Lay Opinion – Reversed and Rendered

  • Spaulding v. Sumrall
    • 09-16-00153-CV, 2018 WL 2339619
    • County Court at Law No. 1 of Jefferson County
    • Justice Horton, May 24, 2018
  • The plaintiff exchanged his catamaran for the defendant’s 1974 Corvette Stingray and cash. After learning that the car was not in the condition as represented, plaintiff filed suit under the DTPA. The trial court allowed the plaintiff to prove his damages from his own lay testimony that he was familiar with the market value of Stingrays by looking on the internet at trade price lists.
  • The Ninth Court found that a property owner is generally qualified to testify to the value of his property even if the owner is not an expert; this rule is based on the assumption that the owner is familiar with the owner’s own property. In this case, however, the plaintiff must have shown knowledge of the Stingray’s value when the trade was made between the parties. The plaintiff did not have the expertise to provide the trial court with a reliable opinion regarding the market value of 1974 Stingray; thus, his testimony was legally insufficient to support the damage award.

Certificate of Merit – Reversed and Remanded

  • Barron, Stark & Swift et al. v. First Baptist Church, Vidor, Texas
    • 09-17-00470-CV, 2018 WL 2246571
    • 128th District Court of Orange County
    • Justice Kreger, May 17, 2018
  • First Baptist Church of Vidor hired Appellants for a large renovation project; water intrusion problems arose and mold resulted. First Baptist filed a petition alleging multiple construction claims against the Appellants but failed to include certificates of merit required under section 150.002 of the Texas Civil Practice and Remedies Code. Once Appellants filed a motion to dismiss, First Baptist amended its claims to include certificates of merit. Appellants argued that the certificates of merit were untimely and that First Baptist was not entitled to an extension per the statute.
  • The trial court denied the motion to dismiss.
  • The Ninth Court held that per the statute’s language, a claim that fails to file a certificate of merit as prescribed results in a complete dismissal against the defendant unless the plaintiff qualifies for an extension. First Baptist failed to meet the prerequisites for an extension; thus, the certificate of merit was untimely, and the trial court abused its discretion.

New Trial – Pet. Granted

  • In re Enterprise Refined Products Company, LLC
    • 091800069CV, 2018 WL 2246584
    • 172nd District Court of Jefferson County
    • Per Curiam, May 17, 2018
  • The trial court granted plaintiff’s motion for new trial after the jury apportioned responsibility 70% on the plaintiff and 30% on the defendant.
  • Further, trial court held that (1) insufficient evidence supported the jury’s findings on plaintiff’s contributory negligence, (2) the great weight and preponderance of the evidence supports larger damage awards than the jury awarded, and (3) the defendant’s jury argument that plaintiff should not have been on the gangway because he was supposed to be on light duty due to a previous injury was improper and so prejudicial that it could not have been cured by an instruction to disregard, and a new trial was required.
  • Ninth Court held that (1) there was ample evidence for the jury to place liability on the plaintiff, (2) the finding of liability rendered the damages questions immaterial, and (3) the defense’s argument did not reach to the level of being incurable. The trial court is to vacate its order granting new trial and reinstate the jury’s findings.

Standing – Reversed and Remanded

  • In the Interest of T.R.H. Jr.
    • 091700001CV, 2018 WL 2246545
    • 75th District Court of Liberty County
    • Justice Kreger, May 17, 2018
  • The trial court named mother and father as joint managing conservators of the minor, including a provision in the final order that provided for paternal grandmother’s right of first refusal for keeping the child during working hours. Grandmother was not a party to the suit. Mother later sought to modify the order, and grandmother filed a motion to intervene. Mother filed a motion to dismiss, and the trial court dismissed the grandmother’s suit on the grounds that she lacked standing to initiate or intervene in the lawsuit.
  • The Ninth Court held that the grandmother was a “party affected by an order,” and reversed the trial court.

Arbitration – Reverse and Remanded

  • The Sinclair Group, LTD. v. Haggblom
    • 548 S.W.3d 40
    • 284th District Court of Montgomery County
    • Justice Horton, April 12, 2018
  • Sinclair appealed the trial court’s denial of their motion to compel arbitration. The crux of the dispute fell on whether the appraised complied with the appraisal method establish in the parties’ agreements. Haggblom argued that the appraiser’s opinion was final because the appraisal provision in the agreement stated that “determination of the [fair market value] . . . shall be binding upon the parties.” Sinclair, on the other hand, argued that the term “binding” did not overrule an arbitrable dispute.
  • The Ninth Court found that the parties’ agreements required the parties to arbitrate “[a]ny and all disputes, controversies, or claims arising out of or relating” to the agreements; therefore, given the broad scope of the arbitration agreement language, the dispute over the appraisal method was an arbitrable issue. Noting the State’s public policy of strongly favoring arbitration, the Ninth Court held that the trial court erred by denying the motion to compel arbitration, reversed the order, and remanded the case to resolve the dispute through arbitration.

