Insight & Commentary on Texas Appellate Law
"A dissent does many things—it pinpoints perceived faults in the Court’s opinion, it speaks to a future Court, it may suggest a legislative fix—but it is not the law." In his dissenting opinion, Chief Justice Jefferson argues that stare decisis mandates that the majority not adopt his dissent in a previous case.
Six years ago…
In a 6-3 opinion, the Texas Supreme Court held that requests for admissions sent to an insurance carrier in one capacity cannot be used against it in different capacity. USF&G appeared in two capacities represented by two different law firms–as a defendant to the insured’s claim under the underinsured motorist policy and as subrogee to…
Ever wonder what it takes to get an Appellant’s appeal dismissed? The Dallas Court of Appeals has given us the answer in at least two circumstances, one involving defective briefing and one involving a failure to make arrangements to pay for an appellate record.
In Bridwell v. McMillin, the Court granted what appears to be a 60-day extension of time to file an Appellant’s Brief. Later, the Court granted a second extension of time to file the Appellant’s Brief–this time for 30 days. The Appellant filed his Appellant’s Brief 9 days early, but it contained a number of briefing deficiencies. The Court ordered the Appellant to correct the briefing deficiencies within 10 days or his appeal would be dismissed. By letter, the Appellant requested that the Court treat his defective brief as his amended brief–in effect refusing to correct the deficiencies. In response, the Appellee moved to dismiss the appeal for non-compliance with the Court’s order. The Court granted the motion to dismiss. The Court’s Memorandum Opinion in Bridwell can be found at this link.Continue Reading Appellate Dismissals in Dallas
In an interesting opinion regarding dominant/servient jurisdiction and abatement, the Houston (First) Court of Appeals made this observation regarding the proper relief on a motion to abate:
Generally, the proper relief on a motion to abate on the ground of dominant jurisdiction is abatement. . . . However, there is also authority that that if a party
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The Dallas Court of Appeals recently held that CPRC 12.002 prohibiting use of a fraudulent court record or lien requires evidence of intent to cause harm at the time of filing the alleged fraudulent record or lien.
In this case, the Plaintiff argued that Defendant’s (an attorney) knowledge of lien law satisfied the knowledge element; and "common knowledge" that…
The U.S. Supreme Court has agreed to consider the case of Caperton v. A.T. Massey Coal Company, involving a judicial recusal in West Virginia where judges are elected. The precise question presented is "whether Justice Benjamin’s failure to recuse himself from participation in his principal financial supporter’s case violated the Due Process Clause of …
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…
The Fort Worth Court of Appeals issued a couple of opinions in Young v. Thota addressing an alleged jury charge error. In this medical negligence case, the alleged charge error relates to whether the trial court should have submitted an issue asking whether the plaintiff was contributorily negligent or whether the plaintiff’s acts raised mitigation of damages questions. The majority concludes that it…
In an otherwise lengthy opinion, the Fort Worth Court of Appeals provided a reminder to civil practitioners regarding the difference between failure of consideration and lack of consideration. The Court noted:
[L]ack of consideration refers to a contract that lacks mutuality of obligation. Failure of consideration, however, occurs when, due to a supervening cause after
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With its opinion in In re Butler, the Dallas Court of Appeals reminds us that there has been an important change to mandamus procedure. Appellate Rule 52.3 was amended effective September 1, 2008, and now requires a certification by the person filing the petition for writ of mandamus that he or she has reviewed…
