Texas Appellate Lawyer & Attorney : D. Todd Smith Law Firm : Appeals, Sanctions, Summary Judgment : Austin, Texas

The West Texas town of Eldorado is more than 200 miles from Austin.  So imagine my surprise when I realized that any appeals coming out of the drama surrounding the Fundamentalist Church of Jesus Christ of Latter Day Saints "Yearning for Zion" Ranch (which the ABA Journal describes as "what surely will be among the largest child custody cases in U.S. history") will be heard by the Third Court of Appeals, right here in the Live Music Capital of the World.

Surprisingly few Texas family law bloggers have weighed in on the FDLS matter.  I'm sure some of them were among the hundreds who volunteered to serve as court-appointed ad litems in more than 100 child removal cases the State filed in the 51st District Court (which serves Schleicher County and nearby Tom Green County, among others).  What an incredible effort.

It will be interesting to see how the appeals will be handled logistically.  Some of the attorneys involved have identified Judge Barbara Walther's decision to hear the State's evidence en masse, rather than child-by-child, as a potential ground for reversal.  I suspect the challenges arising from the sheer numbers will carry over into the appellate court to a significant degree.

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The Texas Supreme Court issued 11 decisions, all but three of them per curiam, with this week's orders.  They are:

• In re H.V. (No. 06-0005), a juvenile justice case involving the suppression of evidence and appellate review under Section 56.03(b) of the Texas Family Code.
  
  
• Lewis v. Funderburk (No. 06-0518), resolving a 12-2 split among the intermediate courts of appeals and concluding that those courts have jurisdiction to review allegedly inadequate expert reports in health care liability cases.
  
  
• Following Lewis and reversing contrary decisions from the Fort Worth and Waco courts, the supreme court issued per curiam opinions in Moore v. Gatica (No. 07-0094), Diaz-Rohena v. Melton (No. 07-0173) (which actually came from the First District), Center for Neurological Disorders, P.A. v. George (No. 07-0174), Collini v. Pustejovsky (No. 07-0227), Graham Oaks Care Center, Inc. v. Farabee (No. 07-0228), Danos v. Rittger (No. 07-0312), Hill Regional Hospital v. Runnels (No. 07-0368), and Metwest Inc. v. Rodriguez (No. 07-0422).
  
  
• Medical City Dallas, Ltd. v. Carlisle Corp. (No. 06-0660), holding that an action for breach of warranty is a claim for breach of contract for which Chapter 38 of the Civil Practice and Remedies Code permits recovery of attorney's fees.

Osler McCarthy's detailed summaries are available here.

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In Finney v. Vanderbilt Mortgage & Finance, Inc. (No. 03-07-00329-CV), the Third Court of Appeals reminds us that a request for findings of fact and conclusions of law does not extend the deadline for filing a notice of appeal from a summary judgment.  Other than for accelerated appeals, such requests push the deadline from 30 days to 90 days after the judgment is signed if "findings and conclusions either are required by the Rules of Civil Procedure or, if not required, could properly be considered by the appellate court."  TRAP 26.1(a)(4).

Because findings and conclusions are neither required nor properly considered on appeal in the summary judgment context, and because the appellant in Finney did not file his notice of appeal within 30 days after the judgment was signed, the notice was not timely.  The court therefore dismissed the appeal for want of jurisdiction.

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In Austin Periodontal Associates, Inc. v. Husak (No. 03-07-00125-CV), a pre-House Bill 4 dental malpractice case, the Third Court of Appeals has affirmed a $503,923 judgment rendered after a jury trial.  The dentist and hisemployer challenged the judgment on several grounds, most of which involved evidentiary complaints.  This decision is noteworthy, however, because the trial court refused the defendants' proposed "bad result" instruction under former Article 4590i, Section 7.02:

A finding of negligence may not be based solely on evidence of bad result to the patient in question, but such a bad result may be considered by you, along with other evidence, in determining the issue of negligence; you shall be the sole judge of the weight, if any, to be given any such evidence.

Section 7.02 was limited to jury trials "involving a health care liability claim against a physician or hospital."  The court of appeals concluded that no abuse of discretion occurred in Husak because the dentist presented no evidence that he was a "physician," and his employer presented no evidence that it was a "hospital," as the former statute defined those terms.

The current version, Section 74.303(e) of the Civil Practice and Remedies Code, mandates a "bad result" instruction in "any action on a health care liability claim that is tried by a jury."  The jury may or may not have reached the same result had it been instructed under the current law, but the trial court could not have refused the instruction.

