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

The Dallas Court of Appeals has explained how to submit jury questions for negligence of employees for whose conduct employers may be held vicariously liable.

 In Janga v. Colombrito, two defendant doctors appealed an adverse jury verdict and complained that the trial court had not submitted the liability of two nurses as part of the liability question.  The appellate court first had to decide whether the nurses were "settling persons" under Chapter 33 of the Civil Practice and Remedies Code.  The court held that the nurses were settling persons.  Even though the nurses did not themselves pay money, their employer--the hospital--did pay money on their behalf and the nurses were parties to a settlement agreement whereby they were dismissed from the case.  The hospital would have had vicarious liability for the nurses' alleged negligence.

Next, the court examined the record to determine if there was some evidence of the nurses' negligence and concluded that there was some evidence.  Thus, the court held that it was error to omit them from the list of parties whose negligence should have been decided by the jury.  Noting that when there is a respondeat superior claim submitted, the individual employee defendant's negligence is submitted, rather than that of the employer.  The court concluded there is no reason to treat settling employees any differently.  Finally, the court rejected the argument that the jury had disregarded the jury questionnaire and assessed liability on the hospital for the nurses' conduct along with direct liability to the hospital.  The court must presume that the jury followed the trial court's written instructions.  The court's opinion may be found here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Fort Worth Court of Appeals recently held that it was error for a trial court to order that an attorney not file a notice of appeal until his client directed him to do so.  After trial, Relator's counsel sought to have appellate counsel substiuted in for any possible appeal.  The Texas Department of Protective and Regulatory Services (Department) opposed the request and argued that no appellate counsel should be appointed, and no notice of appeal should be filed, until Relator expressed his desire to appeal.  The trial court signed an order denying the substitution and prohibiting counsel from filing a notice of appeal unless Relator so directed.  Relator sought mandamus relief and argued that whether counsel has authority from a client to file a notice of appeal is an issue for the appellate court regarding its jurisdiction.  The court of appeals agreed, holding that "to the extent there is a factual dispute concerning the lawyer's authority to file a notice of appeal, the dispute must be resolved by the court of appeals . . . ."  The court also held that "[t]he trial court does not, however, have the authority to interfere with our jurisdiction by prohibiting a party from filing a notice of appeal."  Accordingly, the court granted the petition and ordered the trial court to vacate its order prohibiting the filing of a notice of appeal.  The court's opinion in In re J.R.J. can be found at this link.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Dallas Court of Appeals has held that Appellate Rule 24.3(a)(3) cannot be invoked to allow an Appellee to provide a "reverse supersedeas bond" when doing so denies an Appellant its appeal.

In Hydroscience Technologies Inc. v. Hydroscience Inc., Hydroscience, Inc. obtained a declaratory judgment declaring that it owned shares of preferred stock in Hydroscience Technologies and giving it a right to examine Hydroscience Technologies' company books.  Hydroscience Technologies appealed this judgment.  The trial court denied Hydroscience Technologies the right to supersede the judgment and allowed Hydroscience Inc. to post a "reverse supersedeas" bond in the amount of $10,000 so as to allow Hydroscience Inc. to examine the company books while the judgment was on appeal.  Hydroscience Technologies filed a motion with the court of appeals to review the trial court's denial of its supersedeas request.

After pointing out that Hydroscience Technologies was appealing the trial court's judgment that granted the right to inspect its company books, the court of appeals noted that once Hydroscience Inc. is allowed to inspect the books pursuant to the supersedeas order, then the damage to the right to an effective appeal has been done.  The court held that Rule 24.3(a)(3)'s "reverse supersedeas" provision does not give the trial court discretion to deny an Appellant its appeal.  The court's opinion may be found here. 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The Amarillo Court of Appeals dismissed a Petition for Writ of Mandamus against a justice of the peace because a court of appeals does not have jurisdiction to issue a writ of mandamus against a justice of the peace.

In In re Smith, the relators sought a writ of mandamus against a justice of the peace in Floyd County, Texas to order the JP to set a case for a jury trial and to enforce a Rule 11 Agreement and for other assorted requests.  The court of appeals noted that its power to issue writs is derived from the constitution and from statute and neither of those authorities afford jurisdiction to issue a writ of mandamus against a justice of the peace.  Accordingly, the court dismissed the petition for writ of mandamus for lack of jurisdiction.  The court's opinion may be found here.

• Email This
• Print
• Comments
• Trackbacks
• Share Link