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
Opinions & Judgments
Mandamus Fundamentals
By Mike Northrup on
Posted in Mandamus
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…
Appeal dismissed for violating trial court’s orders
By Byron Henry on
Posted in Opinions & Judgments
The El Paso Court of Appeals recently dismissed an appeal because the appellant failed to comply with a trial court’s post-judgment orders. Here, a final judgment was entered against the appellant and the appellant did not pay the judgment or file a supersedeas bond. The appellee sought post-judgment discovery. The appellant failed to answer the…
No Presentment, No Attorney’s Fees
By Byron Henry on
Posted in Opinions & Judgments
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…
News flash — Attorney’s fees are not damages
By Byron Henry on
Posted in Opinions & Judgments
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…
Formation of the Attorney-Client Relationship
By Mike Northrup on
Posted in Summary Judgment
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…
Mandatory Trial Amendment
By Mike Northrup on
Posted in Opinions & Judgments
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…
Texas Supreme Court to decide whether attorney’s fees must be superseded pending appeal
By Byron Henry on
Posted in Opinions & Judgments
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…
Post-judgment injunction upheld
By Mike Northrup on
Posted in Opinions & Judgments
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…
Is a Judgment Included in a Net Worth Calculation?
By Mike Northrup on
Posted in Opinions & Judgments
The El Paso Court of Appeals has become the most recent appellate court to weigh in on the issue of whether the judgment that is being appealed should be included on a balance sheet insofar as determining an appellant’s net worth for supersedeas bond purposes.
In Business Staffing Inc. v. Jackson Hot Oil Service, Jackson…