Texas Trial Law Advocate : Texas Business Litigation Lawyer & Attorney : Craig Cherry : Haley & Olson Law Firm : TX Personal Injury, Product Liability

 In The Mansions in the Forest, L.P. v. Montgomery County, 10-0969, 2012 WL 1370867 (Tex. Apr. 20, 2012), the Texas Supreme Court considered whether the lack of a jurat - a clause stating that a writing was sworn to before an authorized officer - in an affidavit opposing a motion for summary judgment is a defect that must have been objected to before the trial court ruled on the motion in order to preserve error.

The Beaumont Court of Appeals had previously held that omission of a jurat was a substantive defect under both the Texas Government Code and Texas Rule of Civil Procedure 166a, and that such a defect could be raised for the first time on appeal.  However, the Texas Supreme Court disagreed, holding that that neither the Government Code nor Texas Rule of Civil Procedure 166a requires such an affidavit to contain a jurat. However, to meet the definition of an “affidavit” under the Texas Government Code Section 312.011, the record must indicate the affidavit was sworn to. In this case, there was no such evidence in the record; therefore, the written statement did not meet the requirements of an affidavit.

Furthermore, because no objection to the affidavit was made in the trial court about the purported affidavit's failure to satisfy the requirements of the Texas Government Code, the defect was waived and was not preserved for appeal. 

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On April 17, 2012, the U.S. Supreme Court held that a private attorney retained by the government to carry out its work is entitled to seek qualified immunity from suit under Section 1983.  (Section 1983 provides a cause of action against state actors who violate an individual's rights under federal law.  See 42 U.S.C. § 1983).  The full opinion, Filarsky v. Delia, 10-1018, 2012 WL 1288731 (U.S. Apr. 17, 2012), can be found here.

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The Dallas Court of Appeals recently held that a denial of leave to designate a responsible third party is subject to mandamus relief.  In In re Smith, No. 05-11-01657-CV., 2012 WL 1066331 (Tex. App.—Dallas 2012, no pet. h.), the Dallas Court of Appeals held that an “improper denial of leave to designate a responsible third party may not be adequately addressed by appeal,” and, as such, appellants were entitled to mandamus relief.  The Dallas Court of Appeals noted that there is a split amongst the other Texas Courts of Appeals regarding this issue.  Specifically, the Dallas Court of Appeals noted that some courts have granted mandamus relief. E.g., In re Brokers Logistics, Ltd., 320 S.W.3d 402, 408 (Tex. App.—El Paso 2010, orig. proceeding); In re Arthur Andersen LLP, 121 S.W.3d 471, 485–86 (Tex. App.--Houston [14th Dist.] 2003, orig. proceeding). It also noted that other courts have denied mandamus relief, holding that appeal is ordinarily an adequate remedy for such errors.  E.g., In re Unitec Elevator Servs. Co., 178 S.W.3d 53, 63–64 (Tex. App.—Houston [1st Dist.] 2005, orig. proceeding); In re Martin, 147 S.W.3d 453, 459–60 (Tex. App.—Beaumont 2004, orig. proceeding, pet. denied).  The Texas Supreme Court has not yet issued an opinion addressing this issue.

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The Advocate is a quarterly publication of the Litigation Section of the State Bar of Texas.  Every publication addresses hot topics and trends in litigation in the State of Texas.  The Fall 2012 issue will be no different when it addresses Social Media and The Law. 

The editoral board did a great job lining up experienced authors on a topic that is very relevant today in Texas, and the nation, for that matter.  Just to give you a sample of a few of the topics that will be discussed, the Fall 2012 issue will address discovery, evidence and ethics issues (for both lawyers and judges) as they relate to the use of social media, as well as, how social media can effect jury trials (both the use of social media by lawyers to learn about the background of potential jurors and the use of social media by jurors during trials).  It really should be a great issue.

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On March 30, 2012, the Texas Supreme Court, in Severance v. Patterson, affirmed the private property rights of shoreline property owners. In doing so, the Court ruled the public’s right of access to state beaches is not guaranteed in the event of a hurricane or storm reshaping the coastline.

This ruling is thought to limit the state’s ability to enforce the Open Beaches Act, a 53 year old law that has in the past been used to compel landowners to raze or move structures that intrude on the public right of way due to storm erosion. The opinion focuses on the "dry beach," which runs from the high tide mark to the vegetation line and may be privately owned, as opposed to the “wet beach” which  runs from the high tide mark to the water, which is public land.

In so ruling, Justice Wainwright stated:

The public may have a superior interest in use of privately owned dry beach when an easement has been established on the beachfront. But it does not follow that the public interest in the use of privately owned dry beach is greater than a private property owner’s right to exclude others from her land when no easement exists on that land.

This 5-3 ruling is the result of a controversy that began after Hurricane Rita moved the vegetation line behind Carol Severance’s properties on Galveston Island, and she was ordered to raze or move her structures.

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On March 9, 2012, the Texas Supreme Court issued its decision in In Re Frank Motor Company, which held that a long time employee who signed a jury waiver agreement was not entitled to have it set aside because he was coerced into signing it by his employer.

In this case, a long-time employee (“Employee”) signed a Jury Trial Waiver only after his supervisor threatened to fire him if he did not sign it.  Employee claimed that he only signed the Jury Trial Waiver to avoid losing his job of twenty-eight years.   Almost a year after signing the Jury Trial Waiver, Employee was terminated.  Employee then brought an action against his employer (“Employer”) for age discrimination.   The trial court denied Employer’s Motion to Strike Employee’s Demand for Jury Trial and Employer subsequently filed a Petition for Writ of Mandamus to Compel Enforcement of the Jury Trial Waiver.

