The Houston First District Court of Appeals has held that an order for temporary injunction must be supported by pleading.
In Easton v. Brasch, the Eastons filed suit against Brasch and filed pleadings for a temporary restraining order, a temporary injunction, and a permanent injunction. After a hearing on the temporary injunction, the trial
The Austin Court of Appeals has held that a court of appeals judgment that affirms the trial court’s judgment is the equivalent of a judgment rendered against the appellants. In Kleas v. BMC West Corp., the Court construes TRAP 43.5 regarding judgments against sureties and holds that its judgment affirming the trial court’s judgment
After reading Combs v. Kaufman County, I can’t help but wonder if there is something missing from the Court’s opinion or if the opinion contains an error. Nontheless, I was surprised to learn about a rarely-invoked provision of the Texas Constitution that allows parties to a suit to pick their own judge.
Article V, Section 16 of the Texas Constitution provides that when the judge of a county court is disqualified, "the parties interested may, by consent, appoint a proper person to try said case." In Combs, the presiding judge of the Kaufman County Constitutional Court apparently disqualified herself from hearing a guardianship for Wallace Darst. [Note, the opinion uses the term "recused," which has a different legal meaning, but from the facts, it appears the Court meant to use the term "disqualified"]. The parties subsequently asked Judge Glen Ashworth, who was then district judge for the 86th Judicial District Court, to preside over the guardianship. Here, the opinion is somewhat confusing or inconsistent as to whether Judge Ashworth merely presided as judge for the constitutional county court or whether the case was treated as having been transferred to the 86th District Court, with Judge Ashworth presiding as judge of that court. Judge Ashworth subsequently awarded the guardian (Combs) a fee of $143,168.95 and that order was not appealed.Continue Reading Subject-matter Jurisdiction and Consent
There are some interesting developments working their way through the legislature and the Supreme Court Advisory Committee that relate to the conduct of jurors. Senate Bill 445, sponsored by Senator Wentworth, and proposed Texas Rule of Civil Procedure 265.1 would allow jurors to submit questions to witnesses during trial.
The proposed Senate Bill would allow jurors to take notes during trial and require the courts to provide materials to jurors on which to take those notes. In addition, it would require the Texas Supreme Court to adopt a rule that would allow (1) jurors to submit questions for witnesses anonymously; (2) counsel to object to questions out of the presence of the jury; (3) witnesses to be recalled to the stand to answer a question in open court; (4) an opportunity for cross-examination in response to a juror question; and (5) limitation upon questions "for good cause." The Senate Bill has had its first reading and is currently pending before the Senate Jurisprudence Committee.
Proposed Rule 265.1 calls for an instruction to be read by the judge to the jurors at the beginning of trial advising of the right to ask questions and a form would be provided to jurors upon which questions could be submitted. The parties would be allowed to object and the court would have the discretion to reword the question. Parties would be allowed to ask follow up questions. Any question submitted would become part of the record. This proposed rule is on the SCAC’s agenda for discussion at its meeting today, February 20, 2009.Continue Reading Proposals to Allow Jurors to Take Notes and Question Witnesses
I ran across this interesting opinion from the Federal Third Circuit Court of Appeals. I am reporting on it because the Fifth Circuit apparently has not yet commented on this damage recovery and the issue could impact Texas state law.
In Eshelman v. Agere Systems, Inc., No. 05-4895, the Third Circuit Court of Appeals holds
The Houston Fourteenth District Court of Appeals recently held that the Property Owner Rule applies to corporate owners. The Property Owner Rule is the rule of law that allows a property owner who is familiar with the market value of his property to testify regarding the market value, even if he is not qualified as
The Dallas Bar Appellate Law Section has its next monthly meeting on Thursday, February 19th, at noon at the Belo Mansion. The section will host Fifth Circuit Judge Katarina Haynes and Dallas Court of Appeals Justice Mary Murphy to discuss their experiences so far on their respective appellate courts.
Later that same day, the Collin County
Void orders of a trial court may occur in a number of different circumstances. The Corpus Christi Court of Appeals discusses one such circumstance in Silguero v. State.
The trial court dismissed the State’s action for forfeiture for want of prosecution and the State timely filed a motion to reinstate, but the motion was not verified. More than 30 days after the dismissal, the trial court granted the motion to reinstate. The trial court subsequently rendered a judgment of forfeiture and the Silgueros filed an appeal as well as a petition for writ of mandamus, each asserting that the trial court’s order of reinstatement was void.Continue Reading Challenging Void Orders and Motion to Reinstate
On Wednesday, February 11, 2009, Chief Justice Wallace Jefferson will deliver the State of the Judiciary address in the House Chamber in the State Capitol. Often the State of the Judiciary address lays out a theme and what the Judiciary hopes to obtain from the legislature in the way of funding or legislation during the particular
In probate proceedings it is not always clear when the court has rendered an appealable order. Probate proceedings can produce multiple final, appealable orders. The San Antonio Court of Appeals recently addressed one of those circumstances in In re Guardianship of Glasser.
In Glasser, the Probate Court appointed litigation counsel to help an Attorney Ad Litem in a guardianship proceeding. The court’s appointment order approved employment of litigation counsel and ordered that costs associated with the representation would be paid by the estate after being presented to the court and approved. The court subsequently signed two orders approving fees and a final order at the conclusion of the proceeding approving fees and discharging the attorney ad litem and the litigation counsel. The temporary guardian appealed the fee orders and the ad litem and litigation counsel sought dismissal, contending that the appeal was untimely because the court’s initial orders of appointment and approval of fees were final, appealable orders at the time they were signed.
The Court of Appeals disagreed, noting that the order of appointment simply set the stage for what followed and did not resolve a particular phase of the case. The parties and the court understood and intended that there would be interim fee awards and that all awards were subject to a final hearing. Accordingly, the interim orders were not final and appealable. Continue Reading Finality in Probate proceedings and Attorney Ad Litem Fees