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

The Appellate Law and Family Law Sections of the Dallas Bar Association are hosting a luncheon to honor outgoing Fifth District Court of Appeals Chief Justice Linda Thomas.  The luncheon will be Wednesday, November 4, 2009, at Noon at the Belo Mansion.   Those desiring to attend should RSVP to Alicia Hernandez at the Dallas Bar Association.

The next meeting of the Appellate Law Section of the Dallas Bar Association is scheduled for Thursday, November 19, 2009, at Noon, at the Belo Mansion.  The scheduled speaker is Kendall Gray who will speak on the subject of "Being Excellent--More Ethics than You Require."  This presentation has been approved for 1 hour of ethics credit.

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At least since the Texas Supreme Court's 1994 opinion in Transportation Insurance Company v. Moriel, questions of the right to discovery of a defendant's net worth information, the definition of "net worth", and the scope of information relating to net worth have been simmering in the district courts and in the courts of appeals.  The latest opinion on the subject has been issued by the Fourteenth District Court of Appeals and the concurring opinion makes case for why it's time for the Texas Supreme Court to address these thorny issues.  The majority's opinion in In re Jacobs may be found here.  The concurring opinion may be found here.

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Governor Rick Perry appointed Justice Carolyn Wright to succeed Chief Justice Linda Thomas on the Fifth Court of Appeals at Dallas effective October 31, 2009.  Justice Wright will be the first African American to serve as chief justice of any intermediate appellate court in Texas.  The press release can be found here.

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The Amarillo Court of Appeals recently concluded that when a probate proceeding is filed in a court that does not have jurisdiction, a judgment from the court is void, rather than voidable.  In Winfield v. Pietsch, Dale Winfield, Gloria Johnson, and James Winfield filed suit in district court in Randall County seeking to challenge a Will executed by Jena Beth Winfield.  Karen Sue Pietsch filed a special exception to challenge the jurisdiction of the district court, but she never sought to have the proceedings dismissed on that basis.  Instead, she sought and obtained a summary judgment.  Dale Winfield, Gloria Johnson, and James Winfield then appealed.

On appeal, Pietsch sought dismissal on the ground that the district court was without subject-matter jurisdiction, which rendered the judgment void.  The court of appeals observed that Probate Code Section 5(c) vested jurisdiction in the county courts, rather than in district court over applications, petitions, and motions regarding probate or administration.  Accordingly, the court holds that the district court's judgment was void.  The court's opinion may be found here.

As a final note, I would point out that some courts of appeals have treated this probate code section as creating concurrent jurisdiction and creating dominant jurisdiction issues where there is more than one proceeding pending--such as where a prior estate administration has been opened.   This treatment appears to be a result of the Texas Supreme Court's opinion in Bailey v. Cherokee Cty. Appr. Dist., 862 S.W.2d 581 (Tex. 1993), which contains some confusing language.  Hopefully the supreme court will one day clarify its Bailey opinion.

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The Dallas Court of Appeals recently held that the major transaction exception to the prohibition on venue agreements only applies if the value of the transaction is contained in the agreement itself.  In this original proceeding, the parties entered into a settlement agreement involving real estate in which the parties agreed that venue of any dispute would be in Dallas County.  Plaintiff brought suit in Dallas County, the defendant moved to transfer to the county in which the property was located.  The plaintiff argued that venue in Dallas County was proper under section 15.020 of the Texas Civil Practice and Remedies Code because the transaction involved consideration of more than $1,000,000.  The Court disagreed and held that in order for section 15.020 to apply, the "agreement must contain the agregated stated value of the consideration."  Because the settlement agreement did not contain the amount, the trial court abused its discretion by denying the defendant's motion to transfer to the county of mandatory venue.  As a result, the Court granted the defendant's petition for writ of mandamus.  The Court of Appeals decision in In re Togs Energy, Inc. can be found at this link. 

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The Houston First District Court of Appeals has held that a trial court abused its discretion by denying the plaintiffs discovery of jurisdictional facts pertaining to the defendants' personal appearance.  In Lamar v. Poncon, John and Nanci Lamar sued Eric Poncon, Morgan's Rock Hacienda, and Ecolodge for negligence in causing injuries arising out of a car accident that occurred when the Lamars travelled to Nicaragua.  Morgan's Rock and Poncon filed special appearances to challenge the exercise of jurisdiction.

On three separate occasions, the Lamars moved for jurisdictional discovery, each time providing additional information as to what information they were seeking and why the jurisdictional discovery sought was needed.  Each time the trial court denied the request.   The trial court eventually sustained the special appearances, after which the Lamars appealed and complained of the rulings on their motions for discovery.

The court of appeals observes that Civil Procedure Rule 120a(3) governs jurisdictional discovery and under the rule, a party opposing a special appearance may have discovery into jurisdictional facts if it presents an affidavit that it cannot provide facts essential to justify its opposition to the special appearance.  The court held that a denial under this rule is governed by an abuse of discretion standard.  The court then recites all of the efforts the Lamars made to obtain the necessary information and concludes that the trial court abused its discretion by denying the jurisdictional discovery.  From a practitioner's standpoint, the court does not explain how the trial court's denial was a failure to follow guiding rules and principles or otherwise arbitrary.   Nor does the court indicate at what point (after the first motion, second motion or third motion, or all three), the denial of discovery constituted an abuse of discretion.

The court reverses an order granting the special appearance and remands the case to the trial court for further proceedings.  The court's opinion may be found here.

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What should you do if you show up for a bench trial and there is no court reporter?

The Fort Worth Court of Appeals recently decided an appeal raising this issue.  In Kohler v. M & M Truck Conversions, M & M contractually hired Kohler to install a wheelchair lift and related hydraulic equipment on a horse truck.  Kohler later sued M & M for failing to pay him for his work. 

The parties had a bench trial on the issues.  At trial, although there was not a court reporter present to make a record of the proceedings, neither party objected.  The court awarded Kohler minimal damages, but the court did not make, and neither party requested, any findings of fact or conclusions of law.

On appeal, Kohler complained that he was denied a court reporter at trial.  The Court of Appeals ruled that the trial court erred by failing to provide a court reporter, but Kohler failed to preserve error because he did not object at trial.  For proper preservation, Kohler should have objected at trial as soon as he realized there was not a court reporter.  Because Kohler did not object, the trial court did not have an opportunity to rule on the matter and correct it if possible.   As the error was not preserved, the court overruled the issue.

The opinion is here.

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The Amarillo Court of Appeals recently issue an opinion in In re Lagaite, in which the Court dismissed the petition for writ of mandamus for want of jurisdiction.  The petitioner complained of medical treatment he received while incarcerated in a Texas prison and evidently named the medical doctor as the respondent.  Noting that Texas Government Code Section 22.221(a) and (b) grant mandamus jurisdiction to protect an appellate court's jurisdiction or to issue writs against a district or county court judge, the court of appeals concluded it did not have jurisdiction.  The Court's opinion may be found here.

I had a similar issue come up in an appeal I handled many years ago and I recall that there were a few cases out there in which mandamus had issued against persons other than a district or county court judge and protection of the appellate court's jurisdiction was not in issue.  I would be interested in hearing from any of our readers whether they are familiar with other cases in which a court of appeals issued a writ of mandamus against someone other than a district or county judge and protection of the appellate court's jurisdiction was not in issue.

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