Court Rulings

APPEAL from a judgment of the Superior Court of Los Angeles County. A.K. Wylie, Judge. [fn*] Affirmed. Action for damages for wrongful termination of a contract of employment. Judgment for plaintiffs affirmed. [fn*] Assigned by Chairman of Judicial Council.

<p>Appeal from St. Louis City Circuit Court. — Eon. Dan’l G. Taylor, Judge.</p> <p>The verdict is totally insufficient on which to predicate a judgment. We submit that the verdict of the jury is wholly meaningless and does not carry with it any punishment whatever. After saying in the verdict that they, the jury, find the defendant guilty of embezzlement by bailee, their verdict adds these words, “and assess the punishment at forty dollars.” State v. Coon, 18 Minn. 518; Favor v. State, 54 Ga. 249; Day v. People, 78 111. 380; Peo. X. L. v. Whatson, 74 111. 20; Camer v. Green, 1 Cox cc 269; 2 Thompson, Trials, sec. 2640.</p> <p>The main point relied on by appellant is, that the verdict is insufficient to support a judgment for the reason that the word “fine” was omitted. Verdicts are not required to be in any particular form; it is sufficient if they convey, in unmistakable terms to the court just what the jury mean; and a verdict “for 82.67 with interest at six per cent, from February 1, 1889 — -total amount 90.85,” is good, the word “dollars” being meant and understood. The Provo Mfg. Co. v. Severance, 51 Mr. App. 260. It is only when the verdict is silent on some element of the crime, that it will not support a judgment. State v. DeWitt, 186 Mo. 69.</p>

<p>The JReporteri statement of the case:</p> <p>The material allegations of the petition will be found in the opinion of the court.</p> <p>Congress had discovered that there was a lurking equity somewhere in the date of any officer’s appointment, and with most commendable perseverance had sought to find, and to provide for it, but thus far had failed.</p> <p>The next attempt was, we submit, more successful. Ten years later the act approved February 2d, 1897, was passed (29 Stat. L., 593). It was identical in intent with the former legislation but it used the disjunctive conjunction “or” between the words “ appointment” and “ commission.” It says * * * ‘c shall be held and considered to have been mustered into the service of the United States in the grade named in his appointment or commission * * * .” For the first time t íe two things, which are in themselves entirely different, were severed and disassociated .by the word “or.” There can be no commission without an appointment, but there may be an appointment which is not succeeded bjr a commission. The latter is merely the evidence of the former. Appointing and commissioning are distinct acts. (Marbury v. Madison, 1 Cranch, 137; Oollins v. TJ. 8., 15 C. Cls. R., 31; Kilbvrn v. TJ. 8., Id., 17; Young v. TJ. 8., 19 C. Cls. R., 153; Bennett v. TJ. 8., Id., 385). Until the passage of the act of 1897 commissions and appointments had been treated as and given the effect of being one and inseparable by the use of the word “and.”</p> <p>It is true that the disjunctive and conjunctive conjunctions are frequently used interchangeably and are sometimes synonymous, but they must not be so considered when they •can be given their ordinary and usual meaning. If no other reason could be shown for making this change, the condition of the New York and Kentucky regiments is sufficient, but every consideration of justice and equity leads to the conclusion that an officer’s pay should commence from the date he actually entered upon d

<p>Appeal, No. 169, July T., 1893, by defendants, from judgment of C. P. Union Co., Dec. T., 1888, No. 66, on verdict for plaintiff.</p> <p>Ejectment against tenants in possession for undivided one half of tract of land in Kelly township, known as the “ Clingan Farm.” Before McClubb, P. J.</p> <p>The evidence on behalf of defendant was summed up in the third assignment of error as follows:</p> <p>“That John L. Lewis died on May 20, 1869, leaving to survive him, five children : Thomas S. Lewis, the plaintiff; and Mrs. Rebecca Lamb, Mrs. Deborah Harris, Miss Sarah J. Lewis, Mrs. Martha E. Zeigler, his daughters, the defendants.</p> <p>“ That about the year 1841, John L. Lewis, the father, purchased a tract of land in Centre county, of about 600 acres, and moving to that place, at that early date, being then a man of over 60 years of age, proceeded to make provision for his family. He had at that time another son, named Reese. He divided the land into three parts — one end of 150 acres for Thomas, the other end for Reese of 150 acres, the center portion for himself and daughters. Houses and barns were erected on the premises, the whole family working together, the means coming from the father. Both Reese and Thomas were unmarried. The enjoyment of the one part was given to Thomas, although no deed was executed to him or to Reese, the father remarking that they would get them in time. Reese died unmarried and without issue. John L. Lewis sold Reese’s part and the central part, realizing about the sum of $12,000 to $15,000, and as there were about 20 acres adjoining Thomas, which the purchaser did not want, it was thrown over into Thomas’s farm, making it about 173 acres, 30 perches, and is known in this proceeding as the ‘ Centre county farm.’</p> <p>“ In 1855 he purchased what is known as the Homestead, at Lewisburg, and removed there.</p> <p>“ In 1855 he purchased what is known as the Clingan farm, (the undivided half of which is the subject of this action), for $2,56

