| Texarkana Court of Appeals Links Tex. App. - [6th Dist.] |
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SNIPPETS FROM OPINIONS FROM 6TH COURT OF
APPEALS RELEVANT TO APPEALS PROCESS
APPELLATE JURISDICTION
This Court has jurisdiction only over appeals from final decisions of trial courts and
from interlocutory orders as provided by statute. Lehmann v. Har-Con Corp., 39 S.W.3d
191, 195 (Tex. 2001); see Tex. Civ. Prac. & Rem. Code Ann. § 51.014 (West 2008). “[A]
judgment issued without a conventional trial is final for purposes of appeal if and only if
either it actually disposes of all claims and parties then before the court, regardless of
its language, or it states with unmistakable clarity that it is a final judgment as to all
claims and all parties.” Lehmann, 39 S.W.3d at 192–93. To determine whether an
order actually disposes of all pending parties and claims, the appellate court may look
to the record in the case. Id. at 205. Therefore, we first review the live pleadings, in the
context of the parties’ asserted grounds for seeking summary judgment, to determine
what parties and claims were pending when the trial court signed the judgment. See
Rose v. First Am. Title Ins. Co. of Tex., 907 S.W.2d 639, 641 (Tex. App.—Corpus Christi
1995, no writ).
MANDAMUS STANDARD AS ARTICULATED BY THE COURT OF
APPEALS
We may grant a petition for writ of mandamus when the relator shows that there is no
adequate remedy at law to redress the alleged harm and that the act to be compelled is
purely ministerial. Aranda v. Dist. Clerk, 207 S.W.3d 785, 786 (Tex. Crim. App. 2006)
(orig. proceeding). An order entered without due process is void. Cf. In re Taylor, 130 S.
W.3d 448, 449 (Tex. App.––Texarkana 2001, orig. proceeding); cf. also Abdullah v. State,
211 S.W.3d 938, 942 (Tex. App.––Texarkana 2007, no pet.) (order removing funds from
inmate’s account did not afford procedural due process for inmate’s property interest).
Mandamus relief may be afforded where the trial court’s order is void. In re Acceptance
Ins. Co., 33 S.W.3d 443, 454 (Tex. App.—Fort Worth 2000, orig. proceeding); see also
Dikeman v. Snell, 490 S.W.2d 183, 186 (Tex. 1973) (orig. proceeding) (providing
mandamus relief for void nunc pro tunc judgment entered after original judgment had
become final). If the subject notification is void, the relator need not show he did not
have an adequate appellate remedy, and mandamus relief is appropriate. In re Sw.
Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).
Mandamus is not available if another remedy, though it would have been adequate,
was not timely exercised. In re Tex. Dep’t of Family & Protective Servs., 210 S.W.3d 609,
614 (Tex. 2006) (orig. proceeding).
NO TIMELY NOTICE OF JUDGMENT
If a party adversely affected by an appealable order, [...] does not receive notice from the
district clerk or acquire actual knowledge of the order within twenty days of the date it
was signed, the post-judgment timetables begin on the date the party received notice of
the order, provided the affected party complies with the requirements of Rule 306a of
the Texas Rules of Civil Procedure, if notice or actual knowledge is obtained within
ninety days of the date the order was signed. Tex. R. Civ. P. 306a(4). Nothing in the
record before this Court indicates [party] filed a sworn motion and notice indicating the
date on which he actually received the order. See Tex. R. Civ. P. 306a(5).
BILL OF REVIEW
In the circumstance notice of an appealable order is not received until all appellate
deadlines have passed, a litigant may be entitled to file a bill of review. See Tex. R. Civ.
P. 329b(f).
DEFECTIVE BRIEFING ON APPEAL
T[he] failure to offer legal analysis has heretofore been found to constitute a waiver of
the issue on appeal. See Parker v. CCS/Meadow Pines, Inc., 166 S.W.3d 509, 513 n.4
(Tex. App.—Texarkana 2005, no pet.).
EFFECT OF NO FINDINGS OF FACTS AND CONCLUSIONS OF LAW
When a party does not request findings of fact or conclusions of law, the judgment
implies all necessary findings of fact to support it are present, provided (1) that the
proposition is one raised by the pleadings and supported by the evidence and (2) that
the judge’s decision can be sustained on any reasonable theory that is consistent with
the evidence and the applicable law, considering only the evidence favorable to the
decision. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Jones v. Smith, 157 S.
W.3d 517 (Tex. App.—Texarkana 2005, pet. denied).
APPELLATE REVIEW OF SUMMARY JUDGMENTS
We employ a de novo review of the trial court’s grant of a summary judgment, which is
based on written pleadings and written evidence. Valence Operating Co. v. Dorsett, 164
S.W.3d 656, 661 (Tex. 2005); Lamar v. City of Longview, 270 S.W.3d 609, 613 (Tex. App.
