/INTERESTING CASES:  April 3, 2019


Sallee S. Smyth

  1. Tanner v. Black, 2019 Tex. App. LEXIS 1756 (Tex. App. – Houston [1st Dist.] March 7, 2019) (mem. op.) (Cause No. 01-17-00883-CV)

After his divorce, F sued Amicus for various causes of action stemming from her appointment in his divorce and custody proceeding.  Initially, F brought his suit individually and as next friend of his daughter.  Amicus filed a motion to show authority and the trial court struck all of F’s pleadings and ordered H to pay attorney fees and costs to the Amicus as sanctions.  F appealed.  The COA determined that the trial court erred in dismissing F’s individual claims and ordering sanctions, reversing and remanding those issues for further proceedings.  F’s individual claims included breach of fiduciary duty, negligence, intentional infliction of emotional distress, fraud and DTPA.  Amicus filed counterclaims seeking sanctions and alleging that F’s suit was groundless and brought for harassment.  Upon remand, Amicus filed both a no evidence and traditional MSJ, largely relying upon her immunity as defeating F’s claims against her.  Amicus alleged in her no evidence motion that no evidence existed on one or more elements of each of F’s claims or the exceptions to her immunity defense.  In her traditional motion, Amicus asserted that the statutory immunity defense applied as a matter of law.  The trial court granted both motions.  F appealed.  The order did not address Amcus’ counter claim and included “finality” language so the COA treated the order as final for purposes of appeal.  As to F’s claims of negligence, the COA determined that Amicus owed no duty to F, negating an element of the claim and justifying summary judgment.  As to intentional infliction of emotional distress, the COA points out that conduct must be extreme.  The COA analyzed F’s claims regarding the Amicus conduct and found that as a matter of law the allegations did not rise to the high threshold required, making SJ proper.  As to F’s fraud claim, Amicus’ no evidence motion stated the elements of fraud and then stated that there was no evidence on any of these elements.  F argued that under TRCP 166a(i), Amicus was required to specifically identify which elements lacked evidence.  The COA found that because the motion stated there was no evidence on any of the elements, that it technically satisfied the rule and the burden shifted to F to bring forth evidence on each element, which he did not do, making SJ proper.  As to immunity, the COA found that all of F’s claim derived solely from Amicus’ appointment in the divorce case, establishing the defense as a matter of law and requiring F to establish facts under the exceptions.  F’s conclusory allegations did not create such facts, making SJ proper.  Final order affirmed

  1. Chakrabarty v. Ganguly, 2019 Tex. App. LEXIS 1795 (Tex. App. – Dallas March 7, 2019) (En Banc. op.) (Cause No. 05-17-01195-CV)

The parties were divorced in 2012.  In 2016 W filed a motion to enforce various terms of the decree and she filed a breach of contract suit regarding alimony payments.  After a bench trial the court granted enforcement ordering (1) payments to satisfy obligations under the decree for H to transfer funds (2) enforcement of contractual alimony terms (3) H to provide health insurance for the parties children and reimburse for uninsured expenses (4) H to add W’s name to custodial accounts for the children and (5) H to pay $10,000 to W’s counsel.  H appealed.  On appeal H argued that W’s suit to enforce terms for the transfer of bank account funds was barred by the 2 year SOL in TFC 9.003(a).  W argued that the funds to be transferred should not be considered “tangible personal property” based on other appellate decisions and a Supreme Court holding, thereby denying that the 2 year SOL applied.  During oral argument, it was noted that a prior panel of the Dallas COA held in another case that such property was considered “tangible personal property” and therefore, the current panel could not ignore precedent absent en banc consideration or an intervening Supreme Court decision.  As such, the panel rendered judgment denying W recovery of the funds based on SOL grounds and affirmed the balance of the trial court’s decision.  W filed for en banc reconsideration which the Dallas court granted in an effort to create uniformity in the law and recognizing that their prior 2006 panel decision was inconsistent with other COA’s and the Supreme Court.  On rehearing en banc the COA determines that money and stock as held in financial institutions are not considered “tangible personal property” for purposes of TFC 9.003, overruling the specific holding in Long v. Long, 196 S.W.3d 460 (Tex. App. – Dallas 2006, no pet.) to the contrary.  Balance of judgment affirmed.

