Category Archive for: ‘Texas Trial Law Advocate’

An Overview of Collateral Estoppel in Adversary Proceedings

Collateral estoppel applies to adversary proceedings. The doctrine of collateral estoppel or issue preclusion provides that “when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Dowling v. United States, 493 U.S. 342, 347 (1990) (citing Ashe v. Swenson, 397 …

Read More

Texas Franchise Tax Challenged

The Texas Supreme Court heard arguments this week in a case that could have significant implications on the Texas franchise tax. Nestle USA and two Texas-based companies, Switchplace LLC and NSMBA Relators, sued the State of Texas arguing the Texas franchise tax is unconstitutional.  The franchise tax charges one-half of one percent to wholesalers, but a full one percent to …

Read More

Update: Arbitration Provision in Trust Enforceable

In Rachal v. Reitz, No. 11-0708, 2013 WL 1859249 (Tex. May 3, 2013), the Texas Supreme Court determined whether an arbitration provision contained in an inter vivos trust was enforceable against the trust beneficiaries. The trust contained a provision requiring all disputes regarding the trust and the trustee to proceed to arbitration. When a trust beneficiary sued the trustee alleging that the trustee …

Read More

Introduced Bill Would Allow Substituted Service via Facebook

Last week, the Texas Legislature introduced H.B. No. 1989 which, if enacted, would allow substituted service through social media websites in certain circumstances.  Under the proposed bill, if a court authorizes substituted service under the Texas Rules of Civil Procedure, the court may order service via an electronic communication sent to the defendant through a social media website. The court …

Read More

Rule 11 Agreement Filed Over A Year After It Was Signed Is Enforceable

In Markarian v. Markarian, the Dallas Court of Appeals upheld a trial court’s ruling that a final divorce decree signed by the parties, and filed over a year after it was signed, was enforceable pursuant to Rule 11 of the Texas Rules of Civil Procedure. Rule 11 provides that agreements must be (1) in writing, (2) signed, and (3) filed …

Read More

Supreme Court of Texas to Issue Decision on Spoliation of Evidence

The Surpreme Court of Texas heard argument in September 2012, in Brookshire Bros., Ltd. v. Aldridge, No. 12-08-00368-CV, 2010 WL 2982902 (Tex. App.—Tyler July 30, 2010, pet. granted) (mem. op.). The issues presented involve whether the trial court erred by admitting evidence of spoliation and including a spoliation instruction in the jury charge of a slip-and-fall case. Aldridge slipped and fell …

Read More

Texas Supreme Court Enforces “Differing Site Conditions” Clause

 In El Paso Field Services, LP v. MasTec North America, Inc., No. 10-0648, 2012 WL 6634023 (Tex. Dec. 21, 2012), MasTec entered into a lump sum contract with El Paso to construct a $ 3.6 million butane pipeline for El Paso.  The contract contained a “differing site conditions” clause, which shifted the risk for unanticipated conditions to MasTec. MasTec also …

Read More

Texas Supreme Court Holds Chiropractor Had a Duty to Disclose

In Felton v. Lovett, No. 11-0252, 2012 WL 5971207 (Tex. 2012), a patient, who suffered vertebral arterial dissection and stroke as a result of a neck manipulation, brought an action against a chiropractor, alleging that he failed to disclose risks associated with the neck manipulation procedure.  The jury found in favor of the patient and awarded damages against the chiropractor.  …

Read More

Strict Compliance Required for Default Judgment

In Bailey’s Furniture, Inc. v. Graham-Rutledge & Co., No. 05-11-00710-CV, the Fifth District Court of Appeals reaffirmed the long standing rule that strict compliance with Texas Rule of Civil Procedure 106(b) is necessary to establish proper service on a defaulting defendant.    In this case, the plaintiff unsuccessfully attempted to serve Charles Bailey, registered agent for Defendant Bailey’s Furniture on …

Read More

Texas Supreme Court to Determine if Arbitration Clause in Trust is Enforceable

In Rachal v. Reitz, 347 S.W.3d 305 (Tex. App.–Dallas 2011, pet. filed), a beneficiary of a trust (the “Beneficiary”) sued the trustee (the “Trustee”), alleging failure to provide an accounting and breach of fiduciary duties.  The Trustee filed a motion to compel arbitration and to stay litigation, arguing that the Beneficiary must arbitrate his claims against the Trustee pursuant to …

Read More
Page 1 of 812345»...Last »