Second Court of Appeals | Case Summaries

Pakdimounivong v. City of Arlington, No. 02-05-00414-CV (Nov. 30, 2006) (McCoy, J., joined by Dauphinot and Gardner, JJ.).: Held: The trial court properly concluded under the Texas Tort Claims Act that Pakdimounivong did not allege injury from the operation or use of a motor vehicle, nor did she allege injury from the condition or use of tangible or real property. The trial court was not required to make requested additional findings of fact and conclusions of law because the original findings and conclusions properly and succinctly related the ultimate findings of fact and law necessary to support the judgement and apprised Pakdimounivong of adequate information for preparation of her appeal. Finally, based on Texas Rule of Civil Procedure 93, a plea to the jurisdiction need not be verified.
Poteet v. Sullivan et al., No. 02-05-00338-CV (Nov. 30, 2006) (McCoy, J., joined by Livingston and Holman, JJ.).: Held: The trial court erred by granting summary judgment on the grounds of qualified immunity in favor of police officers who performed a "civil standby" for appellant's ex-girlfriend while she moved out of appellant's home because the evidence raised a fact issue as to whether the officers' actions went beyond keeping the peace into providing affirmative aid to the seizure of most of the contents of appellant's home. The trial court did not err by granting summary judgment to the police captain and the town because appellant did not come forward with evidence showing that the captain was personally involved in any violation of appellant's constitutional rights or that the town's official policy was the moving force behind any such violation.
Warrantech Corp., et al. v. Steadfast Ins. Co., No. 02-05-00351-CV (Nov. 30, 2006) (Gardner, J., joined by Cayce, C.J., and Walker, J.).: Held: The fortuity doctrine precludes an insurer's duty to defend under the claims-made insurance policy at issue. Allegations in the underlying suit compel the conclusion that the insured knew before the insurance policy's inception date that its mispayment of warranty claims resulted in a "loss," regardless of whether the mispayment was intentional or merely negligent. Thus, the loss was not fortuitous, and the insurer has no duty to defend the insured in the underlying suit.
Miga v. Jensen, No. 02-05-00277-CV (Nov. 30, 2006) (Holman, J., joined by Livingston, J.; Cayce, C.J., dissents with opinion).: Held: The trial court properly returned funds to Jensen that he had previously tendered to Miga pursuant to an Agreed Order the parties entered into for the purpose of stopping the running of post-judgment interest on a judgment in favor of Miga, most of which was later reversed. Although Miga is not collaterally estopped from asserting the Agreed Order as a defense to Jensen's claim for reimbursement, Jensen proved he was entitled to have the funds returned to him under the theory of restitution.; Dissent: As a matter of law, three irrefutable facts preclude Jensen from recovering from Miga under the theory of restitution: (1) Jensen made an "unconditional tender" of the funds to Miga pursuant to the clear and unambiguous terms of their Rule 11 agreement (the Agreed Order); (2) Jensen reserved the right to appeal the judgment, but he did not reserve the right to a refund of the payment in the event his appeal was successful; and (3) Jensen paid the money to Miga voluntarily—he had no obligation to pay any amount of money to Miga to satisfy the judgment because he had posted a supersedeas bond that fully secured the judgment. In holding that Jensen can recover from Miga despite the existence of these facts, the majority has violated well-established principles of contract interpretation and misapplied the principles of duress and the voluntary payment rule.

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of November 27, 2006