Opinions & Judgments

Subscribe to Opinions & Judgments via RSS

A party seeking summary judgment must raise all its grounds in the motion itself; raising a ground for summary judgment at the summary judgment hearing will not support the summary judgment if the judgment is attacked on appeal.

In Ritchey v. Pinnell, Brenda Ritchey brought suit against Steven and Amy Pinnell after Ritchey…

A couple of opinions–one state and one federal–reiterate the effect of an appellate court’s mandate following remand of the case back to the trial court.

 The Fifth Circuit Court of Appeals held that a prior decision decertifying a class certification "foreclosed the re-litigation of the class certification" on remand to the trial court.  Gene and Gene, L.L.C. filed suit against BioPay, L.L.C. alleging violation of the Telephone Consumer Protection Act of 1991 due to the sending of unsolicited advertisements from one fax machine to another.  After the district court certified the class, BioPay filed an interlocutory appeal.  The Fifth Circuit reversed the certification, held that the issue of consent precluded certification, and remanded to the district court "for further proceedings not inconsistent with this opinion."  After remand, Gene & Gene discovered a searchable datebase that it contended established a common method of establishing the issue of consent.  Gene & Gene moved to recertify and the district court granted recertification.  A second appeal followed. 

Two judges on the Fifth Circuit panel held that the law-of-the-case doctrine or mandate rule foreclosed the district court from reconsidering the certification.  Alternatively, the two-judge majority held that the evidence discovered on remand was not substantially different from the evidence before the court in the first opinion.  The third judge on the panel concurred in this latter holding.  The court’s opinion in Gene & Gene, L.L.C. v. BioPay, L.L.C., may be found here.Continue Reading Follow Thy Mandate

The Fifth Circuit Court of Appeals recently held that a district court overstepped the bounds of a court’s inherent authority by sanctioning conduct that occurred in connection with an arbitration proceeding. 

In Positive Software Solutions, Inc. v. New Century Mortgage Corp., the district court invoked its inherent authority to sanction and sanctioned the attorney…

I have said on various occasions (during admittedly nerdy conversations with colleagues) that this expert opinion or that piece of evidence surely constitutes no evidence as a matter of law and that no court could possibly see it differently.  But we all know that it is never quite that easy and never that clear cut.  The Beaumont Court of Appeals’ recent 2-1 opinion in Pink v. Goodyear Tire & Rubber Company illustrates this point.

In Pink, the panel reversed a no evidence summary judgment rendered for Goodyear.  That reversal was based, in part, on the court’s determination that the following expert testimony presented by Pink constituted some evidence of causation: 

I was Veryl Pink’s treating oncologist. Mr. Pink was diagnosed with renal cell carcinoma, which was confirmed by biopsy. The ultimate cause of Mr. Pink’s death was the progression of the disease.

Based upon reasonable medical probability it is my opinion that the cause of Mr. Pink’s renal cell carcinoma was exposure to chemicals, more than likely benzene. In rendering this opinion I have reviewed Mr. Pink’s medical records, the deposition testimony of Mr. Pink and three of his coworkers, the deposition of Dr. Radelat, and scientific literature.

Continue Reading Another disagreement over what constitutes no evidence of causation

Each election season is sure to bring a slew of new mandamus opinions as decisions of our election officials are challenged.  That’s what happened in In re Cercone. 

Albert Cercone, who is the Republican Party nominee for Dallas County Justice of the Peace, Precinct 3, Place 1, filed a petition for writ of mandamus to…