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Appellants surnamed Belt had a rough day in the Third Court of Appeals.

In opinions written by Justice Jan Patterson (pictured), the Court dismissed for want of jurisdiction two restricted appeals brought by Robert Belt and one brought by Justin Belt.  All three cases are styled Belt v. Point Venture Property Owners' Association, Inc., and all of them involved tax foreclosure sales.

In Robert's first case (No. 03-07-000567-CV), the Court concluded that the order at issue, which involved distribution of part but not all of the excess sale proceeds, was interlocutory and therefore not appealable.  Although Section 34.04 of the Tax Code allows appeals from orders regarding excess proceeds, the Court concluded that "[n]o statute authorizes an interlocutory appeal from an order to distribute a portion of the excess proceeds from a tax sale."

In Justin's case (No. 03-07-000568-CV) and in Robert's second case (No. 03-07-000569-CV), the Court concluded that that both appellants could not establish three of the four prerequisites for a restricted appeal:  (1) the notice of the restricted appeal was filed within six months after the judgment was signed; (2) by a party to the lawsuit; (3) who neither participated in the hearing nor filed a timely notice of appeal, post-judgment motion, or request for findings of fact or conclusions of law; and (4) the face of the record must disclose the claimed error.  Both Justin and Robert timely filed their restricted appeals, but neither was a party to the underlying lawsuit, both timely perfected (but did not pursue) an ordinary appeal, and the records in both cases failed to demonstrate error.

Of general appellate interest, the Court noted in the latter two opinions that "a party can no longer abandon an ordinary appeal and then seek a restricted appeal" (citing TRAP 30 and Salvaggio v. Brazos County Water Control & Improvement Dist., 598 S.W.2d 277 (Tex. 1980)).

The Belts have three other matters against the same opponent pending on the Third Court's docket.

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The Texas Supreme Court released four opinions with this week's orders:

In PAJ, Inc. v. Hanover Insurance Co. (No. 05-0849), a five-member majority (Justice O'Neill, joined by Chief Justice Jefferson and Justices Brister, Medina, and Green) held that an insured's failure to timely notify its insurer of a claim does not defeat coverage if the delay caused the insurer no prejudice.  In doing so, the Court treated the policy's prompt-notice requirement as a covenant, rather than a condition precedent.  Justice Willett dissented (joined by Justices Hecht, Wainwright and Johnson) and would have reached the opposite conclusion.

In Houser v. McElveen (No. 06-0504) (per curiam), the Court determined that an inmate who deposited his notice of appeal in the prison mail 35 days after the trial court signed a dismissal order was entitled to an extension of time.  Thus, the court of appeals erred by dismissing the inmate's appeal.

In Levine v. Shackelford, Melton & McKinley, L.L.P. (No. 06-0553) (per curiam) (opinion on denial of rehearing from petition for review), the Court emphasized that "conscious indifference" is not the same as negligence when applying the test for setting aside a no-answer default judgment.

In AIG Aviation (Texas), Inc. v. Holt Helicopters (No. 06-0484) (dissent from denial of rehearing of petition for review) Justice Willett indicated that he would have granted review to overrule Puckett v. U.S. Fire Insurance Co., 678 S.W.2d 936 (Tex. 1984), distinguish it, or "explain forthrightly why we insist on applying a hazy, public policy-based interpretive standard to aviation insurance contracts . . . ."

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The Texas Supreme Court issued its first decision of 2008 with today's orders.  In In re Brookshire Grocery Co. (No. 05-0300), the Court held that a motion for new trial filed within 30 days of judgment, but after a preceding motion for new trial had been overruled, did not extend the trial court's plenary power under TRCP 329b.  The Court based its decision on language in the rule allowing an amended motion to be filed without leave of court when no preceding motion for new trial has been overruled and the amended motion is filed within 30 days of the judgment.  Chief Justice Jefferson's majority opinion (in which Justices O'Neill, Medina, Johnson, and Willett joined) also relies on the rule's history and purpose.

The trial court denied Brookshire's first motion for new trial and signed a judgment conforming to the jury's verdict.  More than 30 days after signing the judgment, the trial courtattempted to grant Brookshire's second motion for new trial, which was filed within 30 days of the judgment but after the first motion was overruled.  Under these facts, the supreme court concluded that the trial court lacked jurisdiction to grant a new trial and agreed with the court of appeals' decision to order mandamus relief.

Justice Hecht (joined by Justices Wainwright, Brister, and Green) dissented.  The dissenting justices would have held that the second motion extended the plenary period, and thus would have allowed the trial court to rescind its judgment in favor of a new trial.

