Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of September 14, 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.

Estorque v. Schafer,   No. 02-08-00424-CV    (Sept. 17, 2009)   (Gardner, J., joined by Dauphinot, J.; Livingston, J., dissents without opinion).

Held:   The trial court abused its discretion by denying Dr. Estorque’s and Dr. Awan’s motion to dismiss on the ground that the challenged medical expert report was deficient for failing to establish causation. The expert report failed to adequately describe the causal link between Dr. Awan’s and Dr. Estorque’s breaches and the Schafers’ injury and thus failed to provide the trial court with sufficient information to determine that the Schafers’ claims have merit. The case is remanded for the trial court to consider granting a thirty-day extension.

Critz v. Critz,   No. 02-08-00015-CV    (Sept. 17, 2009)   (Cayce, C.J., joined by Gardner, J.; Livingston, J., dissents and concurs with opinion).  [Note: Both opinions are at the same link in one document.]

Held:   The evidence is legally insufficient to rebut the parental presumption codified in Texas Family Code section 153.131 as to the mother based on the trial court’s finding of voluntary relinquishment. In addition, the evidence is factually insufficient to rebut the presumption as to both parents based on the trial court’s finding that their appointment as joint managing conservators would significantly impair the physical health or emotional well-being of the child. Therefore, the provisions of the decree of divorce appointing grandparents joint managing conservators with the right to primary possession of the child is reversed and rendered in part and reversed and remanded in part for a new trial on the issue of joint managing conservatorship. Section 153.131 does allow the trial court to decide the issue of primary possession apart from the determination of joint managing conservatorship.

The majority also held that the trial court correctly applied the parental presumption codified in section 153.131 to both parents when it made its joint managing conservatorship appointment, but that it erred in finding that the presumption was rebutted without making specific findings required by sections 153.131 and 153.373 of the family code. This error, however, was waived by the mother’s failure to complain in the trial court.

Concurrence and Dissent:    Precedential decisions of the Texas Supreme Court and our own court establish that grandparents are not required to overcome the statutory parental presumption to be named joint managing conservators of a child when the child’s parents are also both named managing conservators. The addition of a rebuttable presumption in the family code that “the appointment of the parents of a child as joint managing conservators is in the best interest of the child” does not warrant departure from precedent because in this case, the parents were both named managing conservators. However, the parental presumption must apply to the right to designate a child’s primary residence, which is a core right of managing conservatorship and a fundamental liberty interest.

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