Second Court of Appeals | Case Summaries

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of July 9, 2012

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.

Murphy v. Gutierrez, No. 02-11-00108-CV (July 12, 2012) (Meier, J., joined by Gardner and Gabriel, JJ.).: Held: Appellee-Defendant waived his right to move for dismissal of Appellants-Plaintiffs' claims under section 150.002 of the Texas Civil Practice and Remedies Code by substantially invoking the litigation process. Appellee litigated this case for more than three and one-half years. During that time, Appellee undertook written discovery; deposed the Plaintiffs; participated in being deposed by a Co-Defendant and Cross-Plaintiff; designated an expert witness and presented him for deposition; filed traditional and no-evidence summary judgment motions, which the trial court granted in part; objected to the Plaintiffs' summary judgment evidence; and participated in post-summary judgment mediation. Appellee also entered into an agreement to extend discovery so that a Cross-Claimant could respond to Appellee's counterclaim. Appellee then waited until five days before a scheduled trial on the merits to file his motion to dismiss. Thus, the trial court abused its discretion by granting Appellee's motion to dismiss.

Ex parte Serrato, No. 02-12-00182-CR (July 12, 2012) (Walker, J., joined by McCoy and Meier, JJ.).: Held: The State did not use the two misdemeanor DWI convictions for both jurisdictional and punishment enhancements in violation of section 49.09(g) by alleging the 2002 felony DWI conviction for punishment enhancement purposes because the 2002 felony DWI conviction was a separate conviction from the two misdemeanor DWI convictions, and the State is not required to plead or prove any underlying DWI offenses in order to use the felony DWI conviction to enhance Serrato's punishment.