statute and a statute of repose.

Boenig sued contractor Pulte in November 2005 for injuries she allegedly sustained when she fell through the attic floor of a home Pulte built.  On July 19, 2007, Pulte filed a motion for leave to designate Starnair as a responsible third party.  Starnair was a subcontractor that performed the heating, ventilation, and air conditioning installation in the home.  On August 23, 2007, Boenig filed her fourth amended petition in which she joined Starnair as a defendant.

Starnair moved for summary judgment in reliance upon the ten-year statute of repose set out in Civil Practice and Remedies Code Section 16.009.  The trial court granted the motion and Boenig appealed.

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Can the non-movant in a summary judgment context use the movant's evidence (attached to support a traditional motion for summary judgment) to challenge no-evidence grounds for summary judgment on appeal?

According to the El Paso Court of Appeals, the answer is "no." 

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The Dallas Court of Appeals' opinion in In re Berry leaves more questions than answers.

This is an appeal from probate court action in which Sue Berry brought suit against Comerica, H&R Block, Washington Mutual Bank and the executrix of Eugene Berry's estate for wrongful payment of checks.  Comerica filed a motion for summary judgment contending that the claims against it were barred because Ms. Berry did not report the unauthorized signatures within one year after the statement or items were made available to her, as required by Section 4.406(f) of the Texas Business and Commerce Code.  The trial court granted Comerica's motion for summary judgment and all other claims were dismissed without prejudice.  Ms. Berry appealed the summary judgment.

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The San Antonio Court of Appeals has held that a party challenging a default judgment may well risk losing the opportunity to challenge the exercise of personal jurisdiction over him unless special precautions are taken.

In Boyd v. Kobierowski, Kobierowski, a Texas resident, sued Boyd, a California resident, in Texas for breach of contract, fraud, misrepresentation and DTPA violations.  All causes of action arose from the sale of a vehicle  Boyd sold to Kobierowski. 

Boyd did not answer the suit and Kobierowski took a default judgment against Boyd.  Boyd subsequently filed a restricted appeal to challenge the default judgment.  He prevailed on appeal because of a defect in personal service.  See Appeal No. 04-06-0041-CV. 

On remand, Kobierowski repeatedly tried to get Boyd to answer the suit, but Boyd did not respond.  Kobierowski then took a second default judgment.  Boyd subsequently filed a special appearance and a motion for new trial subject to the special appearance.  The trial court denied the special appearance, but granted the motion for new trial.  In a second (interlocutory) appeal, Boyd argued that it was error to deny his special appearance.

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Apparently the Dallas Court of Appeals is Pro-choice.  At least when it comes to a Plaintiff's choice of forums.

In Signature Management Team, LLC v. Quixtar, Inc., the Dallas Court of Appeals determined that the trial court abused its discretion when it dismissed a case under the doctrine of forum non conveniens even though some substantive and probative evidence existed to support the court's decision.

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The Dallas Bar Association, Appellate Law Section will have its regular monthly meeting on Thursday, March 19, 2009, at noon at the Belo Mansion.  The keynote speakers this month are Jennifer Trulock and Kathy Schatz of Baker Botts who will be speaking on employment law appeals.  This is good for one hour of CLE credit.

James Ho will speak to the Tarrant County Appellate Section on April 21, 2009, at noon at the Petroleum Club, about the Office of Solicitor General.  For more information about that event, go to this link.

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The simple answer is yes, they do. See Texas Rule of Civil Procedure 162.

But the defendant's pleading must allege a cause of action independent of the plaintiff's claims on which the defendant can recover.  If a defendant fails to do so, then the plaintiff has an absolute right to a non-suit of all claims, as the Dallas Court of Appeals demonstrated in In re Metropolitan Lloyds Insurance Company of Texas.