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In Saudi Refining, Inc. v. Combs, the Third Court of Appeals has held that it lacked jurisdiction to decide an appeal from a summary judgment signed in 2003.  In an opinion authored by Chief Justice W. Kenneth Law (pictured), the court rejected an argument that the omission of costs sought by the defendants was sufficient to render an otherwise final judgment interlocutory.  The court thus dismissed the appeal for want of jurisdiction.

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The Texas Supreme Court issued four opinions with today's orders.

In National Plan Administrators, Inc. v. National Health Insurance Co. (No. 05-0006), the Court held that a third-party administrator did not owe a general fiduciary duty to an insurer in light of the parties' agreement and certain provisions in the Insurance Code.  The Court therefore reversed the court of appeals' judgment affirming a monetary awardand rendered judgment that the insurer take nothing.

In Texas Parks & Wildlife Department v. E.E. Lowrey Realty, Ltd. (No. 05-0157) (per curiam), the Court applied its recent decision in Texas A&M University System v. Koseoglu, 233 S.W.3d 835 (Tex. 2007) and held that Government Code § 51.014(a)(8) provided the court of appeals with jurisdiction to consider the appeal of Department employees named as codefendants in the suit.  Reversing the court of appeals' judgment, the Court dismissed the plaintiff's claims against the employees and the Department after concluding that they were incurably defective and therefore should not be remanded.

In A.G. Edwards & Sons Inc. v. Beyer (No. 05-0580), the Court rejected the contention that Probate Code § 439(a) barred the plaintiff's breach of contract claim against A.G. Edwards and affirmed the court of appeals' judgment affirming a $791,200 jury verdict.  However, the Court reversed and remanded for a new trial on attorney's fees because the plaintiff failed to segregate fees between her breach of contract and tort causes of action.

In Lamesa Independent School District v. Booe (No. 05-0959) (per curiam), the Court reiterated its holding in Satterfield & Pontikes Construction, Inc. v. Irving Independent School District, 197 S.W.3d 390 (Tex. 2006) that Education Code § 11.151(a) is not a clear and ambiguous waiver of sovereign immunity.  Because the court of appeals determined otherwise, the supreme court reversed and remanded the case to the court of appeals to consider issues it did not reach.

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After a very busy couple of weeks, the Texas Supreme Court released one opinion with today's orders.  In Texas A&M University System v. Koseoglu, the Court held that a plaintiff who, due to pleading defects, loses a plea to the jurisdiction based on sovereign immunity is not entitled to a remand when amending the pleading could not cure the defects.  The Court also determined that Civil Practice and Remedies Code § 51.014(a)(8) vests appellate courts with jurisdiction to decide a government official's appeal from the denial of a plea to the jurisdiction based on immunity.

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In Wallace v. Texas Department of Health, the Third Court of Appeals has held that the trial court acquired subject-matter jurisdiction over a prematurely filed Texas Commission on Human Rights Act claim when the statutory administrative period ended.  Under the statute, the Commission had exclusive jurisdiction over the dispute until 180 days after the employee filed his administrative complaint or until he received a right-to-sue letter from the Commission.  The appellate court reversed the trial court's judgment granting the Texas Department of Health's plea to the jurisdiction after concluding that the employee was not required to dismiss and re-file his lawsuit before jurisdiction could vest in the district court.

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In Texas A&M University v. Bading, a case stemming from the 1999 Aggie bonfire disaster, the Waco Court of Appeals has reversed the trial court's denial of the University's plea to the jurisdiction based on sovereign immunity.  The appellees were defendants in wrongful death and personal injury actions who brought various claims against the University for(1) contribution and indemnity, (2) proportionate responsibility findings under Chapter 33 of the Civil Practice and Remedies Code, and (3) breach of contract.  Finding no statute or legislative resolution waiving the state's immunity, the appellate court rendered judgment dismissing these claims.

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How Appealing blogger and Law.com correspondent Howard J. Bashman has this thoughtful commentary on the ups and downs of trying to get an otherwise-unappealable federal district court order certified as final under Federal Rule of Civil Procedure 54(b).  If you have issues unrelated to the remaining portion of the case and immediate appellate review (as opposed to waiting for a final judgment) would be beneficial, Rule 54(b) provides a procedural vehicle for obtaining that review.  As Mr. Bashman points out, however, the necessary commitment of time and expense, with no guarantee of review or a change in result, may be a prohibiting factor.

