The Waco Court of Appeals recently held, once again, that parties should obtain written orders on objections to summary judgment evidence in order to preserve error for review on appeal. The Court went on to analyze when rulings are implicit and held that while rulings can be inferred, they can only be inferred from the record
Opinions & Judgments
Whistleblower Act and scope of waiver of immunity
By Mike Northrup on
Posted in Opinions & Judgments
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…
Waiver of appellate review by failure to bring interlocutory appeal
By Mike Northrup on
Posted in Opinions & Judgments
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…
Reduce Damages Under CPRC 33.012 Before Applying Recovery Limitation in CPRC 41.0105
By Byron Henry on
Posted in Opinions & Judgments
In what appears to be a case of first impression, the Dallas Court of Appeals held that sections 33.012(a) and 41.0105 of the Civil Practice and Remedies Code should be harmonized by applying section 33.012(a)’s "damage" reduction before section 41.0105’s "recovery" limitation. In an opinion by Justice Moseley, the Court reasoned that because section 33.012(a) applies to the assessment of damages…
Chapter 74 Statute of Limitations Trumps Chapter 33 Extension
By Byron Henry on
Posted in Opinions & Judgments
The San Antonio Court of Appeals recently held that the two-year statute of limitations for health care liability claims in section 74.251 of the Civil Practice and Remedies Code cannot be extended by any other law, including section 33.004(e). The Court focused on the unambiguous language of section 74.251 that the two-year statute applies "notwithstanding…
Dissents and Stare Decisis
By Byron Henry on
Posted in Opinions & Judgments
"A dissent does many things—it pinpoints perceived faults in the Court’s opinion, it speaks to a future Court, it may suggest a legislative fix—but it is not the law." In his dissenting opinion, Chief Justice Jefferson argues that stare decisis mandates that the majority not adopt his dissent in a previous case.
Six years ago…
“Requests for Admission Are A Tool, Not A Trapdoor”
By Byron Henry on
Posted in Opinions & Judgments
In a 6-3 opinion, the Texas Supreme Court held that requests for admissions sent to an insurance carrier in one capacity cannot be used against it in different capacity. USF&G appeared in two capacities represented by two different law firms–as a defendant to the insured’s claim under the underinsured motorist policy and as subrogee to…
Appellate Dismissals in Dallas
By Mike Northrup on
Posted in Opinions & Judgments
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
By Mike Northrup on
Posted in Venue
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
Abatement vs Dismissal: Split of Authority?
By Byron Henry on
Posted in Opinions & Judgments
In an interesting opinion regarding dominant/servient jurisdiction and abatement, the Houston (First) Court of Appeals made this observation regarding the proper relief on a motion to abate:
Generally, the proper relief on a motion to abate on the ground of dominant jurisdiction is abatement. . . . However, there is also authority that that if a party
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