RJW Media, Inc. v Heath

RJW appealed the bench trial verdict for heath on its suit to require heath to demolish a garage. The panel affirmed. It first held that Heath’s notice of a non-retained expert was insufficient as Rule of Civil Procedure 26(a)(4)(E) requires a written statement of the facts and opinions that the expert will testify about be served on the other party, Heath only identified subjects that the expert would testify about and this is insufficient under the rule as  the summary is intended to give fair notice of the testimony to allow the other party to make strategic decisions about discovery and the rules of civil procedure also require supplementation so a party can give the summary of what it anticipates a witness will testify about and then given a more complete notice once the witness had been interviewed. It also held there is no duty to object to an inadequate notice. However, the panel held the inadequate notice was harmless here as the testimony about the practices of the county on what is and is not a residence came in through at two other witnesses and the expert’s testimony was thus cumulative. It also held that Heath fulfilled his duties under the property’s covenants, conditions and restrictions as he provide enough information about the plans for the garage to allow the homeowners association to see if they met the aesthetic and building materials requirements.

Mardesich v Sun Hill Homes LC

Mardesich appealed the grant of a new trial motion field by Homes. The panel affirmed. It held that the original judge who heard the case made an error of law that required the grant for the new trial motion as the parties’ purchase agreement made Mardesich responsible for any damages to future improvements, there was no ambiguity or gap to be field and the original judge thus erred in placing responsibility on Homes and there was no evidence the parties mutually modified the agreement as the evidence only supported a finding that Mardesich intended to build a swimming pool in the back yard not that Homes agreed to accepted responsibility for the swimming pool. Homes was awarded attorney fees on appeal as it prevailed below and been awarded fees under the purchase agreement.

The Armer Texas Trust, et al. v Brazell et al.

Trust et al. appealed the denial of their motion to amend the complaint for a fifth time and dismissal of the complaint for lack of particularity. The panel affirmed. It held that Trust failed to challenge the reasoning of the district court in denying the motion to amend and that reasoning was sound as the motion was field after the deadlines imposed by the court and stipulated to the parties, Trust gave no justification for the delay and in fact knew the facts they wished to add to the complaint for over seven years before the motion was field and given the advanced stage for the litigation Brazell and the other defendants would have been prejudiced by granting the motion. It held granting the motion would have been futile in any event as none of the factual allegations connected any plaintiff to any false statement and thus failed to demonstrate reliance an element of the fraud claims. It finally held that the fraud pleading standard applied to the fraudulent transfer claims as the operative complaint only alleged intentional fraud and the argument a lesser standard applied was also unpreserved as it was not even mentioned before the district court.

C504750P LLC v Baker

Baker appealed the denial of her Rule of Civil procedure 60(b) motion for relief form a default judgment. The panel affirmed. It held that baker was properly served by publication as the process served went to her last known address five times, left his card once, spoke with neighbors to confirm she still lived at the house in question, C504750P’s attorney’s office ran an online search for Baker’s address, a certified letter was sent to the last known address and the attorney had received a response form Baker’s husband to a letter sent to the last known address before the complaint was field and thus reasonable efforts to serve were made before service by publication occurred. It also held that baker’s argument against the attorney fee award were inadequate as her brief contained no citations to authority.