Opinions & Judgments

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The San Antonio Court of Appeals has held that a party challenging a default judgment may well risk losing the opportunity to challenge the exercise of personal jurisdiction over him unless special precautions are taken.

In Boyd v. Kobierowski, Kobierowski, a Texas resident, sued Boyd, a California resident, in Texas for breach of contract, fraud, misrepresentation and DTPA violations.  All causes of action arose from the sale of a vehicle  Boyd sold to Kobierowski. 

Boyd did not answer the suit and Kobierowski took a default judgment against Boyd.  Boyd subsequently filed a restricted appeal to challenge the default judgment.  He prevailed on appeal because of a defect in personal service.  See Appeal No. 04-06-0041-CV. 

On remand, Kobierowski repeatedly tried to get Boyd to answer the suit, but Boyd did not respond.  Kobierowski then took a second default judgment.  Boyd subsequently filed a special appearance and a motion for new trial subject to the special appearance.  The trial court denied the special appearance, but granted the motion for new trial.  In a second (interlocutory) appeal, Boyd argued that it was error to deny his special appearance.Continue Reading Waiver of Special Appearances in Default Challenges

Apparently the Dallas Court of Appeals is Pro-choice.  At least when it comes to a Plaintiff’s choice of forums.

In Signature Management Team, LLC v. Quixtar, Inc., the Dallas Court of Appeals determined that the trial court abused its discretion when it dismissed a case under the doctrine of forum non conveniens even though some substantive and probative evidence existed to support the court’s decision.Continue Reading Dallas Court of Appeals Favors Plaintiff’s Choice of Forum

The simple answer is yes, they do. See Texas Rule of Civil Procedure 162.

But the defendant’s pleading must allege a cause of action independent of the plaintiff’s claims on which the defendant can recover.  If a defendant fails to do so, then the plaintiff has an absolute right to a non-suit of all claims, as the Dallas Court of Appeals demonstrated in In re Metropolitan Lloyds Insurance Company of Texas.Continue Reading Do counterclaims survive when a plaintiff non-suits?

The Houston Court of Appeals (14th) recently held that a party may not avoid exclusion of an undisclosed expert by simply calling the witness to rebut previous testimony.  Appellee failed to timely disclose an expert.  The trial court allowed the expert to testify at trial over appellant’s objection.  On appeal, the appellant argued that the…

If the Eleventh Amendment to the U.S. Constitution bars your suit against a State, maybe the U.S. Government can bring the suit for you.  That’s what happened in EEOC v. Board of Supervisors for the University of Louisiana System. 

Dr. Van McGraw initially filed an age discrimination suit against the University of Louisiana System ("ULS"), after ULS implemented a new policy prohibiting the re-employment of retirees on a regular full-time basis.  McGraw was ultimately unsuccessful.

After McGraw unsuccessfully attempted to be rehired by ULS as an associate dean or as a professor, he filed a discrimination charge with the EEOC.  The EEOC took up his claim and filed an action against ULS seeking injunctive relief and relief for the benefit of McGraw.  ULS filed a motion for summary judgment and a motion to dismiss, arguing that the Eleventh Amendment barred the proceedings.  After the district court denied the motions, ULS filed an interlocutory appeal.Continue Reading Eleventh Amendment Doesn’t Bar the Government from Suing a State

Assume a foreign insurance company provides auto insurance cards that specifically cover accidents both in the home country and the United States.  If a car accident occurs in Texas, can the insurer avoid personal jurisdiction in the suit by alleging that it did not purposefully avail itself to Texas?

This was the issue before the Dallas Court of Appeals in Assurances Generales Banque Nationale v. Dhalla.Continue Reading In case you’re ever in a car accident with someone insured by a foreign insurance company…

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