Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of April 30, 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.

Mikey's Houses LLC v. Bank of Am., N.A., No. 02-05-00397-CV (May 3, 2007) (Walker, J., joined by Gardner, J.; Livingston, J., dissents with opinion).: Held: In this interlocutory appeal from the trial court's order enforcing a prelitigation contractual jury waiver, Bank of America failed to offer prima facie evidence that the waiver was made knowingly and voluntarily with a full understanding of the consequences. Consequently, Bank of America did not rebut the presumption against waiver of the constitutional right to trial by a jury. We therefore reverse the trial court's order enforcing the waiver.; Dissent: Because the jury waiver provision was conspicuous and expressly stated that it was knowing and voluntary, Bank of America met its burden to produce prima facie evidence that the waiver was made knowingly and voluntarily. Thus, the burden shifted to Appellants to rebut Bank of America's evidence of a knowing and voluntary waiver, which they failed to do. Furthermore, Appellants' claims fall within the scope of the waiver. Accordingly, we should affirm the trial court's order enforcing the jury waiver.
Auldridge v. State, No. 02-05-00409-CR (May 3, 2007) (Cayce, C.J., joined by Dauphinot and Walker, JJ.).: Held: In this intoxication manslaughter case, the phrase “at a high rate of speed” was not an essential element of the offense or a manner and means of committing the offense. Therefore, the State's deletion of this phrase from the indictment did not trigger the requirements of article 28.10(a) of the code of criminal procedure, and the trial court did not err by denying Appellant's request for a ten-day continuance following the amendment.