Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of August 31, 2009

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.

Mark v. Household Fin. Corp. III, No. 02-08-00191-CV (Aug. 31, 2009) (Dauphinot, J., joined by Walker, J.; Cayce, C.J., dissents with opinion). [Note: Both opinions are at the same link in one document.]: Held: Although Appellee sued Appellants for judicial foreclosure, it moved for summary judgment solely on the ground that it had established its right to judgment on a suit on a sworn account. Because Appellee did not move for summary judgment on a ground for which such relief could be granted, the trial court erred by granting summary judgment for Appellee.; Dissent: Because the trial court awarded the same relief that Appellee sought in its live pleading and summary judgment motion and Appellants filed no special exceptions seeking clarification about relief sought in the motion, any error in identifying the cause of action under which relief was sought is harmless. Appellee established the elements necessary to recover on a promissory note and thus the trial court did not err by granting summary judgment.

Norgaard v. Pingel, No. 02-08-00303-CV (Aug. 31, 2009) (Dauphinot, J., joined by Cayce, C.J.; Walker, J., concurs without opinion).: Held: Appellee asserted a health care liability claim against Appellants, a licensed professional counselor and his professional association. Because both Appellants are health care providers, under civil practice and remedies code section 74.351, Appellee was required to file an expert report in support of her claims.

Helm v. State, No. 02-07-00430-CR (Aug. 31, 2009) (Gardner, J., joined by Walker, J.; Dauphinot, J., dissents with opinion). [Note: Both opinions are at the same link in one document.]: Held: The trial court erred by instructing the jury that it “may consider [Appellant’s] breath test refusal as evidence in this case” because the instruction improperly singled out particular evidence. However, the trial court’s error was harmless. The jury charge was otherwise unexceptional and the weight of the probative evidence militated against harm.; Dissent: The trial court’s error was harmful. The prosecutor’s argument magnified the injury that Appellant suffered as a result of the erroneous instruction, both the instruction and the argument implicate Appellant’s invocation of his Fifth Amendment right to counsel, and the evidence on the legality of the stop, the legality of the seizure, and Appellant’s guilt was at best equivocal.

Liberty Mut. Ins. Co. v. Burk, No. 02-08-00444-CV (Aug. 31, 2009) (Gardner, J., joined by McCoy and Walker, JJ.).: Held: The evidence was legally and factually sufficient to support the trial court’s findings that Appellee’s on-the-job back injury caused his polyneuropathy and foot ulcerations. The decision from an Appeals Panel of the Texas Department of Insurance, Division of Workers’ Compensation was evidence in the case that could support the trial court’s findings. Further, Appellant’s expert testimony was not conclusive because it was internally inconsistent.

Hamilton v. Williams, No. 02-07-00401-CV (Aug. 31, 2009) (Gardner, J., joined by Walker, J.; Dauphinot, J., concurs with opinion). [Note: Both opinions are at the same link in one document.]: Held: The trial court did not abuse its discretion by failing to hold an evidentiary hearing on Appellant’s motion for new trial because Appellant did not raise jury misconduct as a ground in his motion. Appellant’s due process claims pertaining to cell restrictions and loss of commissary privileges had no arguable basis in law; therefore, the trial court did not abuse its discretion by dismissing these claims with prejudice. The trial court properly concluded that Appellant’s privacy claim had no arguable basis in law because Appellant failed to exhaust his administrative remedies.; Concurrence: This court should apply the rule that a trial court must hold a hearing on a motion for new trial if the motion presents a question of fact upon which evidence must be heard and alleges facts that, if true, would entitle the movant to a new trial.

In re J.P., No. 02-08-00267-CV (Aug. 31, 2009) (Gardner, J., joined by Livingston and Dauphinot, JJ.): Held: The Attorney General lacked the authority to release the full obligation of arrearages owed to the custodial parent because there was no evidence that the custodial parent had assigned her support rights over to the Attorney General in return for public financial assistance.