The Dallas Court of Appeals has explained how to submit jury questions for negligence of employees for whose conduct employers may be held vicariously liable.

 In Janga v. Colombrito, two defendant doctors appealed an adverse jury verdict and complained that the trial court had not submitted the liability of two nurses as part of the liability question.  The appellate court first had to decide whether the nurses were "settling persons" under Chapter 33 of the Civil Practice and Remedies Code.  The court held that the nurses were settling persons.  Even though the nurses did not themselves pay money, their employer–the hospital–did pay money on their behalf and the nurses were parties to a settlement agreement whereby they were dismissed from the case.  The hospital would have had vicarious liability for the nurses’ alleged negligence.

Next, the court examined the record to determine if there was some evidence of the nurses’ negligence and concluded that there was some evidence.  Thus, the court held that it was error to omit them from the list of parties whose negligence should have been decided by the jury.  Noting that when there is a respondeat superior claim submitted, the individual employee defendant’s negligence is submitted, rather than that of the employer.  The court concluded there is no reason to treat settling employees any differently.  Finally, the court rejected the argument that the jury had disregarded the jury questionnaire and assessed liability on the hospital for the nurses’ conduct along with direct liability to the hospital.  The court must presume that the jury followed the trial court’s written instructions.  The court’s opinion may be found here.

The Fort Worth Court of Appeals recently held that it was error for a trial court to order that an attorney not file a notice of appeal until his client directed him to do so.  After trial, Relator’s counsel sought to have appellate counsel substiuted in for any possible appeal.  The Texas Department of Protective and Regulatory Services (Department) opposed the request and argued that no appellate counsel should be appointed, and no notice of appeal should be filed, until Relator expressed his desire to appeal.  The trial court signed an order denying the substitution and prohibiting counsel from filing a notice of appeal unless Relator so directed.  Relator sought mandamus relief and argued that whether counsel has authority from a client to file a notice of appeal is an issue for the appellate court regarding its jurisdiction.  The court of appeals agreed, holding that "to the extent there is a factual dispute concerning the lawyer’s authority to file a notice of appeal, the dispute must be resolved by the court of appeals . . . ."  The court also held that "[t]he trial court does not, however, have the authority to interfere with our jurisdiction by prohibiting a party from filing a notice of appeal."  Accordingly, the court granted the petition and ordered the trial court to vacate its order prohibiting the filing of a notice of appeal.  The court’s opinion in In re J.R.J. can be found at this link.

The Dallas Court of Appeals has held that Appellate Rule 24.3(a)(3) cannot be invoked to allow an Appellee to provide a "reverse supersedeas bond" when doing so denies an Appellant its appeal.

In Hydroscience Technologies Inc. v. Hydroscience Inc., Hydroscience, Inc. obtained a declaratory judgment declaring that it owned shares of preferred stock in Hydroscience Technologies and giving it a right to examine Hydroscience Technologies’ company books.  Hydroscience Technologies appealed this judgment.  The trial court denied Hydroscience Technologies the right to supersede the judgment and allowed Hydroscience Inc. to post a "reverse supersedeas" bond in the amount of $10,000 so as to allow Hydroscience Inc. to examine the company books while the judgment was on appeal.  Hydroscience Technologies filed a motion with the court of appeals to review the trial court’s denial of its supersedeas request.

After pointing out that Hydroscience Technologies was appealing the trial court’s judgment that granted the right to inspect its company books, the court of appeals noted that once Hydroscience Inc. is allowed to inspect the books pursuant to the supersedeas order, then the damage to the right to an effective appeal has been done.  The court held that Rule 24.3(a)(3)’s "reverse supersedeas" provision does not give the trial court discretion to deny an Appellant its appeal.  The court’s opinion may be found here. 

The Amarillo Court of Appeals dismissed a Petition for Writ of Mandamus against a justice of the peace because a court of appeals does not have jurisdiction to issue a writ of mandamus against a justice of the peace.

