Opinion Library

Evidence

In Re Jose Francisco Quintero and JQ Brick Repair & Restoration Services, LLC

COA14

In a mandamus proceeding, the Fourteenth Court of Appeals addressed whether experts who author counteraffidavits under Texas Civil Practice and Remedies Code Section 18.001 are protected from deposition by the consulting expert privilege. The trial court had ordered the depositions of four experts who provided counteraffidavits but were not designated as testifying witnesses. Analyzing Texas Rules of Civil Procedure 192.3(e) and 192.7, the appellate court determined that because the experts were not designated to testify and their work was not reviewed by any testifying experts, they remained privileged consultants. The court held that serving a counteraffidavit does not constitute a waiver of the consulting expert privilege, and thus the trial court abused its discretion by compelling the depositions.

Litigation Takeaway

"Attorneys can effectively challenge the reasonableness of medical or professional expenses by using Section 18.001 counteraffidavits from consulting experts who remain immune from deposition, so long as those experts are never designated to testify and their work product is not shared with testifying experts."

WRENSFORD v. COOK

COA14

In Wrensford v. Cook, the appellant attempted to appeal a trial court's oral denial of a protective order. Although the trial court's docket sheet reflected the denial, no formal written order was ever signed by the judge. The Fourteenth Court of Appeals analyzed Texas Rule of Appellate Procedure 26.1 and established case law, determining that neither an oral pronouncement nor a docket entry constitutes a final, appealable judgment. The court held that it lacked jurisdiction to hear the case because a signed, written order is a mandatory prerequisite for appellate review, leading to the summary dismissal of the appeal.

Litigation Takeaway

"An oral ruling or a docket sheet entry is not enough to start the appellate process; you must ensure a formal written order is drafted and signed by the judge to preserve your right to appeal."

Opinion by Justice Rivas-Molloy

COA01

In a delinquent-tax foreclosure case, Wanda Joyce Smith appeared at a trial setting and testified the judge postponed the matter to conduct a title search and told her a new hearing would be set, so she left expecting further notice. The court later signed a “final” judgment without notifying her of any new setting, leading to foreclosure and sale of the property; Smith learned of the judgment months later during eviction proceedings and filed a bill of review to set aside the judgment for lack of notice/due process. The trial court granted summary judgment against the bill of review and also disposed of Smith’s newly pleaded counterclaims and third-party claims. On appeal, the court applied the traditional bill-of-review elements (meritorious defense; prevented by fraud/accident/wrongful act or official mistake; unmixed with petitioner’s negligence) and the due-process framework of Caldwell v. Barnes for lack of service/notice. The court held Smith’s affidavit testimony that the trial court represented a future hearing would be set, yet later entered judgment without further notice, raised a genuine issue of material fact on “official mistake” and lack of negligence, making summary judgment improper on the bill of review. Separately, relying on the principle that a bill of review is a narrow, independent equitable proceeding limited to vacating or denying the challenged judgment, the court held the trial court lacked subject-matter jurisdiction to adjudicate new counterclaims and third-party claims before the underlying judgment was set aside; those claims were dismissed as premature.

Litigation Takeaway

"A bill of review is a two-step, narrow remedy: first you must prove the prior judgment should be vacated (often by showing lack of notice tied to “official mistake”); only after vacatur can the court reach the underlying merits or any new claims. If the petitioner offers specific testimony that the court/court staff said the case was “reset” or a new setting would be provided, that evidence can defeat summary judgment. If the bill of review pleading tries to bundle in new tort/contract/property claims or add new parties, move to dismiss them—jurisdiction is limited until the judgment is actually set aside."

Property Division Enforcement

In Re Michael Wayne Lowman

COA09

After being found in contempt for failing to sign property listing documents required by a divorce decree, Michael Lowman was sentenced to 180 days in jail. He filed a petition for a writ of habeas corpus to challenge the legality of his confinement. However, by the time the Ninth Court of Appeals reviewed the case, Lowman had fully served his sentence and been released. The court analyzed the case under the mootness doctrine, noting that a writ of habeas corpus is a tool used specifically to challenge an existing restraint on liberty. Because Lowman was no longer confined, the court held that there was no longer a live controversy to resolve and dismissed the petition as moot.

Litigation Takeaway

"Habeas corpus is a race against the clock: if a client is jailed for contempt, you must immediately seek an emergency stay or a personal recognizance bond. If the client serves the full sentence before the appellate court rules, the case becomes moot, and you lose the chance to vacate a potentially void contempt order."

Best Choice Restaurants, LLC v. Edna Lumber Co., Inc.

COA13

While an appeal regarding a district court judgment was pending, the appellant (Best Choice Restaurants) and the appellee reached a settlement agreement. The appellant subsequently filed a voluntary motion to dismiss the appeal under Texas Rule of Appellate Procedure 42.1(a)(1), requesting that each party bear its own costs as agreed. The Thirteenth Court of Appeals analyzed the request under TRAP 42.1, finding that the settlement rendered the appeal unnecessary and that dismissal would not prejudice the rights of any other party. The court granted the motion, dismissed the appeal, and explicitly ordered that no motions for rehearing would be entertained to ensure the immediate and absolute finality of the settlement.

Litigation Takeaway

"To ensure a "clean break" and prevent "buyer's remorse" after reaching a settlement during an appeal, practitioners should file a voluntary motion to dismiss under TRAP 42.1(a)(1) and specifically request that the court preclude any motions for rehearing. This strategy secures immediate finality and protects the settlement from last-minute attempts to revive litigation."

