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Legal Update Newsletter
(May 17, 2001) This Newsletter is published, approximately every other month, by Verner & Brumley, P.C., Dallas, Texas. It is published by email. The current issue is displayed at http://www.vernerbrumley.com/ In three pages, the Newsletter updates the law in three areas: Texas procedural and remedial law, Texas family law (our firm's specialty), and family law of national import, including tax law. We abstract only published cases. All cases reported may be found on commercial web directories. We have included hypertext links to free sources in our web site version of the Newsletter (when free sites are available - and when we can find them!). There is no charge for Legal Update Newsletter. If you do not receive Legal Update Newsletter but wish to subscribe, send us an email request. If you do not wish to receive Legal Update Newsletter, please let us know, and we will remove your name from our subscription list. NEWSFLASHES: Better behave: You can be 'cuffed and taken to jail for not wearing a seat belt, at least in Texas, Atwater v. Lago Vista, No. 99-1408 (U.S. Apr. 24, 2001), but our legislature is working on the problem. See S.B. 112 & H.B. 363. ERISA & Texas law: United States Supreme Court holds that ERISA plan provisions prevailed when man received life insurance policy and pension plan in divorce, died shortly post- divorce, but never changed beneficiary designation of ex-wife with plan's administrator. Washington State law that plan beneficiaries are automatically revoked upon divorce preempted by federal law. Egelhoff v. Egelhoff, No. 99-1529 (U.S. Mar. 21, 2001). Compare Weaver v. Keen, No. 10-99-305-CV (Tex. App. - Waco Apr. 18, 2001, n.p.h.) (order denying pet. reh.) (Vance, J.) (rev'g & rem'g to County Court at Law No. 4, Dallas County) (agrees with Egelhoff but reaches contrary result). From the =01+Net: Did you hear about the terrorists who held the entire ABA convention hostage? They threatened to release one lawyer per hour unless their demands were met. CONTENTS: Page One: Texas Procedure & Remedies How final is final? Unpleasant business Discrimination causation Admissions undeemed Scope of remand Page Two: Texas Family Law Frequent flyer miles Property law in a nutshell Intentional infliction claim upheld Child abuse reporting statute upheld Timely appeal hearings required Page Three: National & Federal Family Law MD maintenance Boarding school counts Post-HS child support constitutional No horsewhipping allowed No prenuptial waiver Page One: Texas Procedure and Remedies How final is final? A judgment is final if it says "with unmistakable clarity" that it is final, or if the judgment actually disposes of all claims and parties before the court. A "Mother Hubbard" clause "does not indicate finality." Guajardo v. Conwell, 44 Tex. S. Ct. J. 693 (Apr. 26, 2001) (per curiam) (concurring in result only) (aff'g 30 S.W.3d 15 (Tex. App. - Houston [14th Dist.] 2000) (per curiam) (granting motion to dismiss appeal)). Unpleasant business: Mall manager told police lessee owned mall store and threatened to file criminal trespass charges against claimed purchaser, but did not act in extreme and outrageous manner even though he did not give additional facts. Broad dictum: "Business managers must have latitude to exercise their rights in a permissible way in order to properly manage their business, even though it may not always be pleasant for those involved." Bradford v. Vento, 44 Tex. S. Ct. J. 655 (Apr. 26, 2001) (Abbott, J.) (aff'g, rev'g & ren'g 997 S.W.2d 713 (Tex. App. - Corpus Christi 1999) (en banc) (Yanez, J.) (Seerden, C.J., dissenting)) (aff'g, rev'g & ren'g 357th Judicial District Court, Cameron County). Discrimination causation: Texas Supreme Court adopts Texas Labor Code's causation standard of "a motivating factor" in state- law based employment discrimination suit. Court would have followed Title VII standards but couldn't tell what they are because federal courts "are closely divided on the issue." See Texas Commission on Human Rights Act, Tex. Labor Code o 21.001 et seq.; cf. id. o 21.051 ("because of" standard), with id. o 21.125 ("a motivating factor" standard). Quantum Chem. Corp. v. Toennies, 44 Tex. S. Ct. J. 519 (Mar. 8, 2001) (Phillips, C.J.) (Hecht, J., dissenting) (aff'g 998 S.W.2d 374 (Tex. App. - Houston [1st Dist.] 1999) (Andell, J.) (rev'g & rem'g to 190th Judicial District Court, Harris County)). Admissions undeemed: Mandamus conditionally issued to trial court to vacate order, after hearing within 30 days of trial, denying motion to undeem ultimate-issue admissions when record showed that party failed to respond because of law firm's accident or mistake. No adequate remedy by appeal because relator's ability to present viable claim or defense at trial vitiated or severely compromised and no final, appealable judgment rendered simultaneously. In Re: Kellogg-Brown & Root, Inc., No. 