The Amarillo Court of Appeals recently concluded that when a probate proceeding is filed in a court that does not have jurisdiction, a judgment from the court is void, rather than voidable.  In Winfield v. Pietsch, Dale Winfield, Gloria Johnson, and James Winfield filed suit in district court in Randall County seeking to challenge a Will executed by Jena Beth Winfield.  Karen Sue Pietsch filed a special exception to challenge the jurisdiction of the district court, but she never sought to have the proceedings dismissed on that basis.  Instead, she sought and obtained a summary judgment.  Dale Winfield, Gloria Johnson, and James Winfield then appealed.

On appeal, Pietsch sought dismissal on the ground that the district court was without subject-matter jurisdiction, which rendered the judgment void.  The court of appeals observed that Probate Code Section 5(c) vested jurisdiction in the county courts, rather than in district court over applications, petitions, and motions regarding probate or administration.  Accordingly, the court holds that the district court’s judgment was void.  The court’s opinion may be found here.

As a final note, I would point out that some courts of appeals have treated this probate code section as creating concurrent jurisdiction and creating dominant jurisdiction issues where there is more than one proceeding pending–such as where a prior estate administration has been opened.   This treatment appears to be a result of the Texas Supreme Court’s opinion in Bailey v. Cherokee Cty. Appr. Dist., 862 S.W.2d 581 (Tex. 1993), which contains some confusing language.  Hopefully the supreme court will one day clarify its Bailey opinion.

The Dallas Court of Appeals recently held that the major transaction exception to the prohibition on venue agreements only applies if the value of the transaction is contained in the agreement itself.  In this original proceeding, the parties entered into a settlement agreement involving real estate in which the parties agreed that venue of any dispute would be in Dallas County.  Plaintiff brought suit in Dallas County, the defendant moved to transfer to the county in which the property was located.  The plaintiff argued that venue in Dallas County was proper under section 15.020 of the Texas Civil Practice and Remedies Code because the transaction involved consideration of more than $1,000,000.  The Court disagreed and held that in order for section 15.020 to apply, the "agreement must contain the agregated stated value of the consideration."  Because the settlement agreement did not contain the amount, the trial court abused its discretion by denying the defendant’s motion to transfer to the county of mandatory venue.  As a result, the Court granted the defendant’s petition for writ of mandamus.  The Court of Appeals decision in In re Togs Energy, Inc. can be found at this link. 

The Houston First District Court of Appeals has held that a trial court abused its discretion by denying the plaintiffs discovery of jurisdictional facts pertaining to the defendants’ personal appearance.  In Lamar v. Poncon, John and Nanci Lamar sued Eric Poncon, Morgan’s Rock Hacienda, and Ecolodge for negligence in causing injuries arising out of a car accident that occurred when the Lamars travelled to Nicaragua.  Morgan’s Rock and Poncon filed special appearances to challenge the exercise of jurisdiction.

On three separate occasions, the Lamars moved for jurisdictional discovery, each time providing additional information as to what information they were seeking and why the jurisdictional discovery sought was needed.  Each time the trial court denied the request.   The trial court eventually sustained the special appearances, after which the Lamars appealed and complained of the rulings on their motions for discovery.

The court of appeals observes that Civil Procedure Rule 120a(3) governs jurisdictional discovery and under the rule, a party opposing a special appearance may have discovery into jurisdictional facts if it presents an affidavit that it cannot provide facts essential to justify its opposition to the special appearance.  The court held that a denial under this rule is governed by an abuse of discretion standard.  The court then recites all of the efforts the Lamars made to obtain the necessary information and concludes that the trial court abused its discretion by denying the jurisdictional discovery.  From a practitioner’s standpoint, the court does not explain how the trial court’s denial was a failure to follow guiding rules and principles or otherwise arbitrary.   Nor does the court indicate at what point (after the first motion, second motion or third motion, or all three), the denial of discovery constituted an abuse of discretion.

The court reverses an order granting the special appearance and remands the case to the trial court for further proceedings.  The court’s opinion may be found here.

 

What should you do if you show up for a bench trial and there is no court reporter?

The Fort Worth Court of Appeals recently decided an appeal raising this issue.  In Kohler v. M & M Truck Conversions, M & M contractually hired Kohler to install a wheelchair lift and related hydraulic equipment on a horse truck.  Kohler later sued M & M for failing to pay him for his work. 

The parties had a bench trial on the issues.  At trial, although there was not a court reporter present to make a record of the proceedings, neither party objected.  The court awarded Kohler minimal damages, but the court did not make, and neither party requested, any findings of fact or conclusions of law.

On appeal, Kohler complained that he was denied a court reporter at trial.  The Court of Appeals ruled that the trial court erred by failing to provide a court reporter, but Kohler failed to preserve error because he did not object at trial.  For proper preservation, Kohler should have objected at trial as soon as he realized there was not a court reporter.  Because Kohler did not object, the trial court did not have an opportunity to rule on the matter and correct it if possible.   As the error was not preserved, the court overruled the issue.

The opinion is here.

 

The Amarillo Court of Appeals recently issue an opinion in In re Lagaite, in which the Court dismissed the petition for writ of mandamus for want of jurisdiction.  The petitioner complained of medical treatment he received while incarcerated in a Texas prison and evidently named the medical doctor as the respondent.  Noting that Texas Government Code Section 22.221(a) and (b) grant mandamus jurisdiction to protect an appellate court’s jurisdiction or to issue writs against a district or county court judge, the court of appeals concluded it did not have jurisdiction.  The Court’s opinion may be found here.

