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The Appellate Strategist

Insights on appellate issues, trial consultations, and evaluating appeals

Category Archives: Texas

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Texas Supreme Court Upholds Class Representative’s Authority to Dispose of Unclaimed Settlement Proceeds

Posted in Texas
A sharply divided Texas Supreme Court recently held that unclaimed class action settlement funds may be disposed of in the manner selected by the parties and are not subject to the state’s Unclaimed Property Act. In Highland Homes Ltd. v. The State of Texas, the court considered a settlement between a prominent Texas home builder and [&hellip… Continue Reading

Fifth Circuit Applies Punitive Damages Limitations to Statutory Civil Penalties

Posted in Texas
It’s not uncommon for state and federal regulatory schemes to provide for an award of statutory civil penalties to deter and punish certain conduct that it is difficult to monetize in a suit for damages. Frequently penalties may be assessed on a per-violation or per-day basis, permitting an astronomical award that bears little relation to the [&hellip… Continue Reading

Addressing the “Consolation Prize” – A Dilemma For Appellate Advocates

Posted in Texas
One more note on National Gas Pipeline Co. v. Justiss is appropriate. The Texas Supreme Court held that the landowners had failed to present admissible evidence that the permanent nuisance caused by the defendant had diminished the value of their property. Normally, the loss of such a “no-evidence” point leads to the appellate court reversing [&hellip… Continue Reading

When “Undisputed” Evidence Is Not “Conclusive” Evidence

Posted in Texas
The Texas Supreme Court’s opinion in Natural Gas Pipeline Company of America v. Justiss highlights a subtle but important point regarding the way appellate courts treat undisputed facts. The case concerned claims by neighboring landowners that a natural gas plant created offensive odors, thus constituting a permanent nuisance. The statute of limitations for permanent nuisance [&hellip… Continue Reading

Is Texas Going Federal? Statutory Changes Erode The Distinctiveness of Texas Practice

Posted in Texas
The Texas legislature has recently passed civil justice reform legislation. While most of the publicity concerning the legislation focused on the “loser pays” provisions, other changes also deserve note. The new statutes permit an interlocutory appeal of a ruling on a controlling legal issue where such an appeal is approved by the trial court and [&hellip… Continue Reading

Civil Justice Reform in the Texas Legislature

Posted in Texas
The Texas Legislature is currently considering House Bill 274, containing several measures that could alter the landscape of civil litigation. HB274 would, if enacted: Require the Texas Supreme Court to adopt rules creating a motion-to-dismiss practice patterned on Rules 9 and 12 of the Federal Rules of Civil Procedure (Texas currently does not have a [&hellip… Continue Reading

When “Ocean View” Suddenly Becomes “On the Beach”: Texas Supreme Court Tackles Rolling Easements

Posted in Texas
Under Texas law, the public has an easement to access dry beaches. This easement extends landward to the vegetation line. A recent Texas Supreme Court case examined the validity of the easement when a hurricane suddenly alters the beachfront. The property owner had constructed a house behind the vegetation line in the West Beach area [&hellip… Continue Reading

Texas Supreme Court: Cattle Rustling Justifies Punitive Damages … But Amount is Constitutionally Excessive

Posted in Texas
Two Texas ranchers had a long-standing feud. During a drought, 13 of plaintiff’s cattle strayed from plaintiff’s ranch to defendant’s property along a dry river bed. Defendant rounded up the cattle and sold them, despite warnings from the ranch hands that the cattle were not his. Plaintiff brought a conversion action and prevailed at trial. [&hellip… Continue Reading

Texas Supreme Court Grants Review in Four Cases

Posted in Insurance, Texas
On May 28, 2010, the Texas Supreme Court granted petitions for review in the following cases: Anglo-Dutch Petroleum Int’l v. Greenberg Peden P.C.—This case concerns the construction of a contingency fee agreement and the circumstances under which a court can conclude that an agreement is ambiguous. Hyde Park Baptist Church v. Turner—This case concerns the [&hellip… Continue Reading

Texas Supreme Court Grants Review in Six Cases

Posted in Employment, Insurance, Texas
On April 9, the Texas Supreme Court granted petitions for review in the following cases: Offshore Specialty Fabricators v. Wellington Underwriting Associates. The case addresses whether an all-risk insurance policy covers weather stand-by charges incurred by the insured. XTO Energy Inc. v. Smith Production Inc. The case will determine whether joint operating agreements for oil [&hellip… Continue Reading

Two New Features on The Appellate Strategist

Posted in Announcements, California, Illinois, Texas
The Appellate Strategist was the first blog to offer a comprehensive, regularly-updated database of civil issues — broken down by category and subject matter — that the California Supreme Court has agreed to hear and decide. We are proud to announce two new features. Since this "preview of coming attractions" has been one of our most popular [&hellip… Continue Reading

Can’t Get An Opinion?: Sue the Court!

