I ran across this interesting opinion from the Federal Third Circuit Court of Appeals.  I am reporting on it because the Fifth Circuit apparently has not yet commented on this damage recovery and the issue could impact Texas state law.

In Eshelman v. Agere Systems, Inc., No. 05-4895, the Third Circuit Court of Appeals holds that a plaintiff in a disability discrimination case may recover an additional sum of money to pay for taxes that the plaintiff might be subject to as a result of receiving an award for back pay.  Back pay awards are taxable in the year paid.  To the extent such an award might push the plaintiff into a higher tax bracket causing the plaintiff to pay additional taxes, the Court holds that the plaintiff can recover an additional sum to compensate her for that additional tax burden.  In arriving at this result, the Court joins the Tenth Circuit in that result.  The District of Columbia Circuit reached a contrary result.

As part of its reasoning, the Third Circuit Court observes that the Americans with Disabilities Act  gives the courts broad equitable powers to effectuate the purpose of making the plaintiff whole.  This reasoning may be critical to the Court’s logic and to its power to fashion this remedy.  Given that the Texas Commission on Human Rights Act is largely patterned after federal law, it is conceivable that a similar argument might find its way into Texas courtrooms.  The opinion may be found at this link.

The Houston Fourteenth District Court of Appeals recently held that the Property Owner Rule applies to corporate owners.  The Property Owner Rule is the rule of law that allows a property owner who is familiar with the market value of his property to testify regarding the market value, even if he is not qualified as (or designated as) an expert.

In Speedy Stop Food Stores, Ltd. v. Reid Road Municipal Util. Dist. No. 2, Justice Kem Frost, writing for the majority, observes that the Texas Supreme Court has not addressed the issue of whether a corporate owner may attest to the market value of its property and the courts of appeals are split on the issue.  The majority opinion asserts that the Waco and Corpus Christi appellate courts permit corporate owners to testify to market value, while Fort Worth does not.  The Houston Fourteenth Court of Appeals holds that the Property Owner Rule applies to corporate entities where there is a representative familiar with the market value of the property.  The majority opinion may be found at this link.

Justice Seymore writes a dissent asserting that existing Texas Supreme Court law controls and argues that a corporate representative is not the "owner."  The dissent further challenges the majority’s characterizations of the Corpus Christi and Waco opinions on the subject matter.  The dissent maybe found at this link.

Given the dissenting opinion, an argued conflict among the courts of appeals, and the lack of a clearly dispositive opinion from the Texas Supreme Court, this case may bear following should a petition for review be filed.

A court appointing a receiver has exclusive jurisdiction over property subject to the receivership. When does the court’s exclusive jurisdiction end? The court must either relinquish its jurisdiction or order the receiver to restore the property to those entitled to it.

Proper relinquishment of exclusive jurisdiction was the main issue of a recent San Antonio Court of Appeals case: Chimp Haven, Inc. v. Primarily Primates, Inc. You can read the opinion here.

 

 

Continue Reading Court Doesn’t Monkey Around With Exclusive Jurisdiction

The Dallas Bar Appellate Law Section has its next monthly meeting on Thursday, February 19th, at noon at the Belo Mansion.   The section will host Fifth Circuit Judge Katarina Haynes and Dallas Court of Appeals Justice Mary Murphy to discuss their experiences so far on their respective appellate courts.

Later that same day, the Collin County Bar Appellate Section is hosting a happy hour in honor of Justice Mary Murphy.  This event will be at Fireside Pies in Plano at Legacy and the Dallas North Tollway from 5:30pm to 7:00pm.

 Void orders of a trial court may occur in a number of different circumstances.  The Corpus Christi Court of Appeals discusses one such circumstance in Silguero v. State.

The trial court dismissed the State’s action for forfeiture for want of prosecution and the State timely filed a motion to reinstate, but the motion was not verified.  More than 30 days after the dismissal, the trial court granted the motion to reinstate.  The trial court subsequently rendered a judgment of forfeiture and the Silgueros filed an appeal as well as a petition for writ of mandamus, each asserting that the trial court’s order of reinstatement was void.

Continue Reading Challenging Void Orders and Motion to Reinstate

As some of you may already know, this year America is celebrating the bicentennial of Abraham Lincoln’s birth.   

To that end, the Writer’s Studio/Writer’s Garret is sponsering a free event. Come hear historian James McPherson discuss Tried by War: Abraham Lincoln as Commander in Chief, a celebration and tribute to the life of Abraham Lincoln.

