Opinion Library
Texas court rulings translated into actionable litigation strategy.
This Week's DigestStrategy Category
786 opinions found
Townsen Memorial Hospital, Southeast Texas Medical Ventures LLC d/b/a Townsen Memorial Hospital, and Markus Baloney, RN v. Cedric Wheeler
COA01
In a Texas health-care-liability suit arising from post-operative spinal-surgery complications, the plaintiff served a Chapter 74 expert report from a board-certified neurosurgeon who criticized the hospital’s nursing care (monitoring, documentation, recognition of cauda equina red flags, and escalation/communication). The hospital challenged the physician’s qualifications to opine on nursing standards and argued the report was insufficient on standard of care, breach, and causation; the trial court allowed a cure and then overruled the objections. After a nurse was added as a defendant, he was served with the amended report but did not object within the statutory 21-day window; about 18 months later he sought dismissal by labeling the report “no report” as to him because it did not name him specifically. The First Court of Appeals applied the Chapter 74 “threshold screening” and abuse-of-discretion framework and, within the report’s four corners, held the trial court could reasonably find the neurosurgeon qualified because his training and experience showed familiarity with the same type of postoperative spinal/neurologic monitoring and escalation issues at the heart of the nursing allegations. The court also held the amended report was a good-faith effort that adequately summarized the nursing standard of care, alleged breaches, and a causal pathway sufficient for early-stage Chapter 74 purposes. Finally, the court treated the later-added nurse’s “no report” theory as a timeliness/waiver problem: because he was served and failed to object within 21 days, the late dismissal attack was waived. The denial of dismissal was affirmed.
Litigation Takeaway
"Expert fights are won (or lost) on two points: (1) qualifications turn on whether the expert has concrete experience with the same type of task/analysis at issue—not just whether the expert shares the opponent’s job title; and (2) timing is everything—if you don’t challenge an expert promptly under the governing deadline, courts are likely to find waiver even if you repackage the argument as “this isn’t an expert opinion at all.”"
In re the Commitment of George Dewey Stark
COA05
In this civil-commitment case, George Dewey Stark appealed a judgment declaring him a sexually violent predator, arguing that existing Texas Supreme Court precedent effectively eliminated a required statutory element, thereby violating his due process rights. The Dallas Court of Appeals analyzed the substance of the argument and determined it was a constitutional challenge to the law as applied. The court held that under Texas Rule of Appellate Procedure 33.1, even constitutional and due-process complaints must be raised in the trial court to be preserved for appeal. Because Stark failed to object or raise this theory during the trial proceedings, the court found the issue waived and affirmed the judgment.
Litigation Takeaway
"Constitutional and due-process arguments are not "get out of jail free" cards for a failure to object at trial. To save an issue for appeal—even one involving fundamental rights—you must make a specific and timely objection in the trial court and obtain a ruling."
Blanca Concepcion Gutierrez-Morales v. Adrian Jesus G. Morales
COA08
After a mediated settlement in a Texas partition suit over a family home was reduced to a judgment requiring a $40,000 buyout, the appellant moved for new trial claiming “newly discovered evidence” (alleged incorrect ownership percentages based on adoption-related facts, an alleged attorney conflict from a separate probate matter, and newly learned information about the home’s condition supported by photos). The motion was overruled by operation of law, and the appellant appealed only the denial of the new-trial motion. The Eighth Court of Appeals treated preservation as the threshold issue under Tex. R. App. P. 33.1(b), explaining that an operation-of-law denial preserves complaints only when the issue can be properly presented without taking evidence. Because a newly-discovered-evidence new-trial ground requires competent, admissible proof of the required elements (post-trial discovery, diligence, non-cumulative nature, and materiality/probable effect on the result), the movant must request and obtain a hearing and introduce evidence into the record. Attachments to the motion (e.g., a birth certificate, docket sheet, and photos) were not a substitute for evidence introduced at a hearing. With no hearing and no evidentiary presentation, the complaint was waived, leaving nothing for appellate review; the court affirmed.
Litigation Takeaway
"If your motion for new trial depends on facts outside the trial record (like “newly discovered evidence”), you must timely request and obtain a hearing and put competent, admissible evidence into the record. Letting the motion die by operation of law—especially with only unauthenticated attachments—waives the issue on appeal and can turn a potentially strong argument into a complete preservation loss."