In In re Smith, the relators sought a writ of mandamus against a justice of the peace in Floyd County, Texas to order the JP to set a case for a jury trial and to enforce a Rule 11 Agreement and for other assorted requests.  The court of appeals noted that its power to issue writs is derived from the constitution and from statute and neither of those authorities afford jurisdiction to issue a writ of mandamus against a justice of the peace.  Accordingly, the court dismissed the petition for writ of mandamus for lack of jurisdiction.  The court’s opinion may be found here.

The Dallas Court of Appeals, in an opinion by Chief Justice Carolyn Wright (left), recently held that attorney’s fees awarded in a judgment need not be superseded on appeal.  In an opinion last year also by Chief Justice Wright, the Dallas Court held that attorney’s fees awarded in a breach of contract case were not "compensatory damages," and, therefore, were not required to be superseded on appeal.  Here, attorney’s fees were awarded under Chapter 134 of the CPRC, otherwise known as the Texas Theft Liability Act.  The Court held that Chapter 38 (regarding breach of contract) and Chapter 134 of the CPRC were basically indistinguishable noting that attorney’s fees were mandatory under  both provisions.  The Court refused to follow the rationale of the Houston (1st) Court of Appeals, which had previously held that attorney’s fees constitute compensatory damages and must be superseded on appeal. Consequently, the Dallas Court denied the Appellee’s request to increase the supersedeas bond to secure the award of attorney’s fees.  This creates a spilt of authority between Dallas and Austin, both holding attorney’s fees need not be superseded, and Houston (1st), holding attorney’s fees must be superseded, making it ripe for review by the Texas Supreme Court.   The Court’s opinion in Imagine Automotive Group, Inc. v. Boardwalk Motor Cars, LLC can be found here.  

When I don’t want oral argument or don’t think it is necessary, my standard operating procedure has been to (1) put nothing regarding oral argument on the front cover of my brief, and (2) include a Statement Regarding Oral Argument in the brief explaining why it has not been requested but adding a statement that, if the Court desires oral argument, then Appellant (or Appellee) would like the opportunity to appear and present argument.

I learned today that the clerks at the Dallas Court of Appeals would like something on the front of the brief regardless of whether you are requesting oral argument.  So, in the scenario above, I would (1) put something like this on the front cover: "Oral Argument Not Requested Unless Requested by Appellee and/or the Court," and (2) include the Statement Regarding Oral Argument in the brief as usual.

This will make the clerk’s office happy because they won’t have to dig through your brief to determine whether or not a motion to allow argument is necessary.  It should also alleviate the need to ever file such a motion.  A win-win for everyone! 

Happy briefing.

 

The Fort Worth Court of Appeals has held that a party may recover for the loss of companionship or sentimental value of a dog.

In Medlen v. Strickland, the Medlens’ dog escaped and was picked up by animal control.  The animal shelter represented to the Medlens that they would put a "hold" on the dog until a specific date, so that he wouldn’t be euthanized.  Unfortunately, the shelter euthanized the dog prior to the date represented.  The Medlens brought suit and sought recovery for the "sentimental or intrinsic value" of their dog.  The district court dismissed on the ground that Texas does not recognize such a claim.

On appeal, the court of appeals discussed a 120-year-old Texas Supreme Court opinion, which is the only time it appears that court has addressed recoverability of damages for loss of a dog.  In that case, the court held that a party may recover either the market value of the dog, or some special or pecuniary value to the owner that may be ascertained by reference to the usefulness and services of the dog.  The Fort Worth Court of Appeals disagreed with the Austin Court of Appeals and held that the earlier supreme court opinion had not held that "special value" was derived solely from usefulness or services of the dog.  The court went on to conclude that "special value" should, and does, include sentimental or emotional value of the pet.  The court’s opinion may be found here.

 

The Dallas Court of Appeals has held that a trial court did not abuse its discretion by excluding the amount of the judgment appealed from the judgment debtor’s net worth calculation for purposes of a supersedeas bond.  What is different from this opinion than from a prior opinion we blogged about is that in this case there was expert testimony on both sides of the issue.