Posted in Texas
A party in case before the Texas Supreme Court grew so frustrated by waiting for an opinion almost three years after oral argument that it sued the justices in federal court, alleging due process violations. Coincidentally (or not) the Supreme Court issued an opinion eight days later. The court heard oral arguments in Southwestern Bell [&hellip… Continue Reading

Texas Supreme Court Civil Issues Pending: Punitive Damages

Posted in Texas
[UPDATED THROUGH APRIL 1, 2010] Sexual Harassment. Did plaintiff submit sufficient evidence to establish the elements of a sexual harassment claim?  Was plaintiff constructively discharged under the facts of the case?  Or was the evidence sufficient to support the jury’s finding of malice and a subsequent award of punitive damages against a corporate defendant for [&hellip… Continue Reading

Texas Supreme Court Civil Issues Pending: Public Utilities

Posted in Texas
[UPDATED THROUGH APRIL 1, 2010] Stranded Costs, Transition to Competitive Marketplace. Is utility entitled to recover interest on certain “stranded costs” it incurred during transition from land-regulated to competitive marketplace? Is utility permitted to recover a valuation panel fee as an expense? Must new on-site generators of electricity continue to pay utility to offset its [&hellip… Continue Reading

Texas Supreme Court Civil Issues Pending: Products Liability

Posted in Texas
[UPDATED THROUGH APRIL 1, 2010] Causation, Preemption, Safer Alternative Design, Jury Misconduct. Was claimant required to introduce into evidence at least two statistically significant scientific studies showing that Vioxx more than doubled the risk of heart attack, or is evidence from a clinical trial sufficient? Did claimant’s expert sufficiently account for alternate causes of account [&hellip… Continue Reading

Texas Supreme Court Civil Issues Pending: Other Issues

Posted in Texas
[UPDATED THROUGH APRIL 1, 2010] Civil Forfeiture. Did the court of appeals err in determining that the trial court incorrectly disregarded the jury’s findings that currency found in a truck was not contraband where there was no direct evidence linking the currency to any drug transaction? If the currency is not contraband, is an innocent [&hellip… Continue Reading

Texas Supreme Court Civil Issues Pending: Negligence

Posted in Texas
[UPDATED THROUGH APRIL 1, 2010] Equine Activity Act. Do provisions of the Equine Activity Act, Tex. Civ. Prac. & Rem. Code § 87.001 et seq., providing that certain persons are not liable for damages resulting from risks inherent to an equine activity apply to a claim that defendant was negligent in leading plaintiff into a [&hellip… Continue Reading

Texas Supreme Court Civil Issues Pending: Local Government

Posted in Texas
[UPDATED THROUGH APRIL 1, 2010] Governmental Immunity and Waiver, Declaratory Judgment Act. Did the Dallas City Charter and/or Tex. Loc. Gov. Code § 51.075, providing that a municipality may “plea and be impleaded in any court,” waive governmental immunity? May a municipality which has waived governmental immunity through asserting a counterclaim reinstate that immunity by [&hellip… Continue Reading

Texas Supreme Court Civil Issues Pending: Juvenile Law

Posted in Texas
[UPDATED THROUGH APRIL 1, 2010] Prostitution. May a 13-year-old juvenile be adjudicated delinquent for the offense of prostitution, even though juvenile could not have given valid consent to sexual acts? In re B.W., No. 08 1044, formerly 274 S.W.3d 179 (Tex. App.—Houston [1st Dist.] 2008), review granted … Continue Reading

Texas Supreme Court Civil Issues Pending: Jurisdiction

Posted in Texas
[UPDATED THROUGH APRIL 1, 2010] Personal Jurisdiction Over Corporate Officers. Are corporate officers subject to personal jurisdiction in Texas for claims arising under the Texas Trust Fund Act where officers controlled trust funds intended for payments of persons providing labor or material to Texas construction projects? May Texas assert personal jurisdiction over corporate officers with [&hellip… Continue Reading

Texas Supreme Court Civil Issues Pending: Intentional Torts

Posted in Punitive Damages, Texas
[UPDATED THROUGH APRIL 1, 2010] Conversion, Punitive Damages. Does probative evidence support the finding that defendant stole 13 cattle? Did evidence support finding that defendant acted with malice under the “clear and convincing standard?” Is award of over $1 million in punitive damages constitutionally excessive in case involving theft of cattle worth approximately $5,000? Bennett v. [&hellip… Continue Reading