<p>Appeal from the County Court of De Witt. Tried below before the Hon. J. D. Terry, County Judge.</p> <p>The information charged the appellant and George Ruston, jointly, with the theft of property under the value of twenty dollars. A severance being had, the appellant was alone placed' upon trial, convicted, and his punishment affixed at confinement in the county jail for thirty days and a fine of fifty dollars.</p>

<p>Error to * the Court of Common Pleas of Washington county: Of October and November Term 1880, No. 300.</p> <p>Feigned issue, wherein E. T. Graham was plaintiff and James Sampson, in trust for the Peoples’ Savings Bank, was defendant, to try the title to a stove pattern 'seized by the sheriff as the property of A. Y. Graham.</p> <p>At the trial, before Hart, P. J., it appeared that in 1873, George A. Keller, who owned a foundry property and dwelling attached in Monongahela city, sold the same to A. V. Graham, who was the father of the plaintiff. A. Y. Graham carried on business in the foundry until the fall of 1877, when he took his son and Henry Rohrer into partnership with him. That partnership continued until the following October 1878, when the firm was dissolved by E. T. Graham buying out the interests of his father and ..Henry Rohrer in the concern. The stock, fixtures, &c., in the foundry were then valued by the parties at about $1100, making the interest of each party about $369.</p> <p>At this time, there were two liens against this real estate: 1. A mortgage for $1000, being a balance of the purchase-money and a judgment for $2000. Both of these liens were held by the Peoples’ Savings Bank of Monongahela city, the defendant. About the time of the dissolution of the partnership and purchase by the son, or shortly after, E. T. Graham purchased from his father certain property about the foundry, which belonged to the father and not to the firm. The purpose of this arrangement, as testified by the father and the son, and by one Alexander, was to Secure Alexander & Co.’s debt of that amount, which the father owed them, the son binding himself to assume and pay said debt in consideration of the transfer of these goods to him by the father. The bill of sale to E. T. Graham was in evidence, and was dated the 14th of November 1878. According to the testimony of the father and son, this arrangement was brought about by the suggestion of Alexander in the first inst

<p>Reported from Nisi Prius by Goodenow, J.</p> <p>Trover, to recovér certain railroad bonds. The most material facts, appearing from the report, are, in substance, that the plaintiffs hired of the defendants, on the 24th day of September, 1855, one thousand dollars, upon their promissory note, signed for them, by their treasurer, as principal, and by seven persons, as sureties. [From the testimony in the case, it appeared that the sureties were directors of the plaintiff corporation.] The plaintiffs pledged to the bank, as collateral security for the payment of the note, $2000, par value, in bonds of the plaintiff railroad company, with semiannual interest coupons attached.</p> <p>On the 15th of December following, the defendants discounted for the plaintiffs a similar note for $500, with $1000 in bonds, as collateral. And, on the 17th of January, 1856, a third note for $1000 was discounted, with $2000 in bonds as collateral for its payment.</p> <p>These notes were renewed from time to time, the bonds and coupons remaining pledged for the security of each successive note.</p> <p>On January 24th, 1857, the above notes were renewed by a similar note for $2800, on four months, and this was renewed May 23d, 1857, by a similar note for $3000, on six months, maturing November 14th, 1857, the bonds and coupons remaining pledged as collateral security for each successive note.</p> <p>This last note remained overdue till December 28th, 1857, when it was renewed by two notes, each dated December 26th, 1857, payable in six months, one for $2000, and the other for $1000, both of a similar character to the one first described.</p> <p>To secure these last two notes the aforesaid bonds and coupons of the plaintiff railroad company, amounting at par to $6000, were left pledged in the hands of the bank as collateral security for said notes. On a portion of the bonds, the coupons were payable on April 1,-1857, and thence semiannually eve'ry six months; and on the remainder of the bo

