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
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Application of TAA Necessarily Excludes FAA
By Byron Henry on
Posted in Opinions & Judgments
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…
Get Written Ruling on Objections to Summary Judgment Evidence
By Byron Henry on
Posted in Opinions & Judgments
The Waco Court of Appeals recently held, once again, that parties should obtain written orders on objections to summary judgment evidence in order to preserve error for review on appeal. The Court went on to analyze when rulings are implicit and held that while rulings can be inferred, they can only be inferred from the record…
Reduce Damages Under CPRC 33.012 Before Applying Recovery Limitation in CPRC 41.0105
By Byron Henry on
Posted in Opinions & Judgments
In what appears to be a case of first impression, the Dallas Court of Appeals held that sections 33.012(a) and 41.0105 of the Civil Practice and Remedies Code should be harmonized by applying section 33.012(a)’s "damage" reduction before section 41.0105’s "recovery" limitation. In an opinion by Justice Moseley, the Court reasoned that because section 33.012(a) applies to the assessment of damages…
Chapter 74 Statute of Limitations Trumps Chapter 33 Extension
By Byron Henry on
Posted in Opinions & Judgments
The San Antonio Court of Appeals recently held that the two-year statute of limitations for health care liability claims in section 74.251 of the Civil Practice and Remedies Code cannot be extended by any other law, including section 33.004(e). The Court focused on the unambiguous language of section 74.251 that the two-year statute applies "notwithstanding…
Dissents and Stare Decisis
By Byron Henry on
Posted in Opinions & Judgments
"A dissent does many things—it pinpoints perceived faults in the Court’s opinion, it speaks to a future Court, it may suggest a legislative fix—but it is not the law." In his dissenting opinion, Chief Justice Jefferson argues that stare decisis mandates that the majority not adopt his dissent in a previous case.
Six years ago…
“Requests for Admission Are A Tool, Not A Trapdoor”
By Byron Henry on
Posted in Opinions & Judgments
In a 6-3 opinion, the Texas Supreme Court held that requests for admissions sent to an insurance carrier in one capacity cannot be used against it in different capacity. USF&G appeared in two capacities represented by two different law firms–as a defendant to the insured’s claim under the underinsured motorist policy and as subrogee to…
Abatement vs Dismissal: Split of Authority?
By Byron Henry on
Posted in Opinions & Judgments
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
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CPRC 12.002 Requires Evidence of Intent to Cause Harm at Time of Filing
By Byron Henry on
Posted in Opinions & Judgments
The Dallas Court of Appeals recently held that CPRC 12.002 prohibiting use of a fraudulent court record or lien requires evidence of intent to cause harm at the time of filing the alleged fraudulent record or lien.
In this case, the Plaintiff argued that Defendant’s (an attorney) knowledge of lien law satisfied the knowledge element; and "common knowledge" that…
Lack of Consideration ≠ Failure of Consideration
By Byron Henry on
Posted in Opinions & Judgments
In an otherwise lengthy opinion, the Fort Worth Court of Appeals provided a reminder to civil practitioners regarding the difference between failure of consideration and lack of consideration. The Court noted:
[L]ack of consideration refers to a contract that lacks mutuality of obligation. Failure of consideration, however, occurs when, due to a supervening cause after
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