Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of August 20, 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.

Cunningham v. Haroona, No. 02-07-00231-CV   (Aug. 23, 2012)    (Gardner, J.; Livingston, C.J., concurs and dissents with opinion; Dauphinot, J., concurs without opinion).<  [Note: both opinions at the same link.]

Held: Appellants sufficiently preserved their contention that the trial court erred by submitting their survival cause of action in the jury charge in a manner that permitted the jury to answer the survival questions only if it found that no defendant's negligence caused death. However, Appellants were not entitled to submission of their survival cause of action because they presented no evidence of a distinct, nonfatal injury proximately caused by the negligence of Appellee, and any survival damages would have thus been cumulative of the wrongful death damages found by the jury in an earlier question.

Concurrence and Dissent: The majority's conclusion that Appellants were not entitled to submission of their survival cause of action because they presented no evidence of a distinct, nonfatal injury proximately caused by the negligence of Appellee is contrary to the evidence of pre-death pain and suffering recited by the majority in its opinion; Appellants presented ample evidence that Cunningham experienced pre-death pain and suffering sufficient to entitle them to submission of the issue. But because Appellants concede that damages awarded by the jury already included damages for pain and suffering, there is no harm and therefore no right to a new trial.

Halleman v. Halleman, No. 02-11-00184-CV  Aug. 23, 2012)   (Meier, J., joined by Gardner and McCoy, JJ.).

Held: The evidence is factually sufficient to support the jury's finding awarding Edward the exclusive right to designate L.L.H.'s primary residence because the jury reasonably could have (1) determined that Aimee and several of her purportedly impartial, third-party witnesses were less credible than Edward and several of his witnesses; (2) resolved conflicting evidence in favor of Edward; and (3) given less weight to Aimee's and some of her witnesses' testimony than to Edward's and some of his witnesses' testimony.

City of Haltom City v. Aurell, No. 02-11-00197-CV  (Aug. 23, 2012)   (Livingston, C.J., joined by Gabriel, J.; Dauphinot, J., dissents with opinion).  [Note: both opinions at the same link.]

Held: The trial court erred by denying Appellant's motion for summary judgment. Concerning Appellees' premises defect claim, they did not present a scintilla of evidence establishing that Appellant failed to exercise ordinary care after receiving actual knowledge of the relevant dangerous condition, which was the June 2007 flood. Also, appellees did not present evidence creating genuine issues of material fact on essential elements of their negligent undertaking claim under Wilson v. Tex. Parks & Wildlife Dep't, 8 S.W.3d 634, 635 & n.4 (Tex. 1999). Appellees did not present more than a scintilla of evidence that they relied on Appellant's undertaking to abate the danger of flooding or that Appellant's undertaking increased Appellees' risk of harm.

Dissent: The summary judgment evidence supports the trial court's decision.

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