Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of August 13, 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.

In re C.A.P., No. 02-06-00342-CV (Aug. 16, 2007) (Livingston, J., joined by Walker and McCoy, JJ.).: Held: The trial court did not err by granting Appellee's special exceptions to Appellant's petition to modify the standard possession order to an extended possession order and by subsequently dismissing Appellant's case after his failure to replead. Section 153.317 of the family code does not allow a conservator to ask for extended possession in an independent proceeding; rather, such a request must be made before or at the time of rendition of an original SAPCR order or an order in a subsequent modification proceeding.
The Profitlive P'ship v. Surber, No. 02-05-00188-CV (Aug. 16, 2007) (Cayce, C.J., joined by Dauphinot, J.;Walker, J., concurs and dissents with opinion).: Held: Appellees' summary judgment evidence raises a material fact issue regarding the amount of their damages; therefore, the summary judgment for Appellees on their causes of action is improper. Further, appellate rule 44.1(b) provides that we may not order a separate trial solely on unliquidated damages if liability issues are contested. Rule 44.1(b)'s restriction applies in this case because the damages are unliquidated; therefore, we reverse the entire summary judgment and remand the case for a new trial on both liability and damages. Because this disposition comports with Profitlive's prayer and affords Profitlive the greatest relief we can grant it on appeal, we need not address Profitlive's remaining appellate arguments.; Concurrence & Dissent: Concurs with reversal of summary judgment; dissents because the majority leaves unresolved an issue expressly presented to this court: whether the seventy-three merits-preclusive deemed admissions should be set aside by virtue of this appeal.