Dallas Court of Appeals cases for the week of March 21, 2011

Dallas Court of Appeals cases for the week of March 21, 2011

Dallas Court of Appeals cases for the week of March 21, 2011

For the week of March 21, 2011, the Dallas Court of Appeals issued fifteen opinions in civil cases.  Five 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 ten cases are as follows:

D Design Holdings, L.P. v. MMP Corp. (05-10-00032-CV) – Recites well-established (1) standard for reviewing traditional summary judgment; (2) rule that, when the provisions of a contract appeal to conflict, courts should attempt to harmonize the provisions and assume the parties intended for every provision to have some effect; (3) rule that, when a contract is ambiguous, it is improper to grant summary judgment based on the contract; (4) rule that whether a contract is ambiguous is a question of law; (5) standard for reviewing trial court’s ruling on motion for sanctions; (6) rule that a party seeking sanctions bears the burden of overcoming the presumption of good faith; and (7) rule that appellate sanctions are imposed only under egregious circumstances.

Fischer v. Eagle Equity, Inc. (05-09-01067-CV) – Recites well-established (1) rule that a party cannot recover under quantum meruit or unjust enrichment for services provided under a contract; and (2) rule that the failure to adequately brief an issue waives that issue on appeal.

Humphries v. Advanced Print Media (05-10-00031-CV) – Recites well-established (1) rule that, where a judgment may rest upon more than one ground, the appealing party must challenge each ground or the judgment will be affirmed on the ground to which no complaint is made; and (2) in a trial court to the court where no findings of fact or conclusions of law have been filed, the judgment implies all necessary findings in support of the judgment.

In re Oncor Elec. Delivery Co. LLC (05-11-00188-CV) –  Recites well-established rule that, if a petition for writ of mandamus complains of an oral order, the portion of the reporter’s record that contains the order must be included in the petition’s appendix.

Martinez v. Dallas Central Appraisal Dist. (05-09-00858-CV) – Recites well-established (1) standard for reviewing matters of statutory construction; (2) rule that, in construing a statute, a court must consider the statute as a whole rather than its isolated provisions; (3) rule that property need not be owned in fee simple to qualify as a residence homestead; (4) attorneys’ fees cannot be awarded in the absence of contractual or statutory authority; (5) rule that statutory and constitutional provisions purporting to grant exemptions from taxation are given a narrow and strict construction, and all doubts are resolved against the granting of an exemption; and (6) rule that, in evaluating whether a statute is unconstitutional, courts begin by presuming the statute’s constitutionality.

Mewhinney v. London Wineman, Inc. (05-09-01057-CV) – Recites well-established (1) standard for reviewing denial of motion for JNOV; (2) rule that a mere breach of contract, without more, does not constitute a violation of the deceptive trade practices act; and (3) definition of “out-of-pocket damages.”

Strobel v. Marlow (05-09-01047-CV) – Recites well-established (1) definition of “healthcare liability claim”; and (2) rule that a certificate of service is prima facie evidence that service took place, but this presumption vanishes if the opposing party offers proof of non-receipt.  Additionally, holds that a prosthetist is a health care provider.

Terraces at Cedar Hill, L.L.C. v. Gartex Masonry & Supply, Inc. (05-10-00226-CV) – Recites well-established (1) standard for reviewing findings of fact; (2) rule that a constitutional mechanic’s lien can exist even if the lienholder fails to comply with the legislative requirements for statutory liens; and (3) rule that an agent’s authority to act on behalf of principal depends on some communication by the principal either to the agent or to the third party.

Weekley Homes, L.P. v. Rao (05-10-00570-CV) – Recites well-established (1) rule that, if the appellate record does not affirmatively demonstrate the appellate court’s jurisdiction, the appeal must be dismissed; (2) standard for reviewing whether an arbitration agreement is enforceable; (3) rule that, by continuing to work for an employer after receiving notice of the employer’s arbitration policy, an at-will employee accepts the agreement to arbitrate as a matter of law; and (4) rule that the presumption favoring arbitration arises only after the party seeking to compel arbitration proves that a valid arbitration agreement exists.

W.O. Burgers 1 L.L.C. v. Watsonburger of Oklahoma, Inc. (05-09-00397-CV) –  Recites well-established (1) standard for reviewing trial court’s decision to admit or exclude evidence; (2) rule that a written instrument may not be varied by evidence of an oral agreement that contravenes its terms; (3) rule that parol evidence is admissible to show that the execution of a written agreement was procured by fraud, that an agreement was not to become effective except under certain conditions, or to ascertain the parties’ true intentions where the writing is ambiguous; (4) standard for reviewing a trial court’s exclusion of expert testimony; and (5) rule that the proponent of an expert must establish that the expert’s opinion will aid the trier of fact.

Spread the love

Spread the love