We have a pair of starkly conflicting opinions recently issued by the Dallas Court of Appeals in the arena of Health Care Liability claims to report.  In one, the court applies the well-settled principle that a plaintiff’s pleadings do not determine whether a claim is a health care liability claim and the court applies the Texas Supreme Court’s analysis in Marks v. St. Lukes Episcopal Hospital to the legal determination of whether the claim is a health care liability claim.  In the second case, the court does not mention the Marks test, and holds that the plaintiff’s pleadings do determine whether a claim is a health care liability claim.

 

Continue Reading Chapter 74 Health Care Liability Claims

Parties seeking to appeal from an adverse judgment should be wary of requesting or otherwise approving the very judgment they intend to appeal.  In Sincerely Yours LP v. NCI Building Systems LP, Sincerely Yours obtained a favorable verdict on liability but wanted to appeal the exclusion of certain testimony relating to the extent of its damages.  After the verdict, Sincerely Yours moved for judgment and approved a proposed final judgment as to "form and substance."   Sincerely Yours later perfected an appeal to complain of the exclusion of the damages testimony. 

The Amarillo Court of Appeals dismissed the appeal in reliance upon well-settled authority that a party waives its right to appeal by moving for judgment without expressly indicating somewhere in the motion that it reserves the right to complain of the judgment on appeal.   Sincerely Yours should have indicated that it agreed to the form of the judgment only and that it disagreed with the result and reserved the right to appeal.  In dismissing the appeal, the court of appeals rejected Sincerely Yours’ argument that it had made the trial court aware of its intent to appeal by filing a motion for new trial.  The court of appeals held that the waiver occurred previously–when the motion for judgment was filed.  The court’s opinion may be found here.

The Dallas Bar Association Appellate Section has announcd a program change for the February meeting to be held this Thursday, February 17th.  Dana Livingston from Alexander Dubose & Townsend will present "Panel Roulette: What Fractured Fifth Circuit Opinions Teach Us About the Court’s Judges" at the meeting this Thursday. 

Chief Justice Wallace Jefferson was originally scheduled to speak at the February meeting.  The Chief Justice’s presentation on the "State of the Texas Supreme Court" has been rescheduled for the April 21st meeting.

One hour of CLE is available.  The meeting will be held in the Haynes and Boone Room at the Belo Mansion.

 

Here are a couple of Continuing Education opportunities for appellate practitioners:

On Thursday, February 17th at Noon, Chief Justice Wallace Jefferson will speak to theDallas Bar Association Appellate Law Section on the "State of the Texas Supreme Court."  The event will take place at the Belo Mansion as part of the the Appellate Law Section’s monthly lunch seminars and has been approved for 1 hour of CLE credit.

On Friday, April 15th, the Appellate Section of the State Bar of Texas will host an all-day seminar at the Sheraton Austin Hotel.  The event will include current Texas Supreme Court Justices Eva Guzman, Don Willett, Debra Lehrmann, and Nathan Hecht.  In addition, other speakers include prominent appellate practitioners from across the state and Texas Supreme Court Clerk Blake Hawthorne.  The seminar offers 6.75 hours of CLE credit.  A registration brochure is available at this link.

The Dallas Court of Appeals recently held that a default judgment containing a slightly different name than that contained in the citation constitutes error on the face of the record sufficient to justify reversal on restricted appeal.  In this appeal, the court was faced with a citation and return of service for "Rone Engineers, Ltd." and a deafult judgment against "Rone Engineering Service, Ltd."  The court stated that [t]he problem in this case is that the name of the defendant identified in the default judgment is different that the name of the defendant identified on the return if service."  The court of appeals also rejected appellee’s argument that this was a case of misnomer.  The court has consistently required "strict compliance with the rules governing service of process."  As this case, and my prior post on this subject indicate, when the Dallas court says strict, it means it.  The court’s opinion in Rone Engineering Service, Ltd. v. Culberson can be found at this link. 

If you’ve got a pending interlocutory appeal from a temporary injunction, or if you are considering filing such an appeal, you will want to pay attention to this.

The Dallas Court of Appeals has held that interlocutory appeals of temporary injunctions should be dismissed because they seek advisory opinions.  In Dallas/Fort Worth International Airport Board v. Association of Taxicab Operators, USA, the Association of Taxicab Operators sought temporary and permanent injunctive relief against the Airport Board’s new airport policy favoring taxicabs with dedicated CNG-powered engines.  After the trial court granted a temporary injunction, the Airport Board appealed.  Notably, at the oral argument, the court of appeals panel asked about the status of the trial on the permanent injunction and the parties advised the court that they had agreed to continue the case because of the pendency of the appeal of the temporary injunction.

Continue Reading Demise of Interlocutory Appeal of Temporary Injunctions?

On Thursday, January 20, 2011, at Noon, David Horan of the Jones Day law firm, will speak at the Belo Mansion on the subject of "Gould v. U. S.: How A Routine Pro Bono Criminal Appeal Resulted in a Trip to the Supreme Court."  This CLE is hosted by the Dallas Bar Association‘s Appellate Law Section.  Attendance is good for one hour of CLE credit. 
 

Where can you go to explore the cultures of other countries, visit with Mickey and Minnie, ride stomach-turning rides AND get Appellate CLE credits?  The DRI‘s Appellate Advocacy Seminar on March 10-11, 2011, in Orlando, Florida, of course.  The organizers have put together a live moot court demonstration with feedback from a panel of real judges.  Other topics include a look into the future of appellate law, ethical issues with overzealous advocates, brief writing, and tips from court clerks and staff.  The brochure for the seminar may be found here.  Other registration information may be found here.

And during your downtime, or on an extended stay, consider visiting the Magic Kingdom, EPCOT Center, or Universal Studios.  Or bring the kids and keep them entertained while you are racking up some CLE credit.

At its December meeting, the Dallas Bar Association‘s Appellate Law Section elected a slate of officers for the year 2011.  Congratulations goes to the following persons who were elected upon unanimous voice vote:

     Ben Mesches: Chair

     Jeremy Martin: Vice-chair

     Byron Henry: Secretary

     Michelle Robberson: Treasurer

Congratulations should also go to Rey Rodriguez for a fine job in 2010 as chair of the section.