The Civil Appeals Practice at Bailey & Galyen

An Overview of Some of the Appellate Cases We Have Handled

At the law offices of Bailey & Galyen,Lawyer Paul Wieneskie we have over 35 years of experience representing clients as petitioners or respondents in civil appeals in the state courts in Texas. Our appellate clients come to us primarily as referrals from other lawyers, typically highly skilled and experienced trial attorneys who lack the inclination, experience or time to shepherd a case through the appeals process. We understand the importance of your relationship with your client, and will keep you fully informed of all developments in your case, so that we can work directly with you to evaluate your options and make decisions that are in the best interests of you and your client.

Contact our office online or call us at one of the numbers listed below to arrange a meeting to discuss your potential appeal.

Recent Appeals That We Have Handled

Bailey & Galyen attorney Paul Wieneskie, Board Certified in Civil Appellate Law, recently scored a major victory for a corporate client in the Fort Worth Court of Appeals. The case involved a business ownership and governance dispute and multimillion-dollar damage claims. Our client was a defendant in the trial court. Trial counsel obtained a take-nothing Summary Judgment against the plaintiffs’ claims, which was modified in response to plaintiffs’ motion for new trial. “We had a good Summary Judgment order, but it was modified in ways that rendered it almost useless for Res Judicata purposes,” Wieneskie said. “So we had to be both Appellants, asking the Court of Appeals to clean up the Summary Judgment order itself, and also Appellees seeking to uphold the take-nothing Summary Judgment against the plaintiffs’ claims. We were successful on both counts.

Here is the summary of the Opinion posted by the Court of Appeals on its website:
Summary Judgment: Settles–when the defendants moved for summary judgment based on the deficiency of the plaintiffs’ pleadings, and the plaintiffs did not object to the same nor request an opportunity to amend their pleading, the plaintiffs waived, for appellate review, the issue of whether the defendants should have first filed and gotten a ruling on special exceptions to their pleadings. The Court also affirms summary judgment against plaintiffs’ fraud claims because the only fraud alleged is on a privileged communication, to wit, an affidavit the defendant filed in this litigation that one plaintiff does not own the stock she claims, and thus does not allege a viable cause of action for fraud. Because defendants motions for summary judgment sought a judgment that “Plaintiffs take nothing,” the final judgment should not have included language that the plaintiffs’ claims were “dismissed”–it should have just stated that it was a take nothing judgment. Similarly, the final judgment should not have contained any language disclaiming res judicata effect of the final judgment–a final judgment, even though granted on deficient pleadings, is final, and bars the plaintiffs from relitigating any claim that, through the use of diligence, could have been litigated in this suit. The Court modified the final judgment to remove the dismissal language and language excepting the final judgment from res judicata effect, and otherwise affirmed the summary judgment.

On Dec. 4, 2012, the Houston 14th Court of Appeals issued its opinion in University of Texas v. Baker, 401 S.W. 3d 246, in which a father worked at the M. D. Anderson Cancer Center operating a milling machine which produced quantities of lead dust. When father’s children were found to have elevated levels of lead in their blood, father and mother sued M.D. Anderson on behalf of their children. M.D. Anderson filed a Plea to the Jurisdiction, arguing that it was protected by governmental immunity, because it claimed that the milling machine without appropriate safety equipment did not constitute “a condition or use of tangible personal property” under the Texas Tort Claims Act. The trial court overruled the plea to the jurisdiction, and M.D. Anderson appealed. Board certified civil appellate attorney Paul Wieneskie defended the trial court’s ruling on appeal. The Court of Appeals held that the parents alleged a use of tangible personal property supporting waiver of immunity; the parents alleged an inherently hazardous condition of tangible personal property supporting waiver of immunity; the milling machine used by father to make bronze apertures was a proximate cause of children’s lead exposure; and the parents adequately pleaded duty and breach. M.D. Anderson petitioned the Texas Supreme Court for review, and the court requested full briefing on the merits, but ultimately denied the petition.The case thereafter settled for a substantial sum.