Applying the court's jurisdictional balance-shifting framework, the court holds that the defendant's removal notice, which pleaded more than five million dollars in controversy, satisfied the statutory jurisdictional threshold where plaintiff offered no rebutting evidence. The plaintiff's allegations that the former president's new company aided and abetted his breach of fiduciary duties satisfied the jurisdictional clause in Tex. Gov't Code Section 25A.004(b)(5). The petition's repeated allegations regarding misappropriation of sensitive business information invoked Section 25A.004(d)(4)'s jurisdictional clause, requiring that the suit relate to intellectual-property ownership or use, despite no standalone trade-secret misappropriation claim. This opinion addresses Civil Practice & Remedies Code Chapter 33's definition of "responsible third party" and the meaning of "the harm for which recovery of damages is sought," as used therein. This Opinion addresses the enforcement of a mandatory Buy-Sell Option clause and its specific performance remedy after the Offeror tendered the requisite buy/sell notice and the Offeree failed to respond to the notice and claimed the Offeror violated the underlying Company Agreement. The Court ultimately finds the Offeror is entitled to specific performance from the Offeree under the Buy-Sell Option clause. The Court awards the Offeror attorneys' fees. Ruling after court-ordered Rule 166(g) briefing. Ruling that Plaintiffs take nothing by their claims for declaratory relief and, with respect to one defendant, that Plaintiffs take nothing by their claims for accounting and inspection of books and records, breach of contract or an alleged partnership agreement, or for fraud and unjust enrichment. Ruling that Defendants take nothing by their claims for declaratory relief. Ruling that Plaintiffs' claims for breach of contract, breach of fiduciary duty, and fraud relating to one plaintiff and alternative claim for quantum meruit, and Defend

This opinion addresses Civil Practice & Remedies Code Chapter 33's definition of "responsible third party" and the meaning of "the harm for which recovery of damages is sought," as used therein. This Opinion addresses the enforcement of a mandatory Buy-Sell Option clause and its specific performance remedy after the Offeror tendered the requisite buy/sell notice and the Offeree failed to respond to the notice and claimed the Offeror violated the underlying Company Agreement. The Court ultimately finds the Offeror is entitled to specific performance from the Offeree under the Buy-Sell Option clause. The Court awards the Offeror attorneys' fees. Ruling after court-ordered Rule 166(g) briefing. Ruling that Plaintiffs take nothing by their claims for declaratory relief and, with respect to one defendant, that Plaintiffs take nothing by their claims for accounting and inspection of books and records, breach of contract or an alleged partnership agreement, or for fraud and unjust enrichment. Ruling that Defendants take nothing by their claims for declaratory relief. Ruling that Plaintiffs' claims for breach of contract, breach of fiduciary duty, and fraud relating to one plaintiff and alternative claim for quantum meruit, and Defendants' claim for conversion, remain pending and will proceed to jury trial as set. Granting traditional and non-evidence summary judgment against Plaintiff's defamation claim because the complained-of statements are not objectively verifiable and therefore, as a matter of law, are not defamatory. Denying reconsideration of an order remanding the case back to district court on the grounds that the removal to business court was untimely. Denying permission to take a permissive interlocutory appeal of that order. This opinion addresses (i) whether the Property (Trust) Code bars a trustee from enforcing a punitive damages waiver; (ii) if not, whether the waiver in one bond financing contract applies to claims based on a related contract in the same

