Texas Appellate Rule 52.3(k)(1)(A) requires that an appendix to a Petition for Writ of Mandamus must contain a certified or sworn copy of any order complained of, or any other document showing the matter complained of. Appellate courts are very strict in enforcing this requirement. So much so that even when the Respondent trial judge does
Opinions & Judgments
New 41.0105 Opinion — Don’t forget the evidence of write-offs
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The El Paso Court of Appeals issued an opinion this week that addresses, in part, application of Civil Practice and Remedies Code Section 41.0105. There are two takeaways from the Section 41.0105 discussion.
First, the El Paso court joins the majority of intermediate appellate courts in Texas holding that 41.0105 should be handled post-verdict. Frontera Sanitation, LLC …
Remittitur on Rehearing
By Byron Henry on
Posted in Opinions & Judgments
Talk about snatching victory from the jaws of defeat. The Dallas Court of Appeals recently held that an appellee is entitled to voluntary remittitur on rehearing. In this case, the court of appeals originally issued an opinion in which it found the evidence insufficient to support the amount of damages. Because liability was contested, the court reversed the judgment…
Preserving error to complain of death penalty sanctions
By Mike Northrup on
Posted in Mandamus
In a mandamus setting, it can sometimes be a challenge to ensure that you’ve brought forward all the documents and hearing transcripts required to establish an abuse of discretion. The Houston Fourteenth District Court of Appeals has suggested the record in a death penalty sanctions case may need to be fairly comprehensive. In In re …
Summary Judgment Affidavits: Form vs. Substance
By Mike Northrup on
Posted in Opinions & Judgments
The difference between defects in the form of an affidavit versus defects in substance is not always clear and the appellate courts have not always agreed on what is substantive and what is not. But the difference can be important. As the Dallas Court of Appeals points out in Stone v. Midland Multifamily Equity Reit…
Judgments, Net Worth, and Supersedeas
By Byron Henry on
Posted in Opinions & Judgments
Once again, a court of appeals has weighed in on the question of calculating net worth for purposes of supersedeas. The Dallas Court of Appeals recently held that a trial court did not abuse its discretion by refusing to include the judgment as a liability in calculating the judgment debtor’s net worth. The court relied on the…
Chapter 74 Health Care Liability Claims
By Mike Northrup on
Posted in Opinions & Judgments
We have a pair of starkly conflicting opinions recently issued by the Dallas Court of Appeals in the arena of Health Care Liability claims to report. In one, the court applies the well-settled principle that a plaintiff’s pleadings do not determine whether a claim is a health care liability claim and the court applies the Texas Supreme Court’s analysis in Marks v. St. Lukes Episcopal Hospital to the legal determination of whether the claim is a health care liability claim. In the second case, the court does not mention the Marks test, and holds that the plaintiff’s pleadings do determine whether a claim is a health care liability claim.
Be Careful What You Ask For…
By Mike Northrup on
Posted in Opinions & Judgments
Parties seeking to appeal from an adverse judgment should be wary of requesting or otherwise approving the very judgment they intend to appeal. In Sincerely Yours LP v. NCI Building Systems LP, Sincerely Yours obtained a favorable verdict on liability but wanted to appeal the exclusion of certain testimony relating to the extent of its…
Deja vu all over again? Different name leads to reversal by restricted appeal
By Byron Henry on
Posted in Opinions & Judgments
The Dallas Court of Appeals recently held that a default judgment containing a slightly different name than that contained in the citation constitutes error on the face of the record sufficient to justify reversal on restricted appeal. In this appeal, the court was faced with a citation and return of service for "Rone Engineers, Ltd."…
Demise of Interlocutory Appeal of Temporary Injunctions?
By Mike Northrup on
Posted in Opinions & Judgments
If you’ve got a pending interlocutory appeal from a temporary injunction, or if you are considering filing such an appeal, you will want to pay attention to this.
The Dallas Court of Appeals has held that interlocutory appeals of temporary injunctions should be dismissed because they seek advisory opinions. In Dallas/Fort Worth International Airport Board v. Association of Taxicab Operators, USA, the Association of Taxicab Operators sought temporary and permanent injunctive relief against the Airport Board’s new airport policy favoring taxicabs with dedicated CNG-powered engines. After the trial court granted a temporary injunction, the Airport Board appealed. Notably, at the oral argument, the court of appeals panel asked about the status of the trial on the permanent injunction and the parties advised the court that they had agreed to continue the case because of the pendency of the appeal of the temporary injunction.Continue Reading Demise of Interlocutory Appeal of Temporary Injunctions?