Update: Arbitration Provision in Trust Enforceable

In Rachal v. Reitz, No. 11-0708, 2013 WL 1859249 (Tex. May 3, 2013), the Texas Supreme Court determined whether an arbitration provision contained in an inter vivos trust was enforceable against the trust beneficiaries. The trust contained a provision requiring all disputes regarding the trust and the trustee to proceed to arbitration. When a trust beneficiary sued the trustee alleging that the trustee violated the terms of the trust, the trustee moved to compel arbitration. The trial court denied the motion; the appellate court affirmed. The Supreme Court of Texas held the arbitration provision was enforceable against the beneficiary for two reasons.

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Rule 11 Agreement Filed Over A Year After It Was Signed Is Enforceable

In Markarian v. Markarian, the Dallas Court of Appeals upheld a trial court’s ruling that a final divorce decree signed by the parties, and filed over a year after it was signed, was enforceable pursuant to Rule 11 of the Texas Rules of Civil Procedure. Rule 11 provides that agreements must be (1) in writing, (2) signed, and (3) filed with the papers as a part of the record to constitute an enforceable Rule 11 agreement. See Texas Rule of Civil Procedure 11. However, the rule does not state when the writing must be filed

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A Primer on Expedited Actions Under Texas Rule of Civil Procedure 169


In 2011, the Texas Legislature passed House Bill 274, which called upon the Supreme Court of Texas to promulgate procedural rules and amendments for expedited civil actions. The Supreme Court formed a task force to answer the legislature’s call, and the task force proposed several modifications to the Texas Rules of Civil Procedure. On November 13, 2012, the Supreme Court adopted the final proposed rules and amendments. This primer provides a review of major portions of the expedited action process.


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The Dallas Court of Appeals Holds that a Denial of Leave to Designate a Responsible Third Party is Subject to Mandamus Relief

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.


JNOV Filed Before Judgment is Signed Extends Appellant Timetable to Ninety Days

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. 

Reference to Medical Records for Opinions of Non-Retained Experts May Be Insufficient to Properly Designate Under Rule 194

On September 28, 2011, the Waco Court of Appeals decided Baker v. Energy Transfer Co, 2011 WL 4489803.  In the Baker case, the plaintiffs designated their non-retained medical experts by stating the subject matter on which those experts would testify and then, for their mental impressions and opinions and the basis of their opinions, plaintiffs referred to and incorporated by reference into the designation, previously tendered medical records.  However, the plaintiffs did not produce new medical records with their designation or re-produce medical records previously tendered.

The defendants filed a motion to strike the medical experts designation under Rule 193.6 for failing to timely and properly disclose the experts under Rule 194.  The Waco Court of Appeals held that the trial court did not abuse its discretion in striking the medical experts' designation.

First, the court was concerned with plaintiffs' designation because there were over twenty (20) medical experts identified by plaintiffs in their designation and the plaintiffs did not state the mental impressions or opinions for any of the medical providers. Instead, the plaintiffs incorporated by reference previously tendered medical records for the medical experts mental impressions and opinions. Additionally, the court pointed out that, in the designation, the plaintiffs did not direct the defendants to specific documents from the medical records previously tendered that set forth the mental impressions and opinions of the medical experts. The impression left by the court's opinion is that designating parties should not require opposing parties to hunt for the mental impressions and opinons the designating party believes a non-retained medical expert will provide in a case.



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Using Google to Research Potential Jurors During Jury Selection

Have you ever thought about using Google during jury selection to research potential jurors? Although there are no Texas appellate cases addressing this issue (yet), there is a recent case out of New Jersey that may be a sign of things to come.

During jury selection in a medical malpractice case, plaintiff's counsel began using his laptop to Google potential jurors and learn additional information about them.  When the trial judge realized what plaintiff's counsel was doing, the following exchange occurred:

THE COURT: Are you Googling these [potential jurors]?

[PLAINTIFFS COUNSEL]: Your Honor, there’s no code law that says I’m not allowed to do that. I-any courtroom-

THE COURT: Is that what you’re doing?

[PLAINTIFFS COUNSEL]: I’m getting information on jurors-we’vie done it all the time, everyone does it. It’s not unusual. It’s not. There’s no rule, no case or any suggestion in any case that says-

THE COURT: No, no, here is the rule. The rule is it’s my courtroom and I control it.

The judge prohibited plaintiff's counsel from using Google.  The jury ultimately found for the defendant and the plaintiff appealed the trial court's decision that counsel could not make use of the internet (wireless access was provided in the courthouse) during jury selection.

The appellate court found the trial court's prohibition was unreasonable and held the following:

There was no suggestion that counsel’s use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of “fairness” or maintaining “a level playing field.” The “playing field” was, in fact, already “level” because internet access was open to both counsel, even if only one of them chose to utilize it.

The appellate court let the defense verdict stand, however, because the plaintiff failed to show any prejudice from the ruling.

The case is Carino v. Muensen, 2010 WL 3448071 (N.J. Super A.D. August 30, 2010).