33rd / 424th District Courts

Set for oral argument on 2/16/05 in the Texas Supreme Court is the following case from the 33rd. Because of the interest in this area generally of equine activities, it may be of fairly broad interest. I granted summary judgment for the camp and was reversed by the 3rd Court ( 124 S.W.3d 633) which held that the immunity was only for factors beyond the control of the camp. (update: the review in the Sup. Ct. was withdrawn).

Facts: Search Warrant incorporated the probable cause affidavit by reference. The SW did not itself describe the premises to search. The affidavit did and was sufficient in that regard. The SW did not have the affidavit physically attached (such as by stapling) and the copy served on D did not have the affidavit attached.

Issue: Are FF and CL due under Rule 296 following a dismissal for Lack of Subject Matter Jurisdiction? I was frankly unsure when receiving same recently but the theory and utility of FF&CL did not seem to make sense in that context. Westlaw to the rescue and thus:

Facts: Service of Motion for Summary Judgment was attempted by U.S. Mail, Cert. RRR. Envelope was returned by USPS as "unclaimed" with notations of notices (the yellow slip) having been left twice. Summary Judgment was granted. Dft files Motion for New Trial with an affidavit that he never received either the MSJ or any notice from the post office that mail had been sent to him. P offered no evidence to the contrary.

I've recently had a few instances of objections to counsel going into the general facts of the case during voirdire. The objections have been overruled. I began to second-guess myself on the point so looking at Dorsaneo, I find:

(attached file in PDF form) MEMO TO: District Attorney Office and Criminal Defense Bar March 4, 2003

FACTS: P files suit without giving the 60-day notice required under Article 4590i, Section 4.01(a). It was filed prematurely just before September 1, 2003 when the tort reform legislation became effective. See House Bill 4, now Chapter 74, Medical Liability, Civil Practice and Remedies Code which applies only to lawsuits filed after Sept. 1, 2003.

ISSUE: Should the suit be dismissed or abated? It makes a difference. If merely abated, then the old law on damages applies and if dismissed and re-filed, then the new law applies with the caps on damages per HB4.

What is a "witness statement?" Some statements are obvious such as someone interviews a witness and takes down a written statement that is then signed by the witness. Easy.

Take a case of a lot of correspondence between parties, documents exchanged, etc. Some of it may form the basis of the suit such as whether a contract was made. Some of it may be a "statement" made by someone who later becomes a witness, party or not. Is that a "witness statement" as contemplated by the rule? It may become admissible as a statement against interest or for impeachment as a prior inconsistent statement, but is it a "witness statement?"

A series of letters between attorneys (or any other agent of a party) is sufficient to satisfy Rule 11's writing requirement and withdrawal of consent to the settlement does not render such settlement as is set forth in the Rule 11 agreement unenforceable.

I have had some concern on an issue that has been raised tentatively by a few defense attorneys in the area about whether a waiver of appeal (in a plea bargain case) could be effectively made PRIOR to sentencing. The following case makes it clear that the waiver can be contemporaneous with the entire plea process.

(from Monreal v. State, 99 S.W.3d 615; 2003 Tex. Crim. App. LEXIS 57 (Crim App 2003)

Facts: P filed suit prior to giving the 60-day notice required under Section 4.01(a) of Article 4590i (R.C.S.) (now Sect 74.051, CP&RC). D filed Motion to Abate and also sought abatement of all other statutorily imposed deadlines during the same 60 days, such as the 180 days within which to file an expert report.

Ruling: The abatement also extends those deadlines.
Rationale: See Hagedorn, 73 s.W.3d 341 (Amarillo) and Campbell, 44 S.W.3d
647 (Dallas) which are on opposite ends of the argument. Followed Campbell's reasoning and ruling.

Posture: Dueling applications for temporary injunction. P sued on oral contract to purchase land. D seeks TI to toss P off of land. P seeks TI to make D keep hands off during pendency of the action. P resides on the property. D alleges P causing problems on the land.

Allegation: P claims purchase of 10 acres on oral contract alleging statute of frauds not applicable due to occupancy, payment and other factors.

The intent of a referral to mediation ... absent a motion to alter this result ... is to stay everything else happening in the case until mediation can be held. This is because the general theory is that for most cases a significant cost savings and greater likelihood of settlement can be realized by getting into mediation without work and focus on the litigation processes.

Fact situation: Party 1 files a Motion for Summary Judgment. Thereafter the case in referred to mediation. The mediation order issues prior to the setting date on the MSJ. Should the due date for a response to the MSJ be pushed back?

The Setting: Defendant in a criminal case testifies. Guilt or punishment phase. Suddenly he comes to a point in the questioning where he decides to exercise his privilege against self-incrimination.

Question: May the Dft claim the 5th piece-meal or by taking the stand has he waived the privilege for all purposes?

Conclusion: A witness, even the present defendant, may not selectively assert the privilege against self-incrimination.

Where a motion to enforce a mediation agreement was filed and the agreement clearly lacked material terms, the case was returned to mediation rather than being enforced. The Court had not been asked to rule on the missing elements. No. 21,605 (Burnet)

Facts: Punishment phase of the trial where probation was a possibility. Restitution was likely to be a significant amount plus possible fine up to $10,000. State wished to adduce evidence of defendant's lack of financial resources and financial irresponsibility in the past. Also involved the fact that allowing the evidence would virtually guarantee that Dft would need to call Witness "C" to try to explain the circumstances, and that witness was one that the State actually wanted to bring but was not on their witness list.

In a CPS case a person with whom a child has been placed, and who has not filed a petition in intervention, does not have standing to appeal a ruling of the associate judge to the presiding judge. The issue of whether such person may intervene in the case originated by TDPRS is not reached. Cause No. 22,093 (Burnet Co.)

Rule 194.2 T.R.C.P. provides in part for disclosure of
" . . . (d) the amount and any method of calculating economic damages; . . . ."

The Court construes that provision as follows: For any number that you can add up or calculate, tell us the number and how you got it.

In other words, tell the inquiring party the basis for that claim regardless of whether the claim is property damage, lost profits, an offset, claim for reimbursement or otherwise. Tote it up and tell 'em.

FACTS: H has substantial amount of liquid assets alleged to be S/P. W has no claim of S/P. Question of just how much C/P exists.
POSTURE: Hearing on temporary orders with request for interim attorney's fees.
ORDERS: H to advance $10k to W's atty.
When H's atty fees (either paid or incurred or retainer deposited) exceeds $10k then W atty will get advance dollar for dollar to keep funds available for litigation equally available.