  1. In re Caldwell-Bays, 2019 Tex. App. LEXIS 2367 (Tex. App. – San Antonio March 29, 2019, orig. proceeding) (mem. op.) (Cause No. 04-18-00980-CV)

In August and September of 2014 W acquired an interest in two pieces of real estate, one in Kerrville and one in Comfort.  In May 2016, W filed a suit for divorce, based on an alleged common-law marriage with H which she claimed commenced in December 2014.  Her suit included a SAPCR.  H denied the existence of the marriage, but counter filed with his own SAPCR claims.  Thereafter he filed a summary judgment motion regarding the common law marriage claim.  In 2017 the court signed two “standing” orders (on regarding matters of property and one regarding SAPCR issues).  Both the property order and the SAPCR order included terms which enjoined the parties from encumbering property and the property order authorizing indebtedness for specified living expenses.  In February 2018, W executed a Deed of Trust regarding the Kerrville property in favor of her attorneys for the payment of fees.  W then asked for leave to sell the property.  H opposed the motion and W’s attorneys decided to release the Deed as a precautionary matter.  The court ultimately granted the motion to sell, ordering W to list the property and to notify H of any offers and showings and to deposit any proceeds into the registry of the court.  Thereafter, W entered into an agreement with her counsel that both the Kerrville and Comfort properties would serve as security for the payment of her fees.  Several months later the trial court granted H’s MSJ finding no common law marriage.  W then executed a Deed of Trust regarding the Comfort property in favor of her counsel to secure the fees owing to them.  H filed a motion for enforcement alleging 4 violations: two that W had violated the standing orders by encumbering both the Kerrville and Comfort properties when executing DOT’s relating to them and also by failing to list the Kerrville property for sale and by failing to notify him of showings.  The court held a hearing in December, found W guilty of all 4 violations, sentenced her to jail for 3 days for each violation to run concurrently and further sentenced her to remain until she complied with orders obligating her to secure a release of the known lien and all other liens on both properties.  W filed a petition for habeas corpus and the COA conditionally released her a few days before Christmas while the matters was considered.  Among numerous issues, W argued that the standing orders within a divorce suit no longer applied after SJ finding no marriage and that the standing orders themselves were void because they were issued contrary to TFC 6.502 which requires notice and a hearing.  The COA noted that the “standing orders” included terms stating that they remained in effect until a “final order” was signed.  Because the SJ denying a common law marriage was interlocutory only, the standing orders remained in place while the balance of the issues in the suit were determined.  Further, the SAPCR order included an injunction against “encumbering” property upon which the common law issue had no effect, thus the standing orders remained effective and enforceable. As to the issue of the standing orders themselves, W claimed that they were void because they were not issued by the court after notice and an adversarial hearing as required by TFC 6.502.  W claimed the court had no authority to first “unilaterally” issue such orders and only then give notice to the parties of their right to contest.  The COA refers to terms within the standing orders which require a petitioner in a divorce suit to attach a copy to its petition and state that the orders will become effective as a TRO upon filing, effective for 14 days, and further that if a party does not contest the order in an evidentiary hearing within those 14 days, that they will convert to a temporary injunction, effective until further order of the court or a final order is signed.  In this case, the COA ultimately determined that the standing orders were not voice because W had attached the orders to her petition, relied upon those orders in her motion for leave to sell property and neither party contested the standing orders within the 14 days after the petition was filed, evidencing that both parties had notice of the standing orders before they became enforceable injunctions.  The COA addressed and determined several other issues against W but found the coercive contempt terms invalid, denied habeas corpus relief and remanded W back to custody.   COMMENT:  I point out this case for those of you who practice in counties which implement the use of “standing orders” in family code filings.  This case emphasizes the importance of reviewing those orders, understanding their effect, adhering to their deadlines or procedural requirements.  In many counties, the 14 day evidentiary hearing deadline in these standing orders might be difficult to achieve, but the effects could be guarded against with a motion to extend those deadlines or a motion to set aside or modify the standing order terms and the facts of each case dictated.  This case clearly directs that “standing orders” cannot and should not be ignored and that they are equally enforceable as temporary orders issues pursuant to the Family Code after a full evidentiary hearing.


2019-04-03T11:52:04-05:00 April 3rd, 2019|SideFeatured-Home|