The Beaumont Court of Appeals recently addressed the difference between judicial estoppel and a judicial admission.  Plaintiff filed a claim with the EEOC and brought suit against defendant for gender discrimination.  After her federal suit was dismissed, she sued the defendant in state court for unlawful termination based on her refusal to perform an illegal act.  Defendant sought summary judgment arguing that plaintiff’s federal pleading consituted a judical admission that plaintiff had been fired because of her gender.  In deciding the case, the court of appeals noted that the defendant moved for summary judgment on the basis of plaintiff’s alleged judicial admission, but the plaintiff’s response only addressed judicial estoppel.   The court explained the difference:

Judicial admission and judicial estoppel are separate principles.  Judicial estoppel is a rule of procedure based on justice and sound policy that bars a party from taking a position inconsistent with one taken in a earlier proceeding.  A judicial admission, by contrast, results when a party makes a statement of fact which conclusively disproves a right of recovery or defense currently asserted.

The court then held that plaintiff’s statment in her federal pleadings that she was fired for gender discrimination constituted a judicial admission barring recovery on her state claim under Sabine Pilot that she was fired for refusing to perfom an illegal act.  The court affirmed summary judgment for the defendant.  The court’s opinion in Louviere v. Hearst Corp., can be found at this link. 

 

Howard Bashman over at How Appealing had a post yesterday regarding an Eleventh Circuit decision denying a petition for rehearing en banc on the issue of whether obtaining an extraordinary result justifies increasing attorney’s fees awarded under various federal statutes.  The order denying rehearing en banc, with multiple dissents, can be found at this link. The orginal panel decision consisting of three separate opinions can be found at this link.

Texas voters elected (or re-elected) a slate of judges in the state on Tuesday.  Last week we posted a list of the appellate court races in the state. 

A list of the winners in those appellate court races is displayed below.  The final, official figures are not yet posted, but most of these outcomes are unlikely to change.

For additional statewide results, check with the Texas Secretary of State’s election’s webpage.

 

Continue Reading Election results from appellate court races

The Amarillo Court of Appeals recently held  that a party may be ordered to sign a medical records authorization in response to a request for disclosure pursuant to TRCP 194.2.  The defendant served a request for disclosures including a request for execution of an authorization to release medical records under Rule 194.2(j).  The plaintiffs argued they could respond by either producing the medical records or executing an authorization permitting  the release of  medical records.  The trial court disagreed and ordered the plaintiffs to execute the authorizations.  Plaintiffs sought mandamus relief from the court of appeals.  In denying the plaintiffs’ petition, the court of appeals stated that "the option belongs to the party requesting disclosure, not the one responding to it.  If a legitimate request is sought, then the respondent cannot unilaterally comply with the request by simply delivering selected medical records."  The court’s opinion in In Re Soto can be found at this link.  

What is the proper procedure to preserve error when a trial court refuses to rule on a motion for default judgment?

In Old Republic Insurance Co. v. Sisavath, the trial court refused to rule on the plaintiff’s motion for default judgment and eventually dismissed the case for want of prosecution. 

On appeal, the plaintiff argued that the trial court improperly denied the motion for default judgment. 

The Dallas Court of Appeals, however, explained that the court did not deny the motion, it merely returned the proposed default judgment unsigned and identified several items for the plaintiffs to ameliorate before it could sign the judgment. To complain on appeal that the trial court refused to rule on a motion, the record must show that the complaining party objected to the refusal. But the record was void of any objections to the trial court’s refusal to sign the default judgment. Thus, the error had not been preserved for appeal. 

The Dallas Court of Appeals held that a pro se letter from an Illinois resident denying liability and requesting an extension of time to retain counsel and file a "complete answer" waived the defendant’s subsequent special appearance.  The defendant argued that the letter did not consitute an answer.  The court held that  the letter constituted an answer.  Because an answer constitutes a general appearance, the court held the defendant waived any challenge to the trial court’s personal jurisdiction.  The court’s opinion in Triad Realty Servs., Ltd. v. Green can be found at this link.

In a case involving application of the mandatory venue provision in section 15.011 of the Texas Civil Practice and Remedies Code, the Dallas Court of Appeals held that a suit to remove a lis pendens constitutes an action to quiet title.  The Court, therefore, held that "[o]nce it is demonstrated that the court’s judgment would have some effect on an interest in land, then the venue of the suit is properly fixed under the mandatory venue statute."  The trial court had denied the defendant’s motion to transfer venue to Harris County (where the land was located) and rendered judgment on behalf of the plaintiff.  The court noted that "a trial court’s erroneous denial of a motion to transfer venue is not harmless and requires reversal of the judgment and remand for new trial."  Accordingly, the court of appeals reversed and remanded the case with instructions to transfer the case to Harris County.  The court’s opinion in Airvantage, L.L.C. v. TBAN Props. #1, L.T.D. can be found at this link. 

To all you appellate gurus out there, here’s an appellate procedure question: When does the court of appeals’ mandate issue when the Texas Supreme Court has denied a petition for review and subsequently denied a motion for rehearing of the petition for review?

TRAP 18 controls issuance of the appellate mandate.  The timetable is based upon the steps a party is entitled to take after the court of appeals renders its judgment.  But there are no other steps to take after the Texas Supreme Court denies a motion for rehearing of a petition for review.  Or are there?  Should the mandate issue ten days after the denial of the motion for rehearing of the petition for review (because that’s the amount of time added to the expiration of the other steps)?  Should its issuance be tied to the timetable for filing of a petition for writ of certiorari in the United States Supreme Court?  What do you think?

In a longstanding dispute over which agency has the authority to regulate engineers, the Austin Court of Appeals recently held that the Texas Society of Professional Engineers (Society) lacked standing to bring suit against the Texas Board of Architectural Examiners (Board) on behalf of its members because it failed to meet the test for associational standing.  The court of appeals applied the test set forth by the Texas Supreme Court in Texas Association of Business v. Texas Air Control Board:

[A]n association has standing to sue on behalf of its members when (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.

Because the Society failed the third prong, the court of appeals affirmed the trial court’s dismissal for lack of standing.  The court of appeals’ opinion in Texas Society of Professional Engineers v. Texas Board of Architectural Examiners can be found at this link.

 

We elect our judges in Texas.  We can debate the pros and cons of selecting judges by election, but that doesn’t change the fact that we are in the middle of an election now.   Early voting goes through Friday, October 31st.  You can vote at any early voting location and all you need to vote is a valid driver’s license.  If you can’t vote early or don’t want to, Election Day is Tuesday, November 4th.  To find your polling place for election day, follow this link.

Under this system of judicial selection, the best way to ensure selection of quality judges is an informed electorate.  To that end, here’s a list of appellate candidates for judicial office with links to help you better educate yourselves.

 

Continue Reading Get Informed and VOTE!