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

Ever wonder what it takes to get an Appellant's appeal dismissed?  The Dallas Court of Appeals has given us the answer in at least two circumstances, one involving defective briefing and one involving a failure to make arrangements to pay for an appellate record.

In Bridwell v. McMillin, the Court granted what appears to be a 60-day extension of time to file an Appellant's Brief.  Later, the Court granted a second extension of time to file the Appellant's Brief--this time for 30 days.  The Appellant filed his Appellant's Brief 9 days early, but it contained a number of briefing deficiencies.  The Court ordered the Appellant to correct the briefing deficiencies within 10 days or his appeal would be dismissed.  By letter, the Appellant requested that the Court treat his defective brief as his amended brief--in effect refusing to correct the deficiencies.  In response, the Appellee moved to dismiss the appeal for non-compliance with the Court's order.  The Court granted the motion to dismiss.  The Court's Memorandum Opinion in Bridwell can be found at this link.

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In an interesting opinion regarding dominant/servient jurisdiction and abatement, the Houston (First) Court of Appeals made this observation regarding the proper relief on a motion to abate:

Generally, the proper relief on a motion to abate on the ground of dominant jurisdiction is abatement.   . . . However, there is also authority that that if a party files a plea in abatement . . . the subsequent case must be dismissed.  The Texas Supreme Court has noted the split in authority , but has not resolved it.

Here, the trial court dismissed the case, but the court of appeals did not have to address the proper remedy because the plaintiff did not challenge the dismissal.

I wonder whether this quandry can be resolved by analyzing whether the claims asserted in the subsequent lawuit can and should have been asserted in the first suit.  In other words, the answer may depend on whether res judicata would apply in the subsequent lawuit.  If so, then dismissal may be proper if for no other reason than to require the plaintiff to bring the claims in one suit.  The court of appeals' opinion in French v. Gilbert can be found at this link.

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In a longstanding dispute over which agency has the authority to regulate engineers, the Austin Court of Appeals recently held that the Texas Society of Professional Engineers (Society) lacked standing to bring suit against the Texas Board of Architectural Examiners (Board) on behalf of its members because it failed to meet the test for associational standing.  The court of appeals applied the test set forth by the Texas Supreme Court in Texas Association of Business v. Texas Air Control Board:

[A]n association has standing to sue on behalf of its members when (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Because the Society failed the third prong, the court of appeals affirmed the trial court's dismissal for lack of standing.  The court of appeals' opinion in Texas Society of Professional Engineers v. Texas Board of Architectural Examiners can be found at this link.

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A divided panel of the Amarillo Court of Appeals held that a dismissal with prejudice operates as an adjudication on the merits for purposes of res judicata even if the trial court erred by including the phrase "with prejudice" in the dismissal order.  The majority followed Amarillo precedent while the dissent called for it to be overruled.  Because the Amarillo court has only four justices, it is unlikely that the dissent could muster the three votes necessary to overturn the controlling precedent en banc.  The majority opinion in Rodriguez v. ICON Benefit Administrators, Inc. can be found at this link.  Justice Pirtle's dissenting opinion can be found at this link.

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