Archives: Opinions & Judgments

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Discretion to issue “superdupersedeas” against the State

The Supreme Court of Texas has recognized the discretion of a trial court judge to deny the State of Texas automatic supersedeas in cases involving non-monetary judgments pursuant to Texas Rule of Appellate Procedure 24.2(a)(3). In In re State Board for Educator Certification, a schoolteacher challenged the State Board for Educator Certification’s revocation of his … Continue Reading

Mandamus Developments at the Dallas Court of Appeals

As most appellate lawyers around Dallas know, the Fifth Court of Appeals has a reputation (well-earned) for disposing of petitions for mandamus in, let’s say, a summary fashion. Specifically, the mandamus denials, with few exceptions, have consisted of three-sentences memorandum opinions, two of which were reserved for the standard introduction ("The facts are well known … Continue Reading

Conflicts in Summary Judgment Practice

I recently presented a continuing education seminar focusing on current issues in state summary judgment practice.  As a result of that presentation, the Dallas Court of Appeals‘ holding in Bastida v. Abel’s Mobile Home Service, Inc., came to my attention.  In that case, the trial court granted a summary judgment in favor of Richard Aznaran.  … Continue Reading

Dallas court limits discovey of expert’s finances

The Dallas┬áCourt of Appeals recently issued an opinion limiting the discoverability of an expert’s finances. In this personal injury case, the defendant hired an expert employed by a firm that derived ninety percent of its revenues “from the defense side of the docket.” Armed with this information, the plaintiff sought financial information regarding the firm’s … Continue Reading

New Standard for Mandamus Relief?

The Dallas Court of Appeals has issued an Opinion in a mandamus proceeding that establishes a new standard for mandamus relief.  In In re Pendragon Transportation, LLC, Pendragon complained of a trial court order that appointed a special master to attend depositions in the case and to make rulings on any objections, assertions of privilege, … Continue Reading

Dallas Court of Appeals issues rare en banc decision addressing summary judgment practice

The Dallas Court of Appeals recently addressed summary judgment practice in a rare en banc opinion. At issue was whether the defendants’ no-evidence motion for summary judgment adequately challenged the elements of plaintiffs’ claims by listing the elements  and then stating that the plaintiffs had no evidence to support "one or more" of the elements … Continue Reading

Admissions not binding on employment status

Attorneys should think twice before relying on an admission regarding a party’s employment status.  The Dallas Court of Appeals recently held that discovery admissions are not binding on legal issues, and do not raise a genuine issue of material fact on questions of law.  In this case, the plaintiff sued the City of Dallas for … Continue Reading

More Fun with Supersedeas Practice

The Houston Fourteenth Court of Appeals recently issued an opinion that addresses a couple of important issues for supersedeas practice, namely consolidated financial statements, burden of proof, and expert requirements. In Hunter Buildings & Manufacturing L.P. v. MBI Global L.L.C., the trial court signed a judgment against six entities for joint-and-several liability.  Three of the … Continue Reading

Jurisdiction under the Class Action Fairness Act

The Class Action Fairness Act (CAFA) gives federal courts jurisdiction of class actions where the matter in controversy exceeds $5 million.  The U.S. Supreme Court considered the question of whether a named class representative can avoid application of CAFA by stipulating that he will not seek damages that exceed $5 million in Standard Fire Ins. … Continue Reading

Affidavits and Personal Knowledge

One should always be careful of falling victim to using and reusing forms because it may come back to bite you.  Many drafters of affidavits start out by having the affiant state something like, "I have personal knowledge of the facts set forth below."  This language by itself may not be sufficient to give anything … Continue Reading

Mandamus Fundamentals

In the heat of the rush to get a mandamus filed with the court of appeals, it’s easy to overlook basic mandamus requirements.  That appears to be what happened in In re Moffitt, a mandamus proceeding filed in the Amarillo Court of Appeals. Mr. Moffitt sought a mandamus to compel the Hutchinson County District Judge and … Continue Reading

No Presentment, No Attorney’s Fees

The Dallas Court of Appeals reaffirmed the requirement that a claim be presented to the opposing party in order to recover attorney’s fees under Chapter 38 of the Civil Practice and Remedies Code.  Here, the party seeking fees argued that the offers exchanged at mediation constituted presentment for purposes of CPRC Section 38.002.  The Court … Continue Reading

News flash — Attorney’s fees are not damages

The Dallas Court of Appeals recently confirmed that attorney’s fees are not economic damages.  In this case, a party objected to testimony regarding attorney’s fees because the opposing party failed to include the attorney’s fees information in its response to a TRCP194.2(d) request to disclosure the amount and method of calculating economic damages.  The court … Continue Reading

Formation of the Attorney-Client Relationship

How and when does an attorney-client relationship form?  The Dallas Court of Appeals says that the attorney-client relationship is contractual in nature and may be either express or implied.  But the relationship must be based upon an intent by BOTH parties to create such a relationship and it is insufficient to create an attorney-client relationship … Continue Reading

Mandatory Trial Amendment

The Dallas Court of Appeals recently decided a case in which it held that it was mandatory for the trial court to grant a trial amendment. The opinion is interesting because its procedural facts suggest other scenarios in which a mandatory trial amendment might be required. The basic dispute was a contract dispute between Dallas City … Continue Reading

Texas Supreme Court to decide whether attorney’s fees must be superseded pending appeal

The Texas Supreme Court recently set In Re Nalle Plastics Limited Partnership for oral argument indicating that it will decide whether attorney’s fees must be superseded pending appeal.  The Court will resolve a split of authority that has developed in Texas courts of appeals as to whether attorney’s fees consitute "compensatory damages" under Texas Rule of Appellate Procedure 24.2 and … Continue Reading

Post-judgment injunction upheld

Appellate Rule 24.4(a) sets out the matters that an appellate court may review with respect to posting of supersedeas.  Review of a post-judgment injunction order under Rule 24.2(d) is not among those items.  Appellant Hydroscience Technologies, Inc. obtained review of an order granting a post-judgment injunction in Hydroscience Technologies, Inc. v. Hydroscience, Inc. The trial … Continue Reading