The United States Court of Appeals for the Fifth Circuit has reiterated the pleading standards applicable in federal court for securities fraud and for common-law fraud in Flaherty & Crimrine Preferred Income Fund Inc. v. TXU Corp.
Federal Rule of Civil Procedure 9(b) requires a pleader to state with particularity the circumstances constituting fraud or
The Beaumont Court of Appeals has held that the minimum amount in controversy necessary to invoke a district court’s jurisdiction is $201.00.
In Acreman v. Sharp, the trial court dismissed Plaintiff Acreman’s claims against an employee of the Texas Department of Criminal Justice because Acreman’s petition asserted that the value of the property he was complaining of was $400.00. The trial court concluded that the minimum amount in controversy to invoke a district court’s jurisdiction must exceed $500.00. Acreman appealed.
Continue Reading District Court Jurisdiction: Split of Authority
The Beaumont Court of Appeals has held that a contractual waiver of jury clause does not extend to non-contractual claims brought against non-signatory joint tortfeasors or alleged conspirators.
In In re Wild Oats Markets, Inc., Kuykendahl-WP Retail, L.L.P. ("Kuykendahl") had a lease agreement with Wild Oats Markets, Inc., which contained a contractual waiver-of-jury-trial clause.
This week the federal Fifth Circuit Court of Appeals issued an opinion in connection with a Petition for Leave to Appeal solely to remind district judges (and presumably practitioners) to demonstrate that the standards governing interlocutory appeals under 28 U.S.C. Section 1292(b) have been met.
Section 1292(b) requires that a district court should state when
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.Continue Reading Responsible Third Party Statute and Statutes of Repose
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."
Continue Reading Combining No-Evidence Motions for Summary Judgment with Traditional Motions
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.Continue Reading Wrongful Payment of Checks
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.Continue Reading Waiver of Special Appearances in Default Challenges
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
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.Continue Reading Eleventh Amendment Doesn’t Bar the Government from Suing a State