Vijayalakshmi Nadar v. Thinakar Nadar
COA05
In a post-divorce property-division enforcement fight, the ex-wife sought to compel delivery/transfer of property awarded to her in the 2017 decree (safe-deposit contents, stock, and compensation tied to a Mumbai flat), while the ex-husband countered that she had wrongfully remained in possession of the Plano residence awarded to him and sought reimbursement for payments he made on debt tied to a vehicle awarded to her. The trial court managed the matters together (hearing the enforcement the same day as a bill of review) under a previously agreed scheduling order and limited each side to one hour total; it denied all relief requested by the wife, held her delivery-type claims for the safe-deposit contents and stock time-barred, and awarded the husband money judgments for damages related to her continued occupancy of the residence and for vehicle-debt payments. The Dallas Court of Appeals affirmed, holding (1) the wife failed to preserve any due-process/case-management complaint about consolidation or time limits, (2) the trial court did not err in applying limitations to the wife’s delayed enforcement requests for delivery/transfer relief, and (3) sufficient evidence supported the trial court’s discretionary enforcement remedies awarding the husband $195,000 for extended post-decree occupancy of the residence and $9,600 for vehicle-debt reimbursement.
Litigation Takeaway
"Post-divorce “enforcement” is time-sensitive and proof-driven: delay can bar your affirmative requests by limitations and simultaneously expose your client to large offsetting money judgments for ongoing noncompliance (like staying in a house the decree awarded to the other spouse). Preserve procedural objections (time limits/consolidation) with a timely objection, offer of proof, and ruling, and come to a short bench trial with clean, documented damages and payment histories."
In re A.R.M.
COA08
In an original proceeding arising from a divorce and SAPCR, the relator sought mandamus to vacate various trial-court orders and requested an emergency stay. The Eighth Court of Appeals denied relief because the petition and record did not strictly comply with Texas Rule of Appellate Procedure 52: the petition omitted required sections and the Rule 52.3(j) certification, provided no meaningful citations to legal authority, and was supported by an appendix/record that was neither sworn nor certified. The court further held mandamus was improper because the relator asserted a final divorce decree had been signed and a direct appeal was pending, making appeal an adequate remedy for the decree and for interlocutory rulings that merged into the final judgment. Separately, the court struck the appendix and mandamus record for containing unredacted sensitive data about a minor in violation of TRAP 9.9 (authorized by TRAP 9.4(k)) and dismissed the stay motion as moot.
Litigation Takeaway
"Mandamus in Texas family cases is unforgiving: (1) strict TRAP 52 compliance is a threshold requirement—missing sections, lack of authority, or an unsworn/uncertified record can sink the case before the court reaches the merits; (2) if a final divorce/SAPCR judgment exists (or you allege finality), appeal is usually the adequate remedy and interlocutory complaints typically must be raised in that appeal; and (3) TRAP 9.9 redaction is mandatory—filing unredacted child identifiers can get your record struck and destroy your ability to obtain emergency relief."
Jackey Raylorn Martin v. The State of Texas
COA07
In Jackey Raylorn Martin v. State, the defendant challenged the trial court’s pretrial ruling designating a forensic interviewer as the child-victim “outcry” witness under Texas Code of Criminal Procedure article 38.072, arguing the wrong outcry witness was selected. The Amarillo Court of Appeals focused first on error preservation, holding that a pretrial outcry/admissibility ruling is only preliminary and does not preserve appellate complaint; to preserve error, the defendant had to object again when the designated outcry witness actually testified before the jury. Because no contemporaneous objection was made at trial, the issue was waived under Texas preservation rules. In the alternative, the court held that even if the designation were incorrect, any error was harmless under Texas Rule of Appellate Procedure 44.2(b) because the same key substance (penetration and identity) came in through other, unobjected-to evidence, including SANE/medical testimony and corroborating DNA evidence. The conviction was affirmed.
Litigation Takeaway
"Pretrial evidentiary wins don’t preserve anything by themselves: if you want appellate review, renew objections when the testimony/exhibit is offered at trial and get a clear ruling. And even a proven evidentiary mistake may not matter if the same core facts come in through other sources—so (1) object consistently across channels if you need harm, and (2) build redundant, independent proof if you’re the proponent."