Ruling after court-ordered Rule 166(g) briefing. Ruling that Plaintiffs take nothing by their claims for declaratory relief and, with respect to one defendant, that Plaintiffs take nothing by their claims for accounting and inspection of books and records, breach of contract or an alleged partnership agreement, or for fraud and unjust enrichment. Ruling that Defendants take nothing by their claims for declaratory relief. Ruling that Plaintiffs' claims for breach of contract, breach of fiduciary duty, and fraud relating to one plaintiff and alternative claim for quantum meruit, and Defendants' claim for conversion, remain pending and will proceed to jury trial as set. Granting traditional and non-evidence summary judgment against Plaintiff's defamation claim because the complained-of statements are not objectively verifiable and therefore, as a matter of law, are not defamatory. Denying reconsideration of an order remanding the case back to district court on the grounds that the removal to business court was untimely. Denying permission to take a permissive interlocutory appeal of that order. This opinion addresses (i) whether the Property (Trust) Code bars a trustee from enforcing a punitive damages waiver; (ii) if not, whether the waiver in one bond financing contract applies to claims based on a related contract in the same financing; and (iii) whether a trustee owes continuing fiduciary duties to its beneficiaries once the trustee resigns and is replaced by a substitute trustee. The court concludes that (i) the punitive damages waiver is enforceable here because the Trust Code does not reflect a legislative intent to bar such waivers; (ii) the subject waiver applies to both contracts because they are integral parts of the same financing arrangement; and (iii) a terminated and replaced trustee must protect a former beneficiary's confidential information that the trustee obtained during the trust relationship. Granting Defendant's motion to strike untimely filed su

Civ.R. 56, motion for summary judgment, de novo review, R.C. 2744.02, political-subdivision immunity, physical defect, safety device, negligence, reckless, open and obvious. Political subdivision and its employee appealed trial court's determinations as to their statutory immunity where a gym's ceiling tile fell on plaintiff-student. Open-and-obvious doctrine did not apply because tile fell immediately after being struck by a volleyball and because plaintiff was required to play volleyball in the gym. Trial court did not err in finding the condition of the ceiling amounted to a physical defect, piercing appellants' immunity. Appellants did not establish that they were entitled to judgment as a matter of law regarding whether the lack of a safety device constituted a physical defect. Dispute of fact existed regarding whether the gym teacher acted recklessly in deciding that the students could play volleyball.

CONTEMPT — CIVIL CONTEMPT — LAW OF THE CASE — ABUSE OF DISCRETION: The trial court abused its discretion by denying plaintiff's motion to hold defendant in contempt based on its interpretation of the trial court's original order, where that interpretation was inconsistent with the law of the case, as established by this court's prior decision interpretating that original order. Defendant school board's intervening termination of plaintiff's employment did not necessarily preclude the trial court from holding defendant school board in contempt for failing to reinstate plaintiff in the proper role, and to the extent it denied plaintiff's contempt motion based on an erroneous contrary belief, the trial court abused its discretion. Where the trial court abused its discretion by denying plaintiff's motion for contempt based on errors of law, the proper remedy was to reverse and remand to permit the trial court to exercise its discretion in the first instance.

Ruling that recent resolutions with some defendants do not affect the Court's jurisdiction over remaining claims and declining to rule at this stage whether the remaining defendant owes fiduciary duties to certain plaintiffs. Denying the defendants' motion to dismiss under Rule 91a. The Court first finds that the case falls within the Court's jurisdictional scope and that the plaintiff's non-suit was not filed in time to prevent the court's ruling on the Rule 91a motion. It next finds that the plaintiff's application to wind up a partnership under section 11.314 of the Business Organizations Code provided sufficient factual allegations to support her claims at this early stage of the case. The Court declined to award fees. This opinion addresses the ability of the Court to adjudicate legal malpractice and fractured malpractice-based claims arising out of an alleged attorney-client relationship involving an attorney, two business associates, and multiple business entities. The Court declines to consider whether an attorney-client relationship existed between the attorney and business entities but does address whether it has subject-matter jurisdiction to hear claims emanating from the alleged relationship. The Court concludes the legal malpractice and fractured malpractice-based claims are improperly before it and, accordingly, dismisses all claims against the attorney-Defendant without prejudice. Granting Plaintiff's motion to remand for untimeliness because the damages which Defendants contend satisfy this Court's jurisdictional requirement were facially pleaded more than thirty days before Defendants removed the case to Business Court. Remanding Defendants' motion for sanctions to district court. The Court addresses whether the Texas Legislature's amount-in-controversy threshold reduction gives the Texas Business Court jurisdiction to hear a previously remanded action and whether the subsequent removal of the action was proper and timely. The Court examines the st