I had a similar issue come up in an appeal I handled many years ago and I recall that there were a few cases out there in which mandamus had issued against persons other than a district or county court judge and protection of the appellate court’s jurisdiction was not in issue.  I would be interested in hearing from any of our readers whether they are familiar with other cases in which a court of appeals issued a writ of mandamus against someone other than a district or county judge and protection of the appellate court’s jurisdiction was not in issue.

 

 

 

On Thursday, October 1, 2009, the Appellate Sections of the Dallas, Tarrant, and Collin County Bar Associations will present "Practice Tips fron the Clerk’s Office" and "A Candid Conversation between Appellate Judges and Lawyers."   The CLE is scheduled from 4:30-6:00 p.m. at the Omni Hotel, 1300 Houston Street in Fort Worth,  with a reception to follow.  The event will feature the Clerks of the Dallas and Fort Worth Courts of Appeals, as well as Justices Walker and McCoy from Fort Worth, and Justices FitzGerald and Murphy from Dallas.  For more information contact David Pratt at 817-336-2400 or dpratt@deckerjones.com.

On Thursday, October 15, 2009, the Dallas Association of Young Lawyers will be hosting a one-hour seminar at the Belo Mansion in Dallas in which Fifth Circuit Court of Appeals Judge Catharina Haynes, Dallas Court of Appeals Justice Carolyn Wright, Haynes & Boone appellate section chair Nina Cortell, and appellate solo Chad Ruback will share tips about the practice of appellate law.  The seminar is intended for non-appellate lawyers and those new to the practice of appellate law, but could also be a useful refresher for experienced appellate practitioners.  There is no charge to attend, and lunch will be available for purchase in the buffet line.

On Friday, October 16, 2009, the Appellate Section of the Collin County Bar Association  will present "Persuading Judges: Practical Tips on Oral and Written Advocacy."  The CLE is scheduled for noon at Ralph & Kacoo’s Restaurant in Allen, Texas.  The event will feature a panel consisting of Justices Wright, O’Neill, and Fillmore from the Dallas Court of Appeals.  For more information contact Byron Henry at 214-672-2156 or bhenry@cowlesthompson.com.

 

 

The month of October is loaded with opportunities for lawyers to earn CLE credit and meet court of appeals’ justices.

 What is the legal effect of a provision voiding a contract?  This was the issue in the Fourth Court of Appeals case Mr. W. Fireworks Inc. v. Ozuna.

In the case, Mr. W, between September of 2002 and February of 2003, contracted for the exclusive right to sell firework on the land of three different property owners.  Each contract provided two key provisions: (1) the contract was voidable if fireworks became unlawful during the term of the contract; and (2) the lessors agreed not to sell or lease a part of their property to any of Mr. W’s competitors for ten years after the lease was terminated. 

Although Mr. W originally was able to sell fireworks at all three locations, by January of 2006, it was no longer legal to sell fireworks on any of them, and thus the contract was void.  In March of 2008, however, the city of San Antonio disannexed the lessors’ properties allowing them to sell fireworks on their property again.  The three lessors then contracted with Alamo Fireworks, Inc., one of Mr. W’s competitors, to sell fireworks on their property.

When Mr. W learned of the new contracts it sued the three lessors for breach of contract.  Mr. W argued that "[t]he phrase ‘shall become void’ was a ‘contingent limitation’ that created ‘a voidable agreement, which the restrictive covenant [ten-year restriction] survive[d]."  In other words, the contracts terminated as to the lease, but not as to the ten-year restriction.  The lessors successfully moved for summary judgment arguing the entire contract was void, including the ten-year restriction.  Mr. W appealed.

Was the ten-year restriction enforceable in light of the "void" language?

No, according to the San Antonio Court of Appeals.  As the court explained, when a contract is voidable, it means that the contract may either be set aside or enforced in its entirety.  In other words, Mr. W cannot argue that the illegalization of fireworks made the contract voidable as to its lease obligation, but not to the ten-year restriction.  Thus, the San Antonio Court of Appeals affirmed the trial court’s judgment that the entire agreement was void.

Here is the opinion.

The Dallas Court of Appeals recently held that local rules that are inconsistent with the TRCP are not enforceable.  The case involved a summary judgment response that was supposedly filed and served seven days prior to the summary judgment hearing.  The trial court struck the response for failure to comply with Dallas Local Rule 2.05.  Local Rule 2.05 requires that documents relating to matters set within seven days of filing must be served in a manner to ensure receipt by the opposing party the same day the papers are filed.  The opinion does not mention how the document was filed or served.  Relying on TRCP 3a, the court of appeals held that Local Rule 2.05 was not enforceable to the extent it mandates a different "type of service than that prescribed by rule 21a."

Does Local Rule 2.05 really require a "different type of service"?  It seems to do no more than ensure that in the event a party hand delivers a response or reply to the court, it will deliver the documents to its opponent in a similar manner thus avoiding the situation in which the court receives a document and has time to review it prior to the hearing but the opposing party does not.  I thought the Texas Supreme Court reviewed and approved local rules?  If so, why?  The court’s opinion in Esty v. Beal Bank S.S.B. can be found at this link.  Other local rules may be affected as discussed below. 

Continue Reading Are Some Local Rules in Jeopardy?