Summaries of Civil Opinions and Published Criminal Opinions Issued – Week of April 06, 2009

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.

Mikey’s Houses LLC v. Bank of Am., N.A.,   No. 02-05-00397-CV    (Apr. 7, 2009)   (Op. on Remand) (judgment and order vacating prior op. and judgment, recalling mandate, and issuing new mandate) (Livingston, J., joined by Gardner, J.; Walker, J., dissents with opinion).  [Note: Both opinions are at the same link in one document.]

Held:   In accordance with the supreme court’s directive in In re Bank of Am., N.A., No. 07-0901, 2009 WL 490065 (Tex. Feb. 27, 2009) (per curiam), we vacate our opinion and judgment of May 3, 2007, and reinstate the trial court’s order enforcing the parties’ jury waiver.

Dissent:   Once this court issued mandate on September 13, 2007, in the parties’ interlocutory appeal, this court, according to the rules of appellate procedure, lost plenary power, the ability to vacate or modify the judgment, and the ability to alter the opinion other than to correct a clerical error. No authority authorizes this court, twenty months after mandate has issued, to reinstate the trial court’s June 2, 2005 order enforcing the jury waiver. Therefore, the dissent does not believe this court possesses jurisdiction to comply with the instructions of the Supreme Court of Texas as set forth in its February 27, 2009 per curiam opinion.

AMX Enters., L.L.P. v. Master Realty Corp.,   No. 02-07-00239-CV    (Apr. 7, 2009)   (op. on reh’g) (Gardner, J., joined by Walker, J.).

Held:   Statutory interest awarded to a prevailing claimant under the Prompt Payment to Contractors Act is not subject to tolling for periods of litigation delay allegedly caused by the claimant; a prevailing claimant may not recover both statutory interest under the Act and common-law prejudgment interest; and in-house counsel’s attorney’s fees should be calculated at the market rate for similar services, not by the “cost-plus” method. On Appellant’s motion for rehearing, the court remands the disposition of the funds in the trial court’s registry.

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