Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of March 3, 2008

NOTE: Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues. The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

In re M.C.T., No. 2-07-170-CV (Mar. 6, 2008) (Holman, J., joined by Walker and McCoy, JJ.).: Held: The evidence is legally and factually sufficient to support the trial court's termination findings under subsections 161.001(1)(D) and (E) of the family code and best interest finding under section 161.001(2). Appellant also failed to rebut the strong presumption that her counsel's conduct fell within the wide range of reasonable professional assistance.

Reber v. Todd, No. 2-07-104-CV (Mar. 6, 2008) (McCoy, J., joined by Cayce, C.J., and Dauphinot, J.).: Held: An age discrimination lawsuit defendant is entitled to a jury question on the "mixed motive" defense under labor code section 21.125(b)—that even though age was a motivating factor for an adverse employment practice, if a defendant demonstrates that it would have taken the same action even in the absence of the impermissible motivating factor, the court may grant attorney's fees and costs but may not award damages—if the evidence produced at trial raises the issue, regardless of whether the plaintiff has chosen to advance the “mixed motive” theory of discrimination. It is the evidence adduced at trial, and not the plaintiff's pleadings, that determines whether the "mixed motive" issue is submitted to the jury.

Northwest Constr. Co. v. The Oak Partners, L.P., No. 2-07-293-CV, and In re Northwest Constr. Co., No. 2-07-328-CV (Mar. 6, 2008) (Livingston, J., joined by Walker, J.; Dauphinot, J., dissents and concurs with opinion). [Note: Both opinions are at the same link in one document.]: Held: The FAA does not pre-empt the TGAA in this dispute over alleged design defects in the construction of a nursing home; thus, this court has jurisdiction over the interlocutory appeal. Northwest waived its right to arbitrate its dispute with Oak Partners by—during the nineteen months after answering Oak Partners' original petition—substantially participating in discovery, filing a counterclaim and amended counterclaim against Oak Partners, filing cross claims against several subcontractors involved in the suit, filing a partial motion for summary judgment, and agreeing to extensions of discovery deadlines and at least one trial setting. Because Oak Partners submitted evidence proving that it was prejudiced by Northwest's participation and delay, the trial court's order denying Northwest's motion to compel arbitration was affirmed as to the dispute between Northwest and Oak Partners. However, because the subcontractors did not submit any evidence of prejudice, the trial court's order was reversed as to the claims among Northwest and the subcontractors. The petition for writ of mandamus was dismissed because Northwest did not introduce any evidence of interstate commerce implicating the FAA.; Dissent/Concurrence: Because I do not believe that Oak Partners showed sufficient prejudice to overcome the strong presumption against waiver, I would reverse the trial court's order in its entirety and remand for arbitration on all claims.

Garrett v. Williams, No. 2-07-308-CV (Mar. 6, 2008) (Livingston, J., joined by Gardner and Walker, JJ.): Held: A petition for writ of mandamus is subject to the requirements of chapter 14 of the civil practice and remedies code which governs pro se suits filed by indigent inmates. Therefore, the district court could properly dismiss appellant's petition upon finding that it was frivolous under chapter 14.; The district court's order dismissing appellant's petition as frivolous is proper because the court did not have subject matter jurisdiction to order mandamus relief. Additionally, even if the district court had subject matter jurisdiction, appellant's petition was frivolous because he failed to file a separate affidavit describing previous lawsuits as required by section 14.004(a). Finally, the district court's dismissal with prejudice was improper because appellant was capable of remedying these defects.