DWOP – Pet. Denied

  • In re Nowell
    • 548 S.W.3d 104
    • 60th Court of Jefferson County
    • Justice Kreger for the Majority, April 5, 2018
    • Justic Horton for the Dissent
  • Relators answered the suit filed by Henson in February 2010. After the parties conducted initial discovery, the case remained dormant until the election of a new trial judge in January 2017. The new judge set the case on the trial docket for April 2018. Subsequent to the case being set on the trial docket, Relators filed a motion to dismiss for want of prosecution and alternatively, for a continuance.
  • In response to the trial setting and motion to dismiss, Henson’s counsel designated experts and stated that he was unaware that the case had appeared on a dismissal docket. The trial court denied the motion to dismiss but granted a continuance of the case. Relators then filed this mandamus action challenging the judge’s denial of the motion to dismiss.
  • The majority of the Ninth Court noted that a delay of unreasonable duration will raise a conclusive presumption of abandonment of the suit and that the Rules of Judicial Administration provide that civil jury cases are to be brought to final disposition within 18 months of the appearance date. The majority of the Ninth Court then concluded that because Henson had submitted to a deposition, obtained medical records, and responded to requests for discovery, sufficient facts were before the trial court to enable it to conclude that the delay was not attributable to conscious indifference but because both the trial court and plaintiff’s counsel had inadvertently lost track of the case.
  • In his dissenting opinion, Justice Hollis Horton challenged the majority’s opinion regarding the reasonableness of the explanation offered by Henson’s counsel. In particular, Justice Horton noted that the Record was completely devoid of any explanation for the delay by the “attorney in charge” of Henson’s case; that is, the only explanation was one provided by an associate attorney, and the associate gave no reasonable explanation for the significant delays.

Expert Designation – Reversed and Remanded

  • Oyoque v. Henning
    • 09-17-00018-CV, 2018 WL 1527892
    • 284th District Court of Montgomery County
    • Justice Kreger, Mar. 29, 2018
  • Henning sued Oyoque to enforce the restrictive covenants contained in the deed restrictions for the Lake Chateau Woods subdivision The jury found in favor of Henning. On appeal, Oyoque challenged the trial’s court’s striking of his experts, among other things.
  • The Ninth Court noted that (1) Henning never sent a request for disclosure to Oyoque, (2) the trial court’s discovery control order did not provide for the designation of expert witnesses, and (3) thus, Rule 195 governed the parties’ disclosure of experts, the comments of which state that “[d]isclosure is designed to afford parties basic discovery of specific categories of information, not automatically in every case, but upon request.”
  • The Ninth Court found that Oyoque, under Rule 195.2, was not required to “furnish information requested,” because no such information had been requested. As a result, he had no affirmative duty to designate experts, and the Ninth Court reversed the judgment and remanded the case.

Expert Designation – Affirmed

  • Guardianship of Hoffpauir
    • 09-16-00152-CV, 2018 WL 1321509
    • County Court at Law of Orange County
    • Justice McKeithen, Mar. 15, 2018
  • Hoffpauir complained that the trial court abused its discretion by excluding  her expert witness’s offered testimony regarding audio recordings. The Respondents contended that the audio recordings and the offered opinions were not disclosed by Hoffpauir in her designation of experts; Texas Rule of Civil Procedure 193.6 is mandatory absent a showing of good cause or lack of unfair prejudice.
  • The Ninth Court held that Hoffpauir never amended or supplemented her designation of experts to disclose that her expert had relied upon the audio recordings or that the expert would be called upon to give an opinion concerning the audio recordings. Given that the testimony was offered for the first time at trial, there was no good cause or lack of prejudice shown. The Ninth Court found that under Rule 193.6, the trial court did not abuse his discretion.

Developer’s Rights – Reversed and Rendered

  • Benders Landing Estates Prop. Owners Ass’n, Inc. v. LGI Land, LLC
    • 09-16-00183-CV, 2018 WL 1188814
    • 284th District Court of Montgomery County
    • Justice Kreger, Mar. 8, 2018
  • The property owners association for the Benders Landing Estates community filed suit against LGI Land, LLC, the property developer. LGI executed a Declaration of Covenants, Conditions, and Restrictions for the community, which passed certain rights and powers from LGI to the POA.  The Assignment of Developer’s Rights, however, attempted to reserve some of those rights to LGI. The POA filed a motion for summary judgment arguing that the Assignment was an improper reservation of rights. Conversely, LGI filed a motion for summary judgment arguing that the Assignment was a valid and enforceable contract. The trial court  granted LGI’s motion.
  • The Ninth Court held that because “the Declaration contains an amendment provision governing the manner and mechanism for making changes, any amendment to that restrictive covenant must be in the ‘precise manner’ authorized by the Declaration.” The Ninth Court found that the Assignment constituted an attempt to amend the Declaration and did not comply with the “precise manner” for amendments as specified in the Declaration. The Ninth Court concluded the Assignment was void and rendered judgment in favor of the POA.

TTCA Notice – Reversed and Rendered

  • Texas Dep’t of Criminal Justice v. Cisneros
    • 09-17-00161-CV, 2018 WL 1095533
    • 88th District Court of Tyler County
    • Justice Kreger, Mar. 1, 2018
  • While incarcerated by the TDCJ, Cisneros suffered an injury by a woodworking saw and sued the TDCJ for negligence. In response, the TDCJ filed a plea to the jurisdiction on the basis that Cisneros failed to file a notice of his claim within statutory deadlines. Cisneros, on the other hand, argued that the TDCJ’s own incident report put the TDCJ on actual notice of the claim and formal written notice was not needed. The trial court denied  TDCJ’s plea to the jurisdiction.
  • The Ninth Court held that for TDCJ to have actual knowledge, it must have: (1) knowledge of the injury; (2) subjective awareness of it’s alleged fault producing or contributing to the injury; and (3) knowledge of the identity of the person involved.  Subjective awareness is required, the Ninth Court noted, otherwise the TDCJ does not have the same incentive to gather the information that the statute is designed to provide. The Ninth Court noted that “fault”, as regards actual notice, is not synonymous with “liability”; rather, it implies responsibility for the injury claimed.
  • In this case, the results of TDCJ’s investigation indicated that Cisneros, not TDCJ, was responsible for the accident. Therefore, the TDCJ was not shown to have subjective awareness of any fault of its own in producing Cisneros’ injuries or otherwise found to have sufficient notice.
  • The Ninth Court reversed the trial court’s order denying the plea to the jurisdiction, and rendered judgment dismissing Cisneros’ claims.