—Texarkana 2008, no pet.); see Tex. R. Civ. P. 166a(c). Summary judgment is proper if
Chen established that there was no genuine issue of material fact and that they are
entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); French v. Gill, 252 S.W.
3d 748, 751 (Tex. App.—Texarkana 2008, pet. denied); Powers v. Adams, 2 S.W.3d 496,
497 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (citing Nixon v. Mr. Prop. Mgmt. Co.,
690 S.W.2d 546, 548 (Tex. 1985)).
During our analysis of the traditional motion, and in deciding whether there is a
disputed material fact issue which precludes summary judgment, proof favorable to
Braxton will be taken as true, and every reasonable inference will be indulged in his
favor. Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308, 311 (Tex. 2002);
Nixon, 690 S.W.2d at 548–49. A no-evidence summary judgment is essentially a
pretrial directed verdict. We, therefore, apply the same legal sufficiency standard in
reviewing a no-evidence summary judgment as we apply in reviewing a directed verdict
to determine whether Braxton produced any evidence of probative force to raise a fact
issue on the material question presented. Wal-Mart Stores, Inc. v. Rodriguez, 92 S.W.
3d 502, 506 (Tex. 2002); Woodruff v. Wright, 51 S.W.3d 727 (Tex. App.—Texarkana
2001, pet. denied). A nonmoving plaintiff will defeat a no-evidence summary judgment
motion by presenting more than a scintilla of probative evidence on each element of his
or her claim. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003).
The trial court’s summary judgment specified no particular ground as supporting
the summary judgment. When, as is the case here, the trial court does not set out the
grounds on which it ruled, we affirm the summary judgment if any ground urged in the
motion for summary judgment is meritorious. W. Invs., Inc. v. Urena, 162 S.W.3d 547,
550 (Tex. 2005).
APPELLATE REVIEW IN TERMINATION OF PARENTAL RIGHTS CASES
We [...] turn to the question of whether the requisite clear and convincing evidence
established sufficient proof of the alleged grounds for termination of the appellants’
parental rights. Tex. Fam. Code Ann. § 161.001 (West 2010); In re J.O.A., 283 S.W.3d
336, 344 (Tex. 2009). Clear and convincing evidence is “proof that will produce in the
mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought
to be established.” J.O.A., 283 S.W.3d at 344.
When legal sufficiency of evidence supporting termination of parental rights is
challenged, we look at all the evidence in the light most favorable to the finding to
determine whether a reasonable trier of fact could have formed a firm belief or
conviction that the finding was true. Id. at 344–45 (citing In re J.F.C., 96 S.W.3d 256, 266
(Tex. 2002)). In this bench trial, we assume that the trial court resolved disputed facts in
favor of its finding if a reasonable fact-finder could do so, but disregard all evidence that
a reasonable fact-finder could have disbelieved or found to have been incredible. J.F.
C, 96 S.W.3d at 266.
In reviewing for factual sufficiency, we give due consideration to evidence the
court could reasonably have found to be clear and convincing. In re C.H., 89 S.W.3d 17,
27 (Tex. 2002). We are to determine whether the evidence is such that a fact-finder
could reasonably form a firm belief or conviction about the truth of the allegations. Id. at
25. A court of appeals should consider whether disputed evidence is such that a
reasonable fact-finder could not have resolved that disputed evidence in favor of its
finding. J.F.C., 96 S.W.3d at 266. If, in light of the entire record, the disputed evidence
that a reasonable fact-finder could not have credited in favor of the finding is so
significant that a fact-finder could not reasonably have formed a firm belief or conviction,
then the evidence is factually insufficient. Id.
Best Interests of Children
There is a strong presumption that a child’s interest is best served by preserving
the conservatorship of the parents; however, clear and convincing evidence to the
contrary may overcome the presumption. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006)
(per curiam). In deciding whether termination would be in the best interest of the child,
the trial court may consider this nonexclusive list of factors: (1) the desires of the child;
(2) the emotional and physical needs of the child now and in the future; (3) the
emotional and physical danger to the child now and in the future; (4) the parental
abilities of the individuals seeking custody; (5) the programs available to assist these
individuals to promote the best interest of the child; (6) the plans for the child by these
individuals or by the agency seeking custody; (7) the stability of the home or proposed
placement; (8) the acts or omissions of the parent which may indicate that the existing
parent-child relationship is not a proper one; and (9) any excuse for the acts or
omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re K.
W., 335 S.W.3d 767, 770 (Tex. App.—Texarkana 2011, no pet.). Also, evidence offered
to prove grounds for termination is relevant to determining if the termination is in the
best interest of the child. C.H., 89 S.W.3d at 28; In re J.W.M., 153 S.W.3d 541, 548–49
(Tex. App.—Amarillo 2004, pet. denied) (“While the prospect of adoption into a stable
home cannot alone be said to be a determinative factor, it clearly is among the factors
the court properly could consider . . . .”). It is unnecessary to prove all of these factors
as a condition precedent to parental termination. C.H., 89 S.W.3d at 27.