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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Friday, January 27, 2012

Preserving Error as to Jury Questions in Texas Trials

A web post about juror questions in Texas trials is here. It'll give you some clues if you ever have to appeal a juror's asking a question in a Texas criminal trial or unfairly asking a question in a Texas civil trial.

Monday, January 23, 2012

What You Have to Plead to Get Child Custody Jurisdiction

The case is styled In re S.E.B.S. It's a memorandum opinion written by Justice David Gaultney for a panel that also includes Chief Justice Steve McKeithen and Justice Charles Kreger.

When the spouses separated in July 2009, Mamma left Texas and she and the child went to Louisiana. In June 2010, Daddy filed for divorce. He got Mamma served with citation and ended up getting a default judgment. In May 2011, Mamma filed a limited appeal in the Ninth Supreme Judicial District in Beaumont contesting the child custody orders.

"Although a court acquiring jurisdiction over the nonresident respondent in a suit for divorce under [Texas Family Code] sec. 6.305 [West 2006] also acquires jurisdiction over the respondent in a suit affecting the parent-child relationship, section 152.201(a) of the Family Code is the exclusive jurisdictional basis for making a child custody determination by a court of this state."

A Texas court has jurisdiction to make an initial custody determination only if:
  • this is the home state of the child on the date of the commencement of the proceeding;
  • Texas was the home state of the child within six months before the commencement of the proceeding and the child is absent from this state but a parent or person acting as a parent continues to live in this state;
  • a court of another state does not have “home state” jurisdiction;
  • the court having home state jurisdiction has “declined to exercise jurisdiction on the ground that [Texas] is the more appropriate forum” and the child and his parents, or the child and at least one parent or a person acting as a parent, have a significant connection with the state;
  • all courts otherwise having jurisdiction have declined jurisdiction on the ground that Texas is the more appropriate forum; or
  • no court of another state would have jurisdiction under the above-stated provisions.
A child’s “home state” is “the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding.”

Generally, when a party to a suit affecting the parent-child relationship is a nonresident, “each party, in its first pleading or in an attached affidavit, shall give information, if reasonably ascertainable, as to the child’s present address or whereabouts, the places where the child has lived during the last five years, and the names and present addresses of the persons with whom the child has lived during that period.”

The pleading or affidavit must state whether the party has participated in any capacity in any other proceeding concerning the custody of or visitation with the child, “and, if so, identify the court, the case number, and the date of the child custody determination, if any[.]” The pleading or affidavit must also state whether the party knows of any proceeding that could affect the current proceeding, and must provide certain identifying information about that proceeding. The party must also provide, if known, the names and addresses of any person not a party to the proceeding who has physical custody of the child or claims rights of custody or visitation with the child. If this information is not provided to the court, the trial court may stay the proceeding, upon its own motion or a party’s motion, until the information is provided .

The information was not provided. The proceeding was not stayed. The appeals court reversed the custody orders and remanded them to the Conroe trial court.

Sunday, January 8, 2012

Can't Hold a Company Liable for the Acts of Its Employees If You Don't Prove They Are Its Employees

There's more information about trials and appeals available on the internet than was ever available in pre-web days. Still, observers wonder about the stories behind appeals. Case in point: Service Corporation International v. Guerra, 348 S.W.3d 221 (Tex. 2011). Now the main point in this case is that the employees of a cemetery company misbehaved, and the cemetery company was owned, in turn, indirectly, by a holding company. The plaintiffs sued the cemetery company and the holding company. Texas Supremes held that there was no evidence-- or at least not more than a scintilla of evidence-- that any of the natural person bad actors were employees of the holding company, and disallowed recovery against the holding company.
And this is what I wonder-- why didn't the trial lawyers prove that the natural person tortfeasors were employed by the holding company? Did they neglect to? Was it that they couldn't accomplish it?
Why wasn't the cemetery company a sufficient defendant alone? What was the insurance coverage status of  the cemetery company? The holding company?  The Texas Supreme Court's opinions seems strong that the holding company's employer status wasn't proved.
Hat tip to Warren W. Harris and Yvonne Y. Ho of the Texas Bar Journal for a head's up about this case.

Tuesday, January 3, 2012

New Mechanism for Permissive Interlocutory Appeals in Texas State Courts

The Texas legislature has given parties in the state's trial courts the same access to permissive interlocutory review of rulings that they have in federal district courts. Here's the old statute. Back then, the parties had to agree in order for interlocutory review to be permitted. Reaching such agreement was very rare. State practice is now similar to federal practice. Hat tip to Warren Harris and Yvonne Ho in the Texas Bar Journal.