Second Court of Appeals

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of December 18, 2017.

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.

Bedford Internet Office Space v. Tex. Ins. Grp., Inc., No. 02-17-00009-CV (Dec. 21, 2017) (Sudderth, C.J., joined by Kerr and Pittman, JJ.).

Held:  The trial court erred by dismissing the Plaintiff’s claims under rule 91a on the basis of the statutes of limitations because doing so required the trial court to look beyond the Plaintiff’s pleadings and consider whether the defendant raised the affirmative defense of statute of limitations in its pleadings, which is expressly prohibited by the plain language of rule 91a.

Tex. Juvenile Justice Dep’t v. PHI Inc., Nos. 02-17-00013-CV, 02-17-00014-CV (Dec. 21, 2017) (Kerr, J., joined by Pittman, J.; Sudderth, C.J., dissents with opinion).

Held: Because Appellant’s van was unoccupied and its ignition was off when it rolled into and damaged Appellee’s parked helicopter, it was not being operated or used within the meaning of those terms under section 101.021(1)(A) of the Texas Tort Claims Act because a state employee was not actively operating or using the van at the time of the accident.

Dissent:  The final act of operating a motor vehicle includes securing it for safe non-operation.  Accordingly, the factual dispute as to whether the state employee properly set the brake on the van would preclude the granting of the plea to the jurisdiction because if the facts are as Appellee alleges, the property damage arose from the employee’s negligent operation of a motor-driven vehicle.

In re G.V., No. 02-17-00220-CV (December 18, 2017) (Kerr, J., joined by Pittman, J.; Walker, J., dissents with opinion).

Held: In a suit to terminate parental rights where the parties reached a mediated settlement agreement under family code section 153.0071 to (1) transfer managing conservatorship from the Department of Family and Protective Services to the children’s relatives and (2) make the parents possessory conservators, the trial court did not err by entering judgment on the MSA under section 153.0071(e) notwithstanding the parents’ argument that section 153.0071(e) did not apply because this was a termination suit under chapter 161 of the family code. The parents’ complaints that portions of the judgment were unenforceable because they restricted when and under what conditions the parents could file a motion to modify were not ripe because the parents had not yet filed a motion to modify and the trial court had not yet ruled on the restrictions’ alleged invalidity.

Dissent:  Because the State’s contractual rights to enforce a mediated settlement agreement in a parental-rights-termination suit do not trump the inherent, constitutional, and statutory rights that Texas parents possess concerning their children, the dissent would hold that custody contracts made under family code section 153.0071 are not enforceable in chapter-161-termination-of-parental-rights suits.