Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of April 9, 2007

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 can be accessed by clicking the cause number then clicking View HTML Version of Opinion.

Ethicon Endo-Surgery, Inc. v. Meyer, No. 02-05-00071-CV (Apr. 12, 2007) (Gardner, J., joined by Brigham, J.; Dauphinot, J., dissents with opinion).: Held: In this marketing-defect case concerning a surgical stapler used on Appellee, Appellant's failure to warn Appellee's surgeon of the risks of using the stapler was not a producing cause of Appellee's injury because the surgeon testified that he had independent knowledge of the risks.; Dissent: Appellee's surgeon‘s testimony does not conclusively negate the producing cause element; consequently, there was evidence of causation. Because anything more than a scintilla of evidence is legally sufficient to support the jury finding, I dissent from the majority's reversing and rendering on this ground.
Mead v. RLMC, Inc., No. 02-06-00092-CV (Apr. 12, 2007) (Dauphinot, J., joined by Walker, J.; Cayce, C.J., dissents with opinion).: Held: A party may not establish adverse possession of real property by using the land in question only for occasional grazing without designedly enclosing the disputed property. A party may, however, establish adverse possession without designedly enclosing the land if the party makes such actual and visible use of the property that he puts the true owner on notice of the party’s adverse claim. Here, Appellees' summary judgment evidence did not conclusively establish that the disputed acreage was not designedly enclosed, that it was not used continuously by Appellants or their tenants for grazing or for other nongrazing purposes, and that Appellants had not made actual and visible use of the disputed acreage for the statutory period.; Dissent: The summary judgment evidence conclusively establishes that Appellants did not designedly enclose the disputed property; that Appellants never substantially modified the fence on the northern boundary of the disputed property so as to change the fence’s character; that the disputed property was not used continuously by Appellants or their tenants such that Appellees had notice of a hostile claim; and, that Appellants have not made actual and visible use of the disputed property for the statutory period of ten years. Therefore, there is no genuine issue of fact, and Appellees are entitled to summary judgment as a matter of law.