Insight & Commentary on Texas Appellate Law
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…
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…
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
“attorney’s fees” preservation “segregation of fees”…
Continue Reading Attorneys’ fees recovery and preservation of segregation complaint
The Amarillo Court of Appeals‘ opinion in Block v. Mora could be a law school exam question. The opinion may be especially important to jury charge junkies. Here are the essential facts:
Plaintiff places a spare tire on top of four 5-gallon buckets of hydrolic oil in the bed of his pickup truck. He does not secure the tire. Later that day, Defendant pulls her vehicle in front of Plaintiff’s pickup truck, causing her to collide with the front end of his truck. On impact, the spare tire is propelled forward through the truck’s rear window, stricking Plaintiff in the back of the neck and shoulder and causing him injury. Defendant admits that she was driving her mother’s vehicle without permission, she had no driver’s license, and the accident was her fault.
Plaintiff sues Defendant and Defendant asserts the affirmative defense of contributory negligence. The trial court submits the following jury question:
Did the negligence, if any, of those named below proximately cause the injuries, if any, to Defendant?
Answer “Yes” or “No” for each of the following:
a. Defendant _______________
b. Plaintiff _______________
The jury answers "Yes" for Plaintiff and "No" for Defendant and the trial court renders a take-nothing judgment. On appeal, Plaintiff complains that his negligence should not have been submitted because there was no evidence he was contributorily negligent.Continue Reading Proportionate Responsibilty: What is contributory negligence?
The Waco Court of Appeals recently held, once again, that parties should obtain written orders on objections to summary judgment evidence in order to preserve error for review on appeal. The Court went on to analyze when rulings are implicit and held that while rulings can be inferred, they can only be inferred from the record…
The Houston Fourteenth District Court of Appeals highlighted a split of authority in the courts of appeals regarding waiver of immunity in the Texas Whistleblower Act. In Galveston ISD v. Jaco, the Court considered the question of whether immunity from liability is coextensive with immunity from suit under the Whistleblower Act. The Court…
Does a party waive its right of appellate complaint by failing to bring an interlocutory appeal when a right of interlocutory appeal exists? At least one court of appeals has answered that question in the affirmative and one court has answered that question in the negative. It now appears that the Dallas Court…
In what appears to be a case of first impression, the Dallas Court of Appeals held that sections 33.012(a) and 41.0105 of the Civil Practice and Remedies Code should be harmonized by applying section 33.012(a)’s "damage" reduction before section 41.0105’s "recovery" limitation. In an opinion by Justice Moseley, the Court reasoned that because section 33.012(a) applies to the assessment of damages…
The San Antonio Court of Appeals recently held that the two-year statute of limitations for health care liability claims in section 74.251 of the Civil Practice and Remedies Code cannot be extended by any other law, including section 33.004(e). The Court focused on the unambiguous language of section 74.251 that the two-year statute applies "notwithstanding…