On July 19, 2012, the Fort Worth Court of Appeals issued its opinion in Cause Number 02-11-00444-CV; Anne and John Settle v. A&W Industries, Inc. and Humberto George (President and sole shareholder of A&W). Paul Wieneskie, Bailey & Galyen’s Board Certified Civil Appellate attorney represented A&W. This was a business ownership and governance dispute. A&W discovered financial irregularities on the part of John Settle (Secretary and Treasurer) and restricted his access to corporate books and bank accounts while they investigated. Settle filed suit alleging fraud and breach of fiduciary duty by George, asserted a ½ ownership interest in the company, asked for at least $1.5million in damages, and asked for appointment of a receiver to run the company. A&W counterclaimed against the Settles for fraud, breach of fiduciary duty and embezzlement of at least $3 million in corporate funds. A&W and George obtained summary judgments against the Settles’ claims because their pleadings failed to state a cause of action, although the trial court in a modified order attempted to disclaim the Res Judicata effect of the Summary judgments.

A&W appealed to clean up the defective summary judgment order, and defended against the Settles’ appeal from the summary judgments. The Court of Appeals agreed with all of A&W and George’s contentions, modified the trial court’s order as requested, and affirmed the summary judgments in favor of A&W and George, as modified.

On April 9, 2009, the Fort Worth Court of Appeals issued its Opinion in Cause No. 02-08-285-CV; Smith v. Shofner Auto Repair, Inc. Paul Wieneskie, Bailey & Galyen’s Board Certified Civil Appellate attorney represented Shofner Auto Repair at trial and on appeal.

This was a premises liability case. During the 2005 ice storm, a Shofner employee slipped and fell on the icy parking lot of Shofner’s business, and sued, claiming Shofner had a duty to warn of the dangerous condition, or to make it safe. The trial court granted our motion for summary judgment, and the injured employee appealed. In response to our arguments, the Court of Appeals held that naturally-occurring ice in a parking lot is not an unreasonably dangerous condition as a matter of law, and so Shofner had no duty to warn or protect invitees from the ice. The Court upheld the summary judgment in favor of Shofner.

On May 30, 2012, the El Paso Court of Appeals issued its opinion in Cause Number 08-11-20-CV In the Estate of Laurine Abernethy, Deceased. Paul Wieneskie, Bailey & Galyen’s Board Certified Civil Appellate attorney represented Janet Achor.

Janet was Laurine’s CPA for ten years. The two also became close personal friends. About two years after they met, Laurine designated Janet as the beneficiary of an IRA and put her on two JTWROS bank accounts (totaling approximately $1.2 million).

Bethany, Laurine’s Administrator, sued Janet, alleging Janet breached her fiduciary duty to Laurine by putting herself on the accounts to which she had not contributed any funds. The trial court ruled in favor of Janet, finding the Administrator failed to provide any evidence of a fiduciary relationship or that any fiduciary duty was owed or breached or that any damages resulted.

Bethany appealed.

The Appellate court held that whether a fiduciary duty exists in an informal relationship is determined from the particular facts of the relationship between the persons involved. A fiduciary relationship is an extraordinary one and will not be lightly created. The mere fact that one party subjectively trusts another party does not alone indicate that confidence is placed in another in the sense demanded by fiduciary relationships. Something apart from the transaction between the parties is required. Solely because the relationship has been lengthy and cordial does not necessarily mean a confidential relationship exists.

The court found that while it was fairly obvious that the two had a close personal relationship, Bethany had failed to produce competent summary judgment evidence of the existence of a fiduciary relationship, informal or otherwise. The Court affirmed the summary judgment in favor of Janet.

Contact the Law Office of Bailey & Galyen

To learn more about the appellate services we offer, contact us online or call our office at one of the numbers listed below. Our phones are answered 24 hours a day, 7 days a week. Evening and weekend consultations are available upon request. Se habla español.

We handle all matters related to civil appeals for clients throughout Texas, including Arlington, Bedford, Burleson, Carrollton, Dallas, Fort Worth, Houston, Mesquite, Plano and Weatherford.