This opinion addresses the ability of the Court to adjudicate legal malpractice and fractured malpractice-based claims arising out of an alleged attorney-client relationship involving an attorney, two business associates, and multiple business entities. The Court declines to consider whether an attorney-client relationship existed between the attorney and business entities but does address whether it has subject-matter jurisdiction to hear claims emanating from the alleged relationship. The Court concludes the legal malpractice and fractured malpractice-based claims are improperly before it and, accordingly, dismisses all claims against the attorney-Defendant without prejudice. Granting Plaintiff's motion to remand for untimeliness because the damages which Defendants contend satisfy this Court's jurisdictional requirement were facially pleaded more than thirty days before Defendants removed the case to Business Court. Remanding Defendants' motion for sanctions to district court. The Court addresses whether the Texas Legislature's amount-in-controversy threshold reduction gives the Texas Business Court jurisdiction to hear a previously remanded action and whether the subsequent removal of the action was proper and timely. The Court examines the statutory construction of House Bill 40 and determines removal was both proper and timely under Texas Government Code 25A.006(f). Granting Plaintiffs' motion for summary judgment against defendants' counterclaims for declaratory relief because each requested declaration either duplicates issues already joined by the pleadings or seeks relief beyond this Court's jurisdiction. Granting Defendant/Counter-Plaintiff/Third-Party Plaintiff TMC's Traditional Motion for Partial Summary Judgment on Termination against Plaintiff/Counter-Defendant City Choice. Although City Choice's termination notice was clear and unequivocal; its tender of its termination notice was not the exercise or acceptance of an option, and is therefore, not sub

R.C. Ch. 2744; R.C. 2744.02; R.C. 2744.03(A)(6); political-subdivision immunity; political-subdivision employee immunity; willful, wanton or reckless conduct; summary judgment. Judgment affirmed, and case remanded. The trial court properly denied summary judgment under Civ.R. 56(C) because genuine issues of material fact remain in dispute regarding the cause of the subject motor vehicle accident and whether appellant Kiernan's actions constitute willful, wanton, or reckless conduct. Appellants are not entitled to immunity under R.C. Ch. 2744 as a matter of law. Therefore, summary judgment is improper.

STATE EMPLOYEE RELATIONS BOARD — EXCLUSIVE JURISDICTION — COLLECTIVE BARGAINING AGREEMENT — UNFAIR LABOR PRACTICE: The trial court did not err by dismissing plaintiff's complaint, which essentially alleged an unfair labor practice, because the State Employment Relations Board ("SERB") had exclusive jurisdiction to hear her claim, and where SERB dismissed her unfair labor practice charge for lack of probable cause, plaintiff cannot appeal that decision to the court of common pleas.

CIV.R. 42 — EVID.R. 601(B)(5)(b) — HABIT EVIDENCE — JURY INSTRUCTIONS— PUNITIVE DAMAGES — SETOFF — CIV.R. 19(A) — ABSENT-DEFENDANT INSTRUCTION — R.C. 2315.21(D)(2)(b): The trial court did not abuse its discretion under Civ.R. 42 in joining plaintiffs' medical claims for trial where plaintiffs proceeded under similar legal theories, received similar surgeries from defendant, and presented identical expert witnesses, thus creating common questions of law and fact. The trial court erred in admitting the testimony of a physician witness as to defendant's habit in advising his patients where the physician witness did not testify to a proper foundation for defendant's habit, but the error was harmless because there was no indication the jury relied on this testimony in reaching its verdicts. The trial court did not err in admitting the testimony of an expert medical witness where the witness satisfied the standard of active clinical practice in the July 2023 version of Civ.R. 601(B)(5)(b), which applied to plaintiffs' cases because they were pending at the time. The trial court did not err in issuing an absent-defendant instruction that advised that the defendant doctor's absence from the trial gave rise to a negative inference but also advised that the jury retained the discretion to make or reject inferences. The trial court did not err in curing the absence of plaintiffs' insurers as the real parties in interest under Civ.R. 19(A) by excusing defendant's payment for past medical expenses, absent appropriate releases. The trial