In Anderton v. Cawley, Anderton sought to reduce the amount of supersedeas required of him.  He filed an affidavit of net worth with a negative net worth and showing the amount of the trial court’s judgment against him as a liability.  One Appellee objected to the affidavit and a hearing was held to determine the debtor’s net worth.  Anderton presented expert testimony showing why the judgment should be treated as a liability under generally accepted accounting principles (GAAP).   The Appellee also presented expert testimony.  Its expert testified that not including the judgment in the net worth calculation is consistent with GAAP.  The trial court rejected inclusion of the judgment as a liability, determining that it would be "illogical" to do so.

On motion to review the trial court’s ruling, the court of appeals holds that the trial court did not abuse its discretion in excluding the judgment.  The reasoning for the decision is limited.  The court noted that supersedeas requires calculation of net worth and observed that the statute regarding supersedeas does not include a "contingent money judgment" as a liability.  The court’s opinion may be found here.

In 2007, the Texas Legislature adopted a Certificate of Merit requirement applicable to claims against architects and engineers.  The statutory requirement is much like the expert affidavit requirement applicable to health care liability claims.  The Houston First District Court of Appeals has given us an idea of just how broadly the statute should be interpreted.

In Carter & Burgess Inc. v. Sardari, Sardari brought suit against a contractor–Carter & Burgess–responsible for installing a door in a business in the Houston Galleria after Sardari cut her wrist on the edge of the door.   The trial court denied Carter & Burgess’s motion to dismiss, which was based upon Sardari’s failure to file a certificate of merit.  Sardari argued that she was not required to file a certificate of merit because the nature of her claim against Carter & Burgess was not based upon its design services, but instead was based upon its actions as a project manager during construction.

Carter & Burgess filed an interlocutory appeal, which is provided as part of the statutory scheme.  The court of appeals reversed and remanded with instructions to the trial court to dismiss.  Civil Practice and Remedies Code Section 150.002(a) requires a certificate of merit in any action (or arbitration) arising out of professional services provided by a licensed or registered professional.  Section 150.001(1) broadly defines "licensed professional" to include "any firm in which such licensed or registered professional practices."  Thus, it would appear that so long as any defendant employs a licensed, practicing architect, engineer, landscape architect, or land surveyor, a certificate of merit is required–even if the person who is the licensed professional has nothing to do with the activity sued over.  The court of appeals expressly rejected Sardari’s argument that Carter & Burgess’s use of an unlicensed employee to provide the services in question takes the case outside of the statutory requirement.  The court’s opinion may be found here.

Here’s one to put in your mandamus file.  The Dallas Court of Appeals has held that the trial court abused its discretion by denying a special exception and that the relators had no adequate remedy by appeal.  Of course, there’s more to this holding than meets the eye.

This is a sharolder derivative suit governed by Delaware law.  Delaware law requires a party bringing such an action to first make demand that the board of directors bring suit and refuse to do so, or show that the demand would be futile.  Under Delaware law, the plaintiffs must make a particularized showing in their pleading of the facts relating to this requirement.  The plaintiffs did not do so, and the defendants/relators specially excepted to the pleading.  District Court Judge Martin Hoffman denied the special exceptions.

The court of appeals held that Judge Hoffman abused his discretion by denying the special exceptions.  On appeal, the plaintiffs appear to have tried to provide the specificity that should have been contained in their trial court pleading.  The appellate court rejected the explanations on the merits and also pointed out that the allegations were not contained in the trial court pleading.  Citing the Texas Supreme Court’s opinion in In re Schmitz, 285 S.W.3d 451, 459 (Tex. 2009), the court of appeals also held that the relators/defendants did not have an adequate remedy by appeal.  I took a look at Schmitz.  It’s a mandamus action from a shareholder deriviative action governed by Texas law.  The Court in that case concluded that the plaintiffs had not complied with the demand requirement before bringing suit, and that the appellate remedy would be inadequate if a shareholder were permitted to sue without complying with the statutory prerequisite demand.

The court of appeals’ opinion in In re Brick may be found here.