Second Court of Appeals

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of September 1, 2015.

NOTE:  Summaries are prepared by the court's staff attorneys and law clerks for public information only and reflect his or her interpretation alone of the facts and legal issues.  The summaries are not part of the court's opinion in the case and should not be cited to, quoted, or relied upon as the opinion of the court.

Links to full text of opinions (PDF version) can be accessed by clicking the cause number.

Am. Homeowner Preservation Fund, LP v. Pirkle, No. 02-14-00293-CV (Sept. 3, 2015) (Sudderth, J.; Dauphinot and Gabriel, JJ., concur without opinion).

Held:  Regardless of whether Appellant's predecessor in interest was named and served with citation in the tax suit regarding its lien on the property, Appellant was provided ample notice and opportunity to challenge the validity of Pirkle's deed obtained in a tax foreclosure sale under the legislature's statutory framework for such challenges. Under the circumstances presented by this case,  Appellant has no standing to assert the violation of its predecessor in interest's due process rights, and Appellant's purported lien was not enforceable against Pirkle.  Likewise, because Appellant did not bring its taking claim against the governmental-entity appellees within 180 days of the date it knew or should have known about the tax sale and constable's deed, the claim is barred by limitations.

In re OOIDA Risk Retention Grp., Inc., No. 02-15-00238-CV (Sept. 4, 2015) (orig. proceeding) (Gardner, J., joined by Livingston, C.J., and Meier, J.).

Held: Relators did not waive the appraisal clause in their insurance policy by waiting five months after the real party in interest had filed suit before invoking it.  The parties engaged in negotiations after the suit was filed, before Relators invoked the appraisal cause, and after Relators invoked the appraisal clause.  Additionally, after Relators had invoked the appraisal clause, the real party in interest complied with it for a year before asserting it had been waived. Because there was no waiver, the trial court abused its discretion by denying Relators' motion to appoint an umpire pursuant to the appraisal clause.

Relators were not entitled to mandamus relief on the order denying their motion for summary judgment.  Mandamus is generally unavailable when a trial court denies summary judgment, no matter how meritorious the motion, and Relators had not shown extraordinary circumstances.