The Texas Supreme Court held that Employer’s threat to exercise its right to terminate Employee could not amount to coercion that would invalidate the Jury Trial Waiver.  As such, the Texas Supreme Court directed the trial court to grant Employer’s Motion to Strike Employee’s Jury Demand.

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          The 2011 Legislative Session resulted in a number of changes to Chapter 53 of the Texas Property Code (addressing Mechanic's, Contractor's, or Materialman's Liens).  Included below are the revisions to Chapter 53, along with brief commentary regarding these revisions.

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On January 27, 2012, the Texas Supreme Court withdrew its prior opinion and issued a new opinion in City of Dallas v. Stewart, 2012 WL 247966, ––– S.W.3d –––– (Tex. 2012).  In its prior decision on July 1, 2011, the Texas Supreme Court upheld the jury’s award of $75,000 in a case where Stewart argued that the city improperly took and demolished her house.  Stewart had previously fought and lost the demolition order in the municipal board meetings, and she then timely appealed the decision to state district court, where she prevailed and was awarded damages.

The city appealed the trial court’s decision, and this case eventually made it to the Texas Supreme Court. In July 2011, the Texas Supreme Court issued its opinion affirming the underlying court’s decision.  

However, the city was concerned that the Texas Supreme Court’s July 1, 2011 decision would potentially open the door for many persons to bring similar takings cases against cities all over Texas, and therefore filed a motion for new hearing.  Chief Justice Jefferson wrote: “[The cities] argue that failing to accord administrative nuisance determinations preclusive effect will open the floodgates for takings claims. Because takings claims have a ten-year statute of limitations, they contend, parties will now sue to challenge demolitions that occurred any time in the past ten years.”

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     In Carey v. 24 Hour Fitness, USA, Inc., 10-20845, 2012 WL 205851 (5th Cir. Jan. 25, 2012), the United States Court of Appeals for the Fifth Circuit found an arbitration agreement to be illusory because one party to the agreement retained the unilateral right to modify or terminate the arbitration provision at any time.

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In Port Elevator-Brownsville v. Casados, 2012 WL 247985 (Tex. 2012), the Texas Supreme Court reversed a previous judgment from the Corpus Christi Court of Appeals and held that a employee’s claim of negligence was barred by the exclusive-remedy provision of the Texas Workers’ Compensation Act.  The Texas Supreme Court further held that employers cannot, intentionally or unintentionally, split its workforce by electing workers' compensation coverage for some but not all employees.

Plaintiffs argued that the workers’ compensation policy did not cover the deceased employee because: (1) the employer had not paid premiums for the employee; (2) the employee was not covered by any job classification identified in the employer's workers' compensation policy; and (3) the employer denied coverage for the workers' loss.

The Texas Supreme Court held that the employer’s failure to pay specific premiums under the workers’ compensation policy did not preclude coverage.  Also, the fact that the employee was not covered by any job classification identified in the employer's workers' compensation policy did not preclude coverage.  Finally, the insurer’s denial of coverage for the worker did not preclude the application of the Texas Workers’ Compensation Act.   In conclusion, because the employer subscribed to workers' compensation insurance, the employee was employed by the employer, and the employee suffered a work-related injury, the remedy included in the Texas Workers' Compensation Act was the exclusive remedy for the employee’s injury and any negligence claim against the employer was barred.

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On July 1, 2011, the Texas Supreme Court issued its decision in Haygood v. Escabedo, which held that evidence of a plaintiff's medical expenses at trial is limited to the amount the medical provider has a legal right to be paid.  The appellant in the case sought rehearing after the Court's decision, however, the Court denied rehearing on January 27, 2012. 

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The Dallas Court of Appeals, in Vines-Herrin Custom Holmes, LLC v. Great American Lloyds, No. 05-10-00007-CV, 2011 WL 6396473 (Tex. App.—Dallas Dec. 21, 2011, no pet. h.) handed down an opinion overturning a take-nothing judgment on behalf of an insurer of a construction company and remanding to the trial court for further proceedings.  In so doing, the court held that (1) the plaintiff/owners had pled sufficient facts supporting when the physical damage to the property occurred to trigger the duty to defend on behalf of the insurer, and (2) the duty to indemnify was also triggered where the actual damages manifested during the insurer's policy period.   

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In Ryland Enterprises, Inc. v. Weatherspoon, No. 11–0189, 2011 WL 6276127 (Tex. 2011), Vickie Weatherspoon (“Plaintiff”) sued Ryland Enterprise, Inc. (“Defendant”). 

On May 4, 2010, the jury returned a verdict for Plaintiff. 

On May 25, 2010, after the jury verdict, but before the judgment was signed, Defendant filed a JNOV motion on legal insufficiency grounds. 

On June 14, 2010, the trial court signed a judgment for Plaintiff, initiating the appellate time table. The judgment also denied Defendant’s JNOV motion. 

On August 18, 2010, sixty-five days after the judgment was signed, Defendant filed a notice of appeal in the trial court.

Plaintiff moved to dismiss the appeal as untimely because the notice was filed beyond the thirty-day deadline that applies if none of the motions listed in Texas Rule of Appellate Procedure 26.1(a) are filed.  The court of appeals granted the motion. The court of appeals held that although a JNOV motion may extend the appellate timetable to ninety days in some circumstances, it only does so if filed after the judgment is signed, and not before. The Texas Supreme Court disagreed.

One issue before the Texas Supreme Court was whether the filing a motion to modify the judgment before the judgment is signed extends the deadline for filing a notice of appeal to ninety days. 

The Supreme Court held that filing a motion to modify the judgment before the judgment is signed extends the deadline for filing a notice of appeal to ninety days. 

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     This post discusses the basics of the “automatic stay” that is in place when a customer files for bankruptcy.  This post also includes a discussion of the potential pitfalls that creditors face for violations of the automatic stay.

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