On Tuesday, November 4, 2008, the Tarrant County Appellate Law Section will be honoring retiring Justice Dixon Holman.  The luncheon to honor Justice Holman will take place at the Petroleum Club beginning at noon.

The cost is $20 for members and $22 for non-members and walk-ins. 

RSVP to Sherry at 817-338-4092 or sherry@tarrantbar.org

A plaintiff sued a defendant for breach of contract. Instead of serving the defendant, the plaintiff served the Secretary of State. As the time for answering lapsed, the trial court sent notice of dismissal to the parties (according to Texas Rule 165a ) warning them of dismissal if no answer was filed by a specified deadline.

When the deadline passed with no answer, the court dismissed the case for want of prosecution. After the dismissal, the defendant’s attorney received notice that the Secretary of State had been served with the underlying lawsuit. A few days later, the court reinstated the suit sua sponte and eventually entered a default judgment in the plaintiff’s favor.

Was the defendant properly served?

The Fifth Court of Appeals, in DC Controls, Inc. v. UM Capital, L.L.C., explained that service after a case has been dismissed for want of prosecution is defective. Because the defendant did not receive notice until after the court dismissed the suit, regardless of the fact that the court reinstated the suit days later, the Court of Appeals held that service was defective and an error apparent on the face of the record, and thus reversed the default judgment and remanded the case for further proceedings.

There are three holdings in DiGiuseppe v.Lawler that are noteworthy.  First, the Texas Supreme Court, reaffirms the principle that a party who obtains a favorable judgment need not file a separate notice of appeal to preserve its right to judgment on a lesser alternate ground of recovery in the event an appellate court reverses the trial court’s judgment.

Second, the majority (5-4) holds that a party seeking specific performance has the burden to plead and prove that he he was ready, willing, and able to perform the contract at the time his performance was due.

Finally, the majority holds that a finding of "ready, willing, and able" could not be deemed under Rule 279 when no "ready, willing, and able" question was submitted to the jury.  The plaintiff did not conclusively establish this essential element on the evidence submitted.  And, a finding could not be deemed because there must be at least one element of the ground of recovery submitted to the jury and that element must be "necessarily referable" to that ground of recovery.  The court concluded that the finding as to whether the plaintiff complied with the contract is not essential to, or necessarily referable to, the plaintiff’s claim for specific performance.  Accordingly, the plaintiff failed to obtain findings necessary to support specific performance.  The majority opinion may be found at this link.  Justice Green’s dissenting opinion may be found here.  For other insightful comments regarding this opinion, see Todd Smith’s blog or Don Cruse’s blog.

The Texarkana Court of Appeals held that a no-evidence motion for summary judgment need only identify the challenged element in order to comply with Rule 166a(i).  Plaintiff argued that the motion must list all of the elements and identify the challenged element(s).  The court of appeals disagreed and held the motion sufficient if it "merely reference[s] the element on which there is no evidence,"  in this case cause-in-fact.  The opinion in Driskill v. Ford Motor Co. can be found at this link. 

A divided panel of the Amarillo Court of Appeals held that a dismissal with prejudice operates as an adjudication on the merits for purposes of res judicata even if the trial court erred by including the phrase "with prejudice" in the dismissal order.  The majority followed Amarillo precedent while the dissent called for it to be overruled.  Because the Amarillo court has only four justices, it is unlikely that the dissent could muster the three votes necessary to overturn the controlling precedent en banc.  The majority opinion in Rodriguez v. ICON Benefit Administrators, Inc. can be found at this link.  Justice Pirtle’s dissenting opinion can be found at this link.

Welcome to the Cowles & Thompson Appellate Blog.  We created this blog with the goal of providing useful information to civil appellate practitioners and to the public at large.  We anticipate that we will be posting information relating to significant appellate opinions from Texas appellate courts (inclusive of the Supreme Court of Texas).  Of course, we will also call attention to U.S. Supreme Court opinions and Fifth Circuit opinions  that have particular impact on Texas appellate practitioners. 

In addition to focusing attention on appellate court opinions, we will post notices relating to important events that impact appellate practitioners, such as relevant continuing education seminars, proposed changes to the rules of appellate procedure, and meetings of appellate sections.  Because much of our own practice takes place in the North Texas area, our postings of events and meetings will likely focus on events taking place in North Texas.

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In this mandamus action, the Eastland Court of Appeals held that federal tax returns are not relevant or material to the issue of the defendant’s net worth.  While the court of appeals held that a plaintiff seeking exemplary damages need not make a prima facie showing of entitlement of exemplary damages in order to obtain discovery on net worth, it held that tax returns do not reflect net worth.  The court also held the trial court abused its discretion by ordering production of  "all documents that evidence or reflect net worth" because it was overbroad.   The court of appeals’ opinion in In re House of Yahweh can be found at this link. 

The Houston (First) Court of Appeals held that a plaintiff cannot restart the clock on the 120-day deadline to serve an expert report pursuant to Chapter 74.  The plaintiff nonsuited its case prior to the expiration of the deadline.  The plaintiff refiled the suit and filed an expert report within 120-days of the new filing.  Relying on a prior decision, the court held:

"[A]llowing a plaintiff to re-start the period for serving an expert report by non-suiting his claim and then subsequently refiling the same claim effectively expands the expert report peiod well beyond 120 days, which is inconsistent with the policies and goals of the statute.

Consequently, the court of appeals affirmed the dismissal of the plaintiff’s case.  The Court of Appeals’ opinion in Runcie v. Estate of Dorothy Runcie can be found at this link. 

The defendant moved for summary judgment on the plaintiff’s claims based on the statute of limitations. To show the accrual date, the defendant attached several documents to his motion. But the defendant’s motion did not specifically identify where the evidence was in those documents. Did this meet the summary judgment requirement that a party must specifically identify its proof in the motion?

According to the Amarillo Court of Appeals, in West v. Hamilton, the answer is "no." The court held that generally referencing documentary evidence in a motion does not relieve the movant from the duty to direct the trial court and the non-movant specifically to where the issues are located in those documents, even if the documents are not voluminous.

The specificity requirement directs the movant to provide "fair notice" of the summary judgment contentions and refer the court and parties to the evidence on which the movant is relying for judgment. Because the defendant in this case failed to specifically direct the court and the plaintiff to the evidence he relied on to prove the accrual date, his summary judgment victory in the trial court was reversed on appeal.

 "The overarching question before the en banc Court is whether a writ of mandamus should issue directing the transfer of this case from the Marshall Division of the Eastern District of Texas–which has no connection to the parties, the witnesses, or the facts of this case–to the Dallas Division of the Northern District of Texas–which has extensive connections to the parties, the witnesses and the facts of this case."

So begins the majority opinion in a case addressing whether mandamus is appropriate to correct a district court’s ruling on a motion to transfer venue pursuant to 28 USC sec. 1404(a).  By a 10-7 vote, the United States Court of Appeals for the Fifth Circuit answered in the affirmative and ordered the case transferred.  The majority and dissenting opinions in In re Volkswagen of America, Inc. can be found at this link.