Default Judgment. Ps Presented Insufficient Evidence Of Damages.
Restricted appeal from a no-answer default judgment. The Court of Appeals
reversed & remanded on the issue of unliquidated damages, finding that
there is no evidence of at least 1 possible damage element as to each of
the 3 lump-sum awards in this auto accident case. Further, because the
trial court did not specify the damage elements it was awarding in it
judgment, & the record does not provide any means for distinguishing the
amounts awarded for each element of damage, the Court could not determine
whether the trial court awarded damages based on the elements as to which
there is no evidence.
The full-text court opinion is available at:
http://www.texasbarcle.com/CLE/CDGetOpinion.asp?lOpinionID=8554
June 21st, 2008
Prompt Payment Of Insurer Under UM/UIM Provision Precluded Award Of Attorney’s Fees Against It.
The Court of Appeals reversed an award of attorney’s fees to the insureds
in this UM/UIM case, holding that payment of benefits within 2 days of the
judgment against the 3rd party precluded the award of attorney’s fees
under Ins. Code art. 21.55 §§4 & or Civ. Prac. & Rem. Code §38.002(3).
The full-text court opinion is available at:
http://www.texasbarcle.com/CLE/CDGetOpinion.asp?lOpinionID=8552
June 14th, 2008
Judgment Approving Settlement Was Final.
H & W were killed in a motorcycle accident; W was survived by her 9 year
old son, X, & her parents, Y & Z. At the time of her death, W was covered
by an auto insurance policy issued by Metropolitan with UM/UIM benefits.
Four months after the parties entered into a settlement agreement that was
approved by the court, Metropolitan discovered that W’s policy provided ½
the UM/UIM benefits previously thought, refused to pay the settlement
amounts, & argued unsuccessfully on appeal of the enforcement order that
the judgment rendered after the settlement was not final & thus, it was
entitled to withdraw its consent to settle. Held: Affirmed.
The full-text court opinion is available at:
http://www.texasbarcle.com/CLE/CDGetOpinion.asp?lOpinionID=8553
June 7th, 2008
Voir dire question improperly disallowed. Question concerning willingness to believe felon was proper commitment question.
During jury voir dire at D’s trial on charges of evading arrest, D’s
attorney asked the venire generally: “Is there anybody here who feels
that . if you hear from the witness stand that a witness has a prior
felony conviction, that you will automatically disbelieve that witness?”
The prosecutor objected to the question and the trial court sustained the
objection. Held: Affirmed. The trial court has broad discretion over the
process of selecting the jury but the trial court abuses its discretion
when it prohibits a proper question concerning a proper area of inquiry.
In Standefer, 59 SW3d 177, the Court of Criminal Appeals held that a trial
court should first determine if a question is a commitment question, which
is a question that commits a prospective juror to resolve, or refrain from
resolving, an issue a certain way after learning a particular fact. Not
all commitment questions are improper. For a question to be a proper
commitment question, one of the possible answers to the question must give
rise to a valid challenge for cause. However, even if a question meets the
“challenge for cause” requirement, the inquiry does not end. A proper
commitment question must also contain only those facts necessary to test
whether a prospective juror is challengeable for cause. The Court of
Criminal Appeals has held that a potential juror may be properly
challenged for cause and removed “if he cannot impartially judge the
credibility of witnesses” [Ladd, 3 SW3d 547, 560]. Here, D’s only witness
was X, a convicted felon. The question at issue was a commitment question
because it asked prospective jurors whether they would resolve an issue,
witness credibility, based solely on a particular fact, that the witness
was a convicted felon. The court of appeals concluded that the question
would lead to a proper challenge for cause [35.16(a)(9) CCP; Ladd, 3 SW3d
at 560]. The State argued that the question at issue would not have led to
a proper challenge for cause because the rules of evidence allow a juror
to disbelieve a witness on account of prior felony convictions. A juror
may choose to disbelieve any witness once the witness testifies, but if a
potential juror states that he or she would automatically disbelieve a
witness who has not yet testified based solely on the witness’s status as
a felon, that potential juror cannot impartially judge the credibility of
the convicted felon witness. The question posed by D’s counsel sought to
elicit whether potential jurors had an automatic predisposition to
disbelieve a witness who was a convicted felon and, thus, it would have
led to a proper challenge for cause. Because D’s question only asked
whether jurors would automatically disbelieve a witness with a prior
felony conviction, the question included only those facts necessary to
determine whether a prospective juror could be challenged for cause. As a
result of the trial court’s erroneous ruling, D was prevented from
learning whether potential jurors could impartially judge the credibility
of his only witness, X, a convicted felon. It was entirely possible, even
likely, that members of the venire who automatically disbelieve witnesses
with prior felony convictions served on D’s jury. The harm from the trial
court’s error was that D was precluded from making an intelligent decision
about whether to exercise the substantial right to call a witness on his
behalf to testify in front of a partial jury. This error had such a
significant or injurious effect on the jury’s verdict that D’s substantial
rights were affected. Because this non-constitutional error created
“substantial harm” the error could not be considered harmless.
The full-text court opinion is available at:
http://www.texasbarcle.com/CLE/CDGetOpinion.asp?lOpinionID=8542
May 31st, 2008