“attorney’s fees” preservation “segregation of fees”
Continue Reading Attorneys’ fees recovery and preservation of segregation complaint
Proportionate Responsibilty: What is contributory negligence?
The Amarillo Court of Appeals‘ opinion in Block v. Mora could be a law school exam question. The opinion may be especially important to jury charge junkies. Here are the essential facts:
Plaintiff places a spare tire on top of four 5-gallon buckets of hydrolic oil in the bed of his pickup truck. He does not secure the tire. Later that day, Defendant pulls her vehicle in front of Plaintiff’s pickup truck, causing her to collide with the front end of his truck. On impact, the spare tire is propelled forward through the truck’s rear window, stricking Plaintiff in the back of the neck and shoulder and causing him injury. Defendant admits that she was driving her mother’s vehicle without permission, she had no driver’s license, and the accident was her fault.
Plaintiff sues Defendant and Defendant asserts the affirmative defense of contributory negligence. The trial court submits the following jury question:
Did the negligence, if any, of those named below proximately cause the injuries, if any, to Defendant?
Answer “Yes” or “No” for each of the following:
a. Defendant _______________
b. Plaintiff _______________
The jury answers "Yes" for Plaintiff and "No" for Defendant and the trial court renders a take-nothing judgment. On appeal, Plaintiff complains that his negligence should not have been submitted because there was no evidence he was contributorily negligent.Continue Reading Proportionate Responsibilty: What is contributory negligence?
Texas Board of Legal Specialization Results
Results for the 2008 Board of Legal Specialization Exam are out. The number of board-certified appellate practitioners swelled considerably. By my count, we have 11 new board-certified appellate practitioners. Congratulations go to the following:
Michael Truesdale (Austin)
Leane Medford (Dallas)
Blake Hawthorne (Austin)
James Pinson (Dallas)
Bruce Thomas (Dallas)
Vance Wittie (Dallas)
Alessandra Ziek (Austin)
Chad
Whistleblower Act and scope of waiver of immunity
The Houston Fourteenth District Court of Appeals highlighted a split of authority in the courts of appeals regarding waiver of immunity in the Texas Whistleblower Act. In Galveston ISD v. Jaco, the Court considered the question of whether immunity from liability is coextensive with immunity from suit under the Whistleblower Act. The Court
Tarrant County Appellate Section CLE
On January 30, 2009, the Tarrant County Appellate Section is sponsoring a Brown Bag Seminar at Texas Wesleyan Law School in Fort Worth entitled "Fighting the Forum: Avoiding Litigation in Texas State Court." Topics will include Special Appearance, Forum Non Conveniens, Arbitration, Forum Selection Clauses, and Removal and Remand–all topics that are near and dear
Appellate CLE
The State Bar of Texas is sponsoring its 2009 Practice Before the Supreme Court on April 17, 2009, in Austin Texas. The one-day course will be held at the AT&T Executive Education and Conference Center located at 1900 University Avenue.
The course will cost $325 ($275 for early bird registrants) and is worth approximately 5.5 hours
Waiver of appellate review by failure to bring interlocutory appeal
Does a party waive its right of appellate complaint by failing to bring an interlocutory appeal when a right of interlocutory appeal exists? At least one court of appeals has answered that question in the affirmative and one court has answered that question in the negative. It now appears that the Dallas Court
Luncheon to Honor Justice Mark Whittington
On Thursday, January 15, 2009, the Dallas Bar Association’s Appellate Law Section, ADR Section, and Judiciary Commitee will honor retiring Dallas Court of Appeals Justice Mark Whittington for his 25 years of service to the judiciary.
A luncheon will be held at Noon at the Belo Mansion. The regular luncheon buffet will be available ($12.76).
Appellate Dismissals in Dallas
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.Continue Reading Appellate Dismissals in Dallas
Fifth Circuit Discusses Venue Selection Clauses
If you’ve got a venue selection clause and you are wondering whether you can file in state or federal court, or whether you can remove a state-filed case to federal court, you might look at the Fifth Circuit‘s opinion in Alliance Health Group LLC v. Bridging Health Options LLC.
The venue clause in this case provided that "exclusive venue for any litigation related hereto shall occur in Harrison County, Mississippi." The Court held that the particular language of this clause and the fact that Harrison County, Mississippi has a federal courthouse in that county permits venue in federal court. Significantly, the Court discusses a number of other permutations to the language in venue clauses and draws distinctions that may be of use to practitioners.
For your convenience, I’ve extracted from the court’s opinion its commentary on some of the permutations of venue selection language and what result attaches to the language.Continue Reading Fifth Circuit Discusses Venue Selection Clauses