Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of March 15, 2010

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.

Lease Fin. Group, LLC v. Childers,    No.  02-09-00010-CV    (Mar. 18, 2010)    (Gardner, J., joined by McCoy, J.; Walker, J., dissents with opinion).  [Note: both opinions at the same link.]

Held:    No presumption of due service arises from a recitation of due service in a judgment in garnishment. Further, when the record does not contain a certificate of service, an officer’s return, or an affidavit showing service of notice, the party contending it properly sent notice has the burden of proving proper notice under rule 21a. Because there was no presumption of service or receipt of notice and because Appellees did not prove they served Appellant with a copy of the writ of garnishment as soon as practicable as required by rule of civil procedure 663a, the trial court erred by denying Appellant’s motion for new trial.

Dissent:     Because LFG failed to meet its initial motion for new trial burden of presenting evidence or a sworn allegation that LFG did not receive notice or the date on which LFG did receive notice so that the trial court could determine whether that notice was provided as soon as practicable, the dissent would hold that no evidence exists to rebut the judgment’s recitation of proper notice, so the trial court did not abuse its discretion by denying LFG’s motion for new trial.

Mandell v. Mandell,     No. 02-08-00290-CV    (Mar. 18, 2010)    (Walker, J., joined by Dauphinot and Gardner, JJ.).

Held:     Because the evidence establishes the “comparable sales value” for Lance’s 22,000 shares of the Association’s stock was $11,000 based on prior sales by former physician-shareholders and because $11,000 is the only price that Lance’s stock may be sold at, the trial court did not abuse its discretion by valuing the stock at $11,000 under a comparable sales valuation and as mandated by the Shareholders Agreement even though Susan did not sign it. Additionally, because Susan’s offer of proof did not include testimony or evidence that might have been relevant to establish that the value of Lance’s stock to him was greater than the $11,000 value set by the Shareholders Agreement, the trial court did not abuse its discretion by refusing to admit the valuation evidence propounded by Susan.
Moreover, because Susan has not shown that any error by the trial court in granting Lance’s motion for judgment notwithstanding the verdict, setting aside the jury’s finding that Lance had incurred $0 in reasonable and necessary attorney’s fees, and finding that Lance had conclusively established that he had incurred reasonable and necessary attorney’s fees in the amount of $200,000 probably resulted in the rendition of an improper judgment, we hold that the trial court did not err by granting Lance’s motion for judgment notwithstanding the jury’s verdict and did not abuse its discretion in the overall division of the community estate.

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