Dallas Court of Appeals cases for the week of November 15, 2010

Dallas Court of Appeals cases for the week of November 15, 2010

Dallas Court of Appeals cases for the week of November 15, 2010

For the week of November 15, 2010, the Dallas Court of Appeals issued twenty-five opinions in civil cases.  Thirteen of these dispose of a case without a detailed discussion of the merits (e.g., dismissing a case for want of prosecution, dismissing a case for mootness, dismissing a case pursuant to settlement).  The remaining twelve cases are follows:

Audia v. Hannold (05-08-01147-CV) – Recites well-established (1) applicability to constitutional complaints of the rule that to, preserve a complaint for appellate review, a party must timely-present the complaint to the trial court and seek a ruling on the complaint; (2) rule that pro se litigants are held to the same standards as licensed attorneys; and (3) rule that a party cannot agree to a trial in district court before six jurors, wait for an unfavorable verdict, and then complain about the number of jurors.

City of Richardson v. Justus (05-10-00185-CV) – Recites well-established (1) rule that, when deciding a plea to the jurisdiction, a trial court must consider evidence when necessary to resolve the jurisdictional issue raised; and (2) rule that, to sue a governmental entity for a tort, the pleadings must state a claim under the Texas Tort Claims Act.

David L. Smith & Assocs., L.L.P. v. Stealth Detection, Inc. (05-09-00304-CV) – Recites well-established (1) standard for reviewing challenge to legal sufficiency of the evidence by a party which had the burden of proof at trial; (2) definition of “joint enterprise liability”; and (3) rule that a plaintiff who prevails on a claim for breach of contract and recovers damages is entitled to recover reasonable attorneys’ fees.

Hamilton v. Farmers Tex. County Mut. Ins. Co. (05-09-01376-CV) – Recites well-established (1) rule that an appellate court is obligated to review sua sponte issues affecting its jurisdiction; (2) rule that appellate jurisdiction is never presumed; (3) rule that an appeal may be taken only from a final order unless a statute specifically authorized an interlocutory appeal; (4) rule that, if an intent to finally dispose of the case is clear from the trial court’s order, the order is final and appealable even if the record does not provide an adequate basis for rendition of judgment; (5) rule that a trial court can enter a summary judgment only against those claims attacked in a motion for summary judgment; and (6) rule that pro se litigants are held to the same standards as licensed attorneys.

Hemani v. Proton PRC, Ltd. (05-10-01066-CV) – Recites well-established (1) rule that the right to a restricted appeal is limited to parties who did not participate, either in person or through counsel, in the hearing that resulted in the judgment complained of and who did not file timely-file a post-judgment motion or notice of appeal; and (2) rule that, without a timely-filed notice of appeal, court of appeals lacks jurisdiction.

Logan v. Francois (05-10-00075-CV) – Recites well-established (1) standard for reviewing trial court’s decision to dismiss for want of prosecution; and (2) definition of “bench warrant”.

K & S Mart, Inc. v. Proton PRC, Ltd. (05-10-01065-CV) – Recites well-established (1) rule that the right to a restricted appeal is limited to parties who did not participate, either in person or through counsel, in the hearing that resulted in the judgment complained of and who did not file timely-file a post-judgment motion or notice of appeal; and (2) rule that, without a timely-filed notice of appeal, court of appeals lacks jurisdiction.

Miranda v. Wilder (05-09-00976-CV) – Recites well-established rule that a timely-filed post-judgment motion that seeks a substantive change in an existing judgment will extend the trial court’s plenary power and the appellate timetable.

Ohnesorge v. Winfree Academy Charter School (05-09-01453-CV) –  Recites well-established rules of construing an unambiguous statute.  Additionally, holds that open-enrollment charter schools are not subject to the Whistleblower Protection Act.

Threlkeld v. Urech (05-09-00631-CV) – Recites well-established (1) rule that a complaint that an affidavit is by an interested witness is an objection to form that is waived if not raised in the trial court; (2) rule that a trial court is required to provide an opportunity to amend a defective summary judgment affidavit only when the defect is one of form, not substance; and (3) holding that a conclusory statement in an affidavit is a defect of substance.

Veneble v. Sherbet (05-10-00303-CV) –  Recites well-established (1) standard for reviewing whether trial court had subject matter jurisdiction; (2) means by which a party may establish standing to bring a lawsuit; (3) general rule that, unless standing is conferred by statute or a plaintiff can show a particularized injury, taxpayers have no standing to contest governmental decision-making; (4) exception to that general rule which allows a taxpayer to sue to enjoin the illegal expenditure of public funds; and (5) rule that a defendant filing a plea to the jurisdiction has the burden to support the plea with evidence.

Ward v. ACS State & Local Solutions, Inc. (05-09-00557-CV) – Recites well-established (1)  standard for reviewing traditional summary judgment; (2) definition of “negligence per se”; (3) elements of negligence per se cause of action; (4) elements of proximate cause; and (5) test for determining whether something is a cause-in-fact.

Spread the love

Spread the love