12-01-00116-CV (Tex. App. - Tyler May 8, 2001, orig. proceeding) (Worthen, J.) (writ cond. granted). Scope of remand: When a party contests liability in the trial court but only damages on appeal, a reversal requires that both damages and liability be retried because of Tex. R. App. P. 44.1(b), which says a court may not order a separate trial solely on unliquidated damages if liability is contested, as by general denial. Estrada v. Dillon, 44 Tex. S. Ct. J. 613 (Apr. 12, 2001) (per curiam) (aff'g, rev'g & rem'g 23 S.W.3d 422 (Tex. App. - Amarillo 2000) (Reavis, J.)) (rev'g & rem'g to 137th Judicial District Court, Lubbock County, Shaver, J.). Page Two: Texas Family Law Frequent flyer miles: Trial court properly clarified divorce decree, which awarded 200,000 Lufthansa frequent flyer miles to ex-wife, to require ex-husband to "execute all documents and take all necessary steps to permit" ex-wife to redeem miles by date certain. In re: Alford, No. 06-00-00103-CV (Tex. App. - Texarkana Mar. 7, 2001) (Ross, J.) (aff'g County Court at Law, Polk County). Property law in a nutshell: The Waco Court of Appeals has written a couple of opinions that, between them, explain just about everything you need to know about Texas marital property law. Beard v. Beard, No. 10-98-357-CV (Tex. App. - Waco Apr. 18, 2001) (everything except new reimbursement statute) (Vance, J.); Gill v. Gill, No. 10-00-163-CV (Tex. App. - Waco Mar. 7, 2001) (new reimbursement statute) (Davis, C.J.). Intentional infliction claim upheld: Trial court's jnov on jury verdict of $325,000 to wife for intentional infliction of emotional distress reversed. Also reversed was sanctions award of $120,000 against wife "for her misconduct during the pendency of this cause." Toles v. Toles, No. 05-97-00303-CV (Tex. App. - Dallas Apr. 11, 2001) (Rosenberg, J., assigned) (rev'g, ren'g & rem'g to 254th Judicial District Court, Dallas County). Child abuse reporting statute upheld: Houston Court of Appeals, in split decision, upheld constitutionality of child abuse reporting statute, Tex. Fam. Code o 261.101 et seq., against indefiniteness argument. Rodriguez v. State, No. 14-99-00479-CR (Tex. App. - Houston [14th Dist.] Apr. 19, 2001) (Yates, J.) (Baird, J., assigned, dissenting) (aff'g County Criminal Court at Law No. 14, Harris County, Fields, J.). Timely appeal hearings required: Trial court abused its discretion by trying case without first hearing appeal of associate judge's ruling limiting discovery concerning valuation of spouse's interest in law firm. Fountain v. Knebel, No. 05-99-01718-CV (Tex. App. - Dallas Apr. 11, 2001) (Richter, J.) (rev'g & rem'g to 256th Judicial District Court, Dallas County). Page Three: National and Federal Family Law MD maintenance: In another of what it describes as "university degree-divorce decree" cases, Wisconsin Supreme Court upholds maintenance award of $1,700 per month for eight years after four-year marriage because wife worked, did laundry, kept house and even typed papers for husband while he finished medical school and completed residency. Meyer v. Meyer, 232 Wis. 2d 191, 606 N.W.2d 184 (2000). Boarding school counts: In calculating child support, which is based on "primary physical responsibility," a/k/a "parenting time," trial court did not abuse its discretion in imputing child's time at boarding school to father when father was primary custodial parent and his family trust paid for school. Katzberg v. White, No. C031628 (Cal. App. May 1, 2001). Post-HS child support constitutional: As against equal protection challenge, Oregon Court of Appeals upholds constitutionality of child support statute requiring child support for "child attending school," which can include college attendance, despite absence of legal requirement that married parents send their children to college. In re: McGinley, No. A101792 (Or. App. Feb. 28, 2001). No horsewhipping allowed: Lawyer, who had affair with client, added "insult to injury" by billing client for legal services after breaking off relationship, but actions did not constitute intentional infliction of emotional distress because not "extreme and outrageous" as matter of law. Sanctions of $20,000 upheld against lawyer for, among other things, asking trial court to horsewhip former client and her lawyer. Gaspard v. Beadle, 36 S.W.3d 229 (Tex. App. - Houston [1st Dist.] 2001, pet. denied). No prenuptial waiver: Accepting court-ordered payment of $5,000 from husband during pendency of divorce "as an advancement on her award of equitable distribution" did not constitute waiver by wife of right to enforce prenuptial agreement in lieu of equitable distribution. Rubino v. Rubino, No. 99-443 (RI Feb. 12, 2001). Verner & Brumley, P.C. 3131 TurtleCreek Blvd. Suite 1020 Dallas, Texas 75219 214.526.5234 214.526.0957.fax info@vernerbrumley.com www.vernerbrumley.com Practice limited to Family Law Copyright Verner & Brumley, P.C., 2001
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