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The Tyler Court of Appeals recently held that evidence of medical expenses billed by medical providers is legally insufficient evidence of the amount of expenses "actually paid or incurred."  Plaintiff sued the defendant for injuries sustained in an auto accident.  Prior to trial, the plaintiff filed a motion to exclude any evidence of reductions, insurance payments, or other "evidence of collateral sources."  At trial, the plaintiff introduced evidence of medical expenses billed by medical providers in the amount of $110,069.12.  The defendant was not allowed to rebut this evidence with evidence of reductions even though it was undisputed that the amount of expenses actually paid after reductions was $14,482.02.  The jury found for plaintiff and awarded damages in the full amount requested by the plaintiff.  The defendant moved for jnov arguing the plaintiff had offered no evidence on the correct measure of damages.  The trial court denied defendant's motion and entered judgment on the jury's verdict. 

On appeal, the court held that CPRC sec. 41.0105 "not only limits the amount of damages recoverable, but also affects the relevance of evidence offered to prove damages."  The court further held that medical bills reflecting only the amount "initially incurred" are irrelevant and should be excluded at trial.  Consequently, the court held that the improperly admitted medical bills were legally insufficient evidence of the amount actually paid or incurred by the plaintiff.  However, because the medical bills constituted more than a scintilla of evidence to support at least some of the damages and the amount actually incurred was undisputed, the court suggested a remittitur in the proper amount amount of damages.  The court's opinion in Escabedo v. Haygood can be found at this link.

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The Houston Court of Appeals (14th) recently held that a party may not avoid exclusion of an undisclosed expert by simply calling the witness to rebut previous testimony.  Appellee failed to timely disclose an expert.  The trial court allowed the expert to testify at trial over appellant's objection.  On appeal, the appellant argued that the witness should have been excluded pursuant to TRCP 193.6 because he was not designated timely.  The appellee argued the witness was only called to rebut appellant's expert testimony.  The court of appeals held that although a party need not designate a rebuttal or impeachment witness whose testimony could not reasonably be anticipated before trial, the expert's testimony went to damages that were "a focal point of the lawsuit."  The Court held the witness' testimony could have been anticipated and, thus, the witness should have been disclosed.

Next the court of appeals considered whether the admission of the expert testimony was harmful error.  Because there was no other evidence on the issue, the Court held that the evidence was not cumulative, and the admission probably resulted in an improper judgment.   Accordingly, the court of appeals court reversed the award of damages and remanded the case for a retrial of damages only.  The court of appeals opinion in Jurek v. Herauf can be found at this link. 

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If the Eleventh Amendment to the U.S. Constitution bars your suit against a State, maybe the U.S. Government can bring the suit for you.  That's what happened in EEOC v. Board of Supervisors for the University of Louisiana System. 

Dr. Van McGraw initially filed an age discrimination suit against the University of Louisiana System ("ULS"), after ULS implemented a new policy prohibiting the re-employment of retirees on a regular full-time basis.  McGraw was ultimately unsuccessful.

After McGraw unsuccessfully attempted to be rehired by ULS as an associate dean or as a professor, he filed a discrimination charge with the EEOC.  The EEOC took up his claim and filed an action against ULS seeking injunctive relief and relief for the benefit of McGraw.  ULS filed a motion for summary judgment and a motion to dismiss, arguing that the Eleventh Amendment barred the proceedings.  After the district court denied the motions, ULS filed an interlocutory appeal.

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Assume a foreign insurance company provides auto insurance cards that specifically cover accidents both in the home country and the United States.  If a car accident occurs in Texas, can the insurer avoid personal jurisdiction in the suit by alleging that it did not purposefully avail itself to Texas?

This was the issue before the Dallas Court of Appeals in Assurances Generales Banque Nationale v. Dhalla.

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The Houston First District Court of Appeals has held that an order for temporary injunction must be supported by pleading.

In Easton v. Brasch, the Eastons filed suit against Brasch and filed pleadings for a temporary restraining order, a temporary injunction, and a permanent injunction.  After a hearing on the temporary injunction, the trial court rendered a mutual injunction that was binding on both Michael Easton and Brian Brasch.  The Eastons filed an interlocutory appeal and complained that the trial court had abused its discretion because the injunction in favor of Brasch was not supported by a pleading verified by affidavit.  The appellate court agreed, noting that Civil Procedure Rule 682 requires the existence of a pleading verified by affidavit.  The Court's opinion may be found here.

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