Burns Surveying LLC v. Robert H. Burns and Jacob G. Pleasant
COA06
In this professional liability dispute, the plaintiffs sued a registered land surveyor for negligence but failed to attach the mandatory Chapter 150 certificate of merit to their original petition. After the trial court dismissed the claims without prejudice, the plaintiffs attempted to cure the defect by filing an amended petition with the required certificate in the same cause number. The Sixth Court of Appeals analyzed Texas Civil Practice and Remedies Code Section 150.002 and Texas Supreme Court precedent, concluding that the 'first-filed' requirement applies to the very first petition asserting the claim in a specific case. The court held that a dismissal without prejudice requires the claimant to initiate an entirely new lawsuit to satisfy the contemporaneous filing requirement, and an amended petition cannot cure the initial failure to file.
Litigation Takeaway
"When suing a licensed professional like a surveyor, the certificate of merit must be attached to the very first petition filed. If the case is dismissed without prejudice for failing to do so, you cannot fix the error by amending the existing lawsuit; you must file a brand-new suit with a new cause number to satisfy the 'first-filed' rule."
Angel Serna v. The State of Texas
COA07
In an aggravated-assault “family member” prosecution, the defense sought to impeach the complainant with alleged methamphetamine use to support the defendant’s fear/state-of-mind theory. The trial court excluded the drug-use impeachment evidence. On appeal, the defendant reframed the exclusion as violating the constitutional right to confrontation and to present a complete defense, but the court of appeals treated the issue as one of preservation: trial counsel argued only relevance/state of mind at trial and did not clearly invoke confrontation/due-process/complete-defense grounds or obtain a ruling on those constitutional theories as required by Texas Rule of Appellate Procedure 33.1. The court therefore held the constitutional complaint was waived and did not reach the merits. The court also rejected an ineffective-assistance claim at punishment based on failure to call additional mitigation witnesses because the record did not overcome the presumption of reasonable trial strategy and the proposed testimony was largely cumulative, with no showing of a reasonable probability of a different punishment outcome.
Litigation Takeaway
"Preservation is theory-specific: if excluded evidence (like drug use) is critical to impeach credibility or support a “complete defense,” you must expressly state the constitutional grounds and secure a ruling—relevance/state-of-mind arguments won’t preserve confrontation/due-process complaints for appeal. Also, “we should have called more witnesses” claims are difficult to win on appeal without a developed record showing counsel’s reasons were unreasonable and the omitted evidence likely would have changed the result."
Musk v. Brody
COA03
In this defamation case, Benjamin Brody argued that Elon Musk's Texas Citizens Participation Act (TCPA) motion to dismiss was a nullity—and therefore untimely—because it was signed by out-of-state counsel before their pro hac vice admission was finalized. The Third Court of Appeals analyzed Texas's overarching policy of prioritizing the merits of a dispute over technical procedural "traps" and looked to persuasive authority regarding attorney signatures. The court held that if a trial court subsequently grants a pro hac vice motion, that admission cures the signature defect on earlier filings, meaning the TCPA motion was properly before the court and filed within the 60-day statutory window.
Litigation Takeaway
"A pending pro hac vice admission does not render a timely filed motion a "nullity"; provided the admission is eventually granted, the signature defect is cured, protecting parties from losing statutory rights like a TCPA dismissal due to technical filing deadlines."
In re Quintilya Thomas
COA08
In an original proceeding arising from family-law temporary orders, the relator asked the El Paso Court of Appeals for an emergency stay of “default temporary orders” but filed only a Rule 52.10 motion and no petition for writ of mandamus. The court treated the defect as jurisdictional: under Tex. R. App. P. 52.1 an original proceeding is commenced only by filing a mandamus petition, and Rule 52.10 temporary relief is merely ancillary and is available only after a petition invokes the court’s original jurisdiction. Because no petition was on file, the court held it lacked jurisdiction to grant any temporary relief or stay and dismissed the motion for want of jurisdiction, without prejudice to refiling after a mandamus petition is filed.
Litigation Takeaway
"If you need an emergency stay from a court of appeals in a family case, you cannot file a standalone “emergency stay pending mandamus” motion. File the mandamus petition first (or simultaneously) to invoke original jurisdiction; only then can Rule 52.10 temporary relief be considered—otherwise the motion will be dismissed and valuable time will be lost while temporary orders remain enforceable."