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 …
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 …
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 …
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. …
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 several …
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 …
A Primer on Expedited Actions Under Texas Rule of Civil Procedure 169
In 2011, the Texas Legislature passed House Bill 274, which called upon the Supreme Court of Texas to promulgate procedural rules and amendments for expedited civil actions. The Supreme Court formed a task force to answer the legislature’s call, and the task force proposed several modifications to the Texas Rules of Civil Procedure. On November 13, 2012, the Supreme Court …
Top Ten Reasons to Plan Your Estate Now – Number Two
2. Guardianship of Minor Children If you have a minor child, who would care for him or her in the event that you died or became incapacitated? Would it be someone you deem to be in the best interest of your child, or would it be someone whom a court deems to be in the best interest of your child? …
Top Ten Reasons to Plan Your Estate Now – Number One
1. Incompetency You may not be incompetent now, but do you know what would happen to you and your property if the unthinkable were to happen? When a person becomes incompetent (by way of mental illness, mental deficiency, physical illness, etc.) a court will appoint a guardian for that person. If a person is totally incapable of …
Foreclosing on Residential Property under the Protecting Tenants at Foreclosure Act of 2009
In response to the housing collapse in 2009, the United States Congress enacted the Protecting Tenants at Foreclosure Act of 2009 (the “Act”) to protect tenants who live in residential properties that are being foreclosed from abruptly losing their homes. Lenders foreclosing on residential properties must comply with the obligations presented by the Act before filing a forcible detainer …