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In Charles v. Texas Property & Casualty Insurance Guaranty Association, the Third Court of Appeals has held that the trial court's signing of an order nunc pro tunc to correct the cause number in a dismissal order did not extend the deadline for filing a notice of appeal.  Accordingly, the appellate court determined that it lacked jurisdiction to consider the appellant's complaints about the original order, which were raised in a restricted appeal from the order nunc pro tunc.  The court of appeals affirmed the dismissal after rejecting the appellant's challenges to the corrected version.

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It's been a busy week at the Texas Supreme Court.  Today's orders included opinions in the following six cases:

In Citizens Insurance Co. v. Daccach, the court of appeals affirmed the trial court's certification of a worldwide class of securities purchasers. The supreme court reversed,decertified the class, and remanded the case to the trial court, concluding that the trial court failed to consider how res judicata affected the class representative's adequacy, the superiority of litigating the case as a class action, the typicality of claims within the class, and the predominance of common issues.  Chief Justice Jefferson and two other justices concurred.

In Moki Mac River Expeditions v. Drugg, the Court held that the plaintiffs did not establish specific jurisdiction over a nonresident defendant.  The Court reversed and remanded the case with instructions that the court of appeals consider whether the defendant is subject to general jurisdiction in Texas.  Justice Johnson, joined by Justice Medina, dissented.

In City of Galveston v. State of Texas, the Court held that the state bears the burden of showing that the legislature allows the state to sue cities.  Because the state failed to meet that burden in this negligence case involving water damage to a highway, the Court reversed and rendered.  Justice Willett, along with three others, dissented.

In In re Discount Rental, Inc., the per curiam Court conditionally issued a writ of mandamus directing the trial court to vacate an order that a judgment debtor's property be sold to satisfy a void judgment.

In Varner v. Cardenas, the per curiam Court concluded that the court of appeals correctly reversed and remanded the trial court's judgment for segregation of recoverable from unrecoverable attorney's fees, but modified the court of appeals' judgment on the basis that the lower court defined recoverable fees too narrowly.

In Ontiveros v. Flores, the per curiam Court held that the court of appeals erred by reversing the trial court's summary judgment on claims the appellant had not raised on appeal.

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In Rainbow Group, Ltd. v. Wagoner, the Third Court of Appeals has dismissed a class action defendant's interlocutory appeal from an order denying its motion to decertify the class and an order granting the plaintiffs' motion to amend the certification.  The court of appeals held that it lacked jurisdiction becausethe first order was not subject to an interlocutory appeal and because the defendant failed to timely file a notice of appeal from the second order.

Disputing discusses the case here.

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The Supreme Court of Texas issued three per curiam opinions with today's orders:

In Hood v. Wal-Mart Stores Inc., the Court held that the court of appeals erred by dismissing the appeal without providing an opportunity to cure when the plaintiff filed an indigence affidavit within the time the appeals court gave him to pay the filing fee or face dismissal.

In In re Bank One, N.A., the Court held that an arbitration clause incorporated by reference on a bank signature card was enforceable and that the bank did not waive its right to arbitrate by moving to set aside a default judgment and seeking a new trial.

In City of Houston v. Williams, the Court rejected a declaratory judgment action complaining about deductions from payments retired firefighters received upon termination as a claim for money damages for which governmental immunity had not been waived.

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Yesterday's prediction was way off, although the Texas Supreme Court did release its first opinion of 2007 with today's orders.  In United Services Automobile Association v. Brite, the Court held that a claim for front pay must be included when determining whether a case meets the amount-in-controversy requirement for a limited jurisdiction court.  Because a divided panel of court of appeals concluded otherwise, the supreme court reversed and dismissed the case for want of jurisdiction.

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In In re C.S., the Third Court of Appeals has held that an ad litem's request for an injunction to remove "unconconstitutional barriers" to an adoption by increasing subsidies was really "an attempt to force the State to pay money to [the prospective adoptive parents] that the State is not willing to pay on its own volition."  Because the State is immune from suits for money absent legislative consent, the Third Court reversed the trial court's denial of the State's plea to the jurisdiction and rendered judgment dismissing the claim.

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When revamping the Texas appellate court web sites (except for the Dallas Court of Appeals, which has always done its own thing), the Office of Court Administration included a PDF color-coded map showing the boundaries of all fourteen appellate court districts.  (A list of counties in each appellate district is available here.)  This is a great tool in case someone calls wondering whether appeals from Comal County go to Austin or San Antonio.  The answer is just a few clicks away.

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