Second Court of Appeals

Summaries of Civil Opinions and Published Criminal Opinions Issued - Week of June 26, 2017.

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.

Carter v. Harvey, No. 02-16-00153-CV (June 29, 2017) (Livingston, C.J., joined by Sudderth, J.; Gabriel, J., concurs and dissents with opinion).

Held:  In suit concerning the partition of real property, Carter, who derivatively stood in the shoes of a long-since dissolved corporation, could not bring an equitable adjustment claim based on the value of improvements that the corporation contributed to the property.  Next, the trial court did not err by granting a partition by sale of the property because the evidence showed that while an in-kind partition was theoretically possible, the trial court could have reasonably concluded that such a partition was not feasible, fair, practical, or equitable.  Finally, the trial court’s judgment is not void for failure to join a necessary party because the necessary parties in partition suits are those who own possessory interests in the real property.

Concurrence and Dissent:  Although the trial court’s order that the property co-owned by Carter and Harvey could not be partitioned in kind was not void, no evidence supported the trial court’s conclusion that a partition in kind would be unfair and inequitable.  The infeasibility of Carter’s proposed partition is not dispositive of the fact-finder’s partition determination and no witness testified that the property could not be divided based on Carter’s and Harvey’s respective ownership interests.  The evidence before the trial court compelled a finding that the property was susceptible to in-kind partition, leaving the parameters of the specific partition to the appointed commissioners.

State v. L.P., No. 02-16-00290-CV (June 29, 2017) (Sudderth, J., joined by Meier and Pittman, JJ.).

Held:  Because former government code section 411.081 contains no specific statutory grant of jurisdiction, this court must look to the general constitutional grant in article V, section 6(a) and civil practice and remedies code section 51.012 to determine whether it has jurisdiction over an appeal from the trial court’s order granting of a petition for nondisclosure.  The appeal is dismissed because the record does not reflect the amount in controversy required to invoke this court’s jurisdiction.

Villarreal v. Fowler, No. 02-16-00474-CV (June 29, 2017) (Meier, J., joined by Sudderth and Pittman, JJ.).

Held:  The trial court abused its discretion by denying Villarreal’s motion to dismiss Fowler’s health care liability claim because instead of opining that Fowler’s claim has merit, Michaels merely opined in her “Clinical Review” that Villarreal violated several ethical rules and should consult with an attorney, thus failing the MLA’s minimal expert-report standard.