Insight & Commentary on Texas Appellate Law
When should a party specially except to the grounds of a summary judgment motion? Should the non-movant specially except when the grounds are ambiguous? Or if the grounds are not expressly present?
The Dallas Court of Appeals addressed this issue in Garza v. CTX Mortgage Company, LLC.
The Garzas sued CTX for various causes…
How effective is a motion for summary judgment that has no evidence attached to it? Not very. Sometimes you can dodge a few bullets. Ultimately, you will get hit. That’s what happened in the Dallas Court of Appeals’ opinion in American Board of Obstetrics and Gynecology, Inc. v. Yoonessi.
The American Board of…
When a party (or the party’s attorney) does not receive actual notice of an adverse judgment within 90 days of that judgment, the party may make use of Texas Civil Procedure Rule 306a to extend deadlines for filing a motion for new trial or to appeal. But its important that the party invoking Rule 306a…
The Texas Supreme Court recently held that Rule 193.6 of the Texas Rules of Civil Procedure applies to summary judgment proceedings. Thus, any discoverable information, including expert information under Rule 194, that has not been properly disclosed or supplemented, should be excluded. The Court stated that "the ‘hard deadline’ established by the pretrial discovery rules ensures that the…
The more time you spend studying City of Dallas v. Dallas Morning News, the more I.Q. points you lose. This case may be more important for what it doesn’t answer than for what you hope it will answer.
The primary issue in this appeal is whether e-mails that are sent to and from private e-mail addresses of the Mayor and other city officials and which involve matters of official public business, are public information and subject to the Texas Open Records Act.Continue Reading Open Records Act and its Application to E-mail
I’ve wanted to write something about Boenig v. Starnair, Inc. since I first read it because I believe the analysis is incorrect.
This case involves the intersection of the responsible third party statute and a statute of repose.
Boenig sued contractor Pulte in November 2005 for injuries she allegedly sustained when she fell through the attic floor of a home Pulte built. On July 19, 2007, Pulte filed a motion for leave to designate Starnair as a responsible third party. Starnair was a subcontractor that performed the heating, ventilation, and air conditioning installation in the home. On August 23, 2007, Boenig filed her fourth amended petition in which she joined Starnair as a defendant.
Starnair moved for summary judgment in reliance upon the ten-year statute of repose set out in Civil Practice and Remedies Code Section 16.009. The trial court granted the motion and Boenig appealed.Continue Reading Responsible Third Party Statute and Statutes of Repose
Can the non-movant in a summary judgment context use the movant’s evidence (attached to support a traditional motion for summary judgment) to challenge no-evidence grounds for summary judgment on appeal?
According to the El Paso Court of Appeals, the answer is "no."
Continue Reading Combining No-Evidence Motions for Summary Judgment with Traditional Motions
The San Antonio Court of Appeals has held that a party challenging a default judgment may well risk losing the opportunity to challenge the exercise of personal jurisdiction over him unless special precautions are taken.
In Boyd v. Kobierowski, Kobierowski, a Texas resident, sued Boyd, a California resident, in Texas for breach of contract, fraud, misrepresentation and DTPA violations. All causes of action arose from the sale of a vehicle Boyd sold to Kobierowski.
Boyd did not answer the suit and Kobierowski took a default judgment against Boyd. Boyd subsequently filed a restricted appeal to challenge the default judgment. He prevailed on appeal because of a defect in personal service. See Appeal No. 04-06-0041-CV.
On remand, Kobierowski repeatedly tried to get Boyd to answer the suit, but Boyd did not respond. Kobierowski then took a second default judgment. Boyd subsequently filed a special appearance and a motion for new trial subject to the special appearance. The trial court denied the special appearance, but granted the motion for new trial. In a second (interlocutory) appeal, Boyd argued that it was error to deny his special appearance.Continue Reading Waiver of Special Appearances in Default Challenges
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…
Cleantech filed a suit on sworn account on July 10, 2007, against Eugene Owens. On August 13, 2007, Mr. Owens handwrote and signed a letter to the court that stated "Please be advised I am employing an attorney for case number 07-1267-336." Mr. Owens included his address on the letter, but he did not include a…