Property Division

Opinion by Justice Rivas-Molloy

COA01

A former law-firm associate sued his prior employer for post-termination wages, arguing that because he remained “attorney of record” in a pending federal case until the court signed an order allowing withdrawal, the employment relationship (and his right to salary) necessarily continued through the withdrawal date. The Houston First Court of Appeals analyzed the claim under Texas contract principles and at-will employment, distinguishing ethical/professional duties owed to a tribunal during the withdrawal process from the private contractual terms governing compensation. The court held that an attorney’s continued “of record” status does not, as a matter of law, extend an employment contract or create an entitlement to wages after the firm has clearly terminated the employment relationship; it also rejected challenges to the trial court’s evidentiary/discovery rulings and refusal to judicially notice California law as not showing reversible error. The take-nothing judgment for the firm was affirmed.

Litigation Takeaway

"Being “attorney of record” after termination creates ethical obligations, not a paycheck: firms can defeat “withdrawal gap” wage claims by documenting a clear, unequivocal termination date (access shutoff, keys/credentials returned) and promptly moving to withdraw, while employment agreements should expressly state compensation ends upon termination regardless of withdrawal timing."

SANTIAGOS v. SANTIAGOS-SALGUERO

COA13

Erika Santiagos and Osbaldo A. Saenz Jr. attempted to appeal a trial court's order transferring their case between two district courts in Hidalgo County. The Thirteenth Court of Appeals analyzed the order under the 'one final judgment' rule, which requires an order to dispose of all pending claims and parties before it can be appealed. Because the transfer was a procedural move that did not resolve the merits of the underlying case, and because no specific statute authorizes an interlocutory appeal for such an order, the court held it lacked jurisdiction. Consequently, the appeal was dismissed.

Litigation Takeaway

"A trial court order transferring your case to another district is not a final judgment and cannot be challenged through a standard appeal. If you believe a transfer order is an abuse of discretion or violates mandatory venue rules in a family law matter, you must seek immediate relief through a petition for writ of mandamus rather than waiting to file an ordinary appeal."

CLAUDIA LUCIUS WILLIAMS SMITH, Appellant v. KENNETH W. ALLEN, Appellee

COA01

In Williams Smith v. Allen, the appellant sought review of a Harris County civil court judgment but failed to file an appellant’s brief by the due date and did not request an extension. After the deadline passed, the First Court of Appeals issued a formal 10-day delinquency notice warning that the appeal would be dismissed unless the brief or a motion for extension was filed within ten days. The appellant did nothing. Applying Texas Rules of Appellate Procedure 42.3 (dismissal for want of prosecution/failure to comply with rules, court order, or clerk’s notice) and 43.2(f) (authority to dismiss as the judgment), the court treated the nonresponse as abandonment of the appeal and dismissed the case for want of prosecution, rendering any pending motions moot and leaving the trial court’s judgment intact.

Litigation Takeaway

"Appellate deadlines are unforgiving: missing the brief deadline and ignoring a 10-day delinquency notice is effectively an “appellate death penalty.” If you are even close to late, immediately file the brief or at least a motion for extension—silence will be deemed abandonment and your client loses appellate review by default."

Termination of Parental Rights

Valerie Lauren Mata v. The State of Texas

COA01

In Mata v. State, the defendant pleaded guilty to improper relationship with a student and received a five-year sentence, then attempted to appeal despite having signed a waiver of appeal. The First Court of Appeals analyzed whether it had jurisdiction in light of that waiver where sentencing was left to the trial court (i.e., not a fixed-sentence plea bargain). Applying Ex parte Broadway and Carson, the court treated the waiver as a bargained-for exchange and held it is enforceable when supported by consideration—here, the State’s waiver of its right to a jury trial—even without an agreed sentence. Because the trial court’s certification correctly reflected that Mata had no right of appeal, the appellate court was required to dismiss the appeal for lack of jurisdiction.

Litigation Takeaway

"A properly documented criminal appellate waiver can make a conviction effectively “final” immediately, eliminating appellate-delay arguments in related family cases. In termination or custody litigation involving criminal conduct, obtain the clerk’s record and certification to confirm (1) a signed waiver, and (2) consideration (e.g., the State waived a jury). Then use the dismissal/waiver to oppose stays and to support termination grounds or evidentiary finality arguments."

Golden Eagles USA INC., Appellant v. Steam Logistics, LLC, Appellee

COA01

In Golden Eagles USA Inc. v. Steam Logistics, LLC, the appellant failed to file its opening brief by the deadline and also failed to file a motion for extension. After the deadline passed, the First Court of Appeals issued a delinquency notice warning that the appeal would be dismissed unless the appellant filed a brief or an extension request within ten days. The appellant still did nothing. Applying Texas Rules of Appellate Procedure 42.3(b) and (c) (involuntary dismissal for want of prosecution and failure to comply with appellate rules/court notice) and entering judgment under TRAP 43.2(f), the court held the appellant abandoned the appeal and dismissed it for want of prosecution without reaching the merits; any pending motions were dismissed as moot.

Litigation Takeaway

"Appellate rights can be lost by silence: missing the briefing deadline—and then ignoring the clerk’s TRAP 42.3 notice—can end the appeal permanently, leaving the trial court’s custody/property/support rulings intact and immediately enforceable. Calendar briefing and extension deadlines with redundancy; if you’re the appellee, monitor the docket and let the rules work when the appellant fails to prosecute."