The event is Scheduled for Wednesday, February 11, 2009 at noon at Theatre Three located at 2800 Routh Street, #168, Dallas, Texas, 75201.

James McPherson is a noted American Civil War historian and author.  He wrote the Pulitzer Prize winning Battle Cry of Freedom.

 

Dallas Court of Appeals.

Urban Television Network Corp. v. Creditor Liquidity Solutions, L.P., No. 05-07-01629-CV.

 

Westar Satellite Services, L.P. and Urban Television Network Corporation entered into a five year services agreement. The agreement contained a liquidated damages clause. After two years, Urban Television defaulted on its obligations and Westar sued to enforce the liquidated damages clause.

 

Urban Television tried to invalidate the liquidated damages clause by claiming it was an unenforceable penalty. A line of cases starting in the 1970’s allowed parties to invalidate liquidated damage clauses if they applied equally to the breach of trivial clauses as well as material clauses. Thus, attorneys now search a contract for any minor promise that could potentially trigger liquidated damages in hopes of declaring the provision a penalty.

 

The usual target of these searches is a provision usually found in contracts that provides for termination for basically any promise made in the contract. These general provisions are put in contracts to protect the drafting attorney from inadvertently failing to specify an important promise that could trigger liquidated damages. However, such provisions are so all-encompassing that any minor promise in the contract could be construed to trigger liquidated damages. Thus, attorneys would get rulings invalidating the clauses where they could find broad termination clauses that would include minor promises.

 

In this case, the Westar contract avoided such a problem by inserting “material” into the termination clause so as to read ‘either party fails to perform or observe any material term or obligation…” (Emphasis added). By adding “material,” the termination clause excluded any trivial promises that may have been in the contract.  That key distinction made the liquidated damages provision enforceable and allowed Westar to win summary judgment in the trial court and affirm that judgment on appeal.

 

The opinion can be read here.

The Dallas Court of Appeals recently held that a provision calling for application of the Texas General Arbitration Act necessarily excludes application of the Federal Arbitration Act.  First, the Court held that because the motion to abate was made under  the FAA, the Court had jurisdiction to review the trial court’s order by mandamus.  Next, the Court acknowledged the Texas Supreme Court’s test that a general choice of law clause will not be read to exclude federal law unless the clause "specifically excludes the application of federal law."  Third, the Court acknowledged that the FAA generally controls transactions involving interstate commerce.  Lastly, the Court held that the parties excluded application of federal law by agreeing that the Texas General Arbitration Act applied.  The Court noted that a general choice of law provision does not specifically exclude  federal law because "the FAA was part of the substantive law of Texas."  Nevertheless, by naming the Texas Act, the parties excluded the FAA.  The Court’s opinion in In re Olshan Foundation Repair Co., L.L.C. can be found at this link.

On Wednesday, February 11, 2009, Chief Justice Wallace Jefferson will deliver the State of the Judiciary address in the House Chamber in the State Capitol.  Often the State of the Judiciary address lays out a theme and what the Judiciary hopes to obtain from the legislature in the way of funding or legislation during the particular legislative term, so the speech will be worth following to see what priorities the Chief lays out.

In probate proceedings it is not always clear when the court has rendered an appealable order.  Probate proceedings can produce multiple final, appealable orders.   The San Antonio Court of Appeals recently addressed one of those circumstances in In re Guardianship of Glasser. 

In Glasser, the Probate Court appointed litigation counsel to help an Attorney Ad Litem in a guardianship proceeding.  The court’s appointment order approved employment of litigation counsel and ordered that costs associated with the representation would be paid by the estate after being presented to the court and approved.  The court subsequently signed two orders approving fees and a final order at the conclusion of the proceeding approving fees and discharging the attorney ad litem and the litigation counsel.  The temporary guardian appealed the fee orders and the ad litem and litigation counsel sought dismissal, contending that the appeal was untimely because the court’s initial orders of appointment and approval of fees were final, appealable orders at the time they were signed. 

The Court of Appeals disagreed, noting that the order of appointment simply set the stage for what followed and did not resolve a particular phase of the case.  The parties and the court understood and intended that there would be interim fee awards and that all awards were subject to a final hearing.  Accordingly, the interim orders were not final and appealable. 

Continue Reading Finality in Probate proceedings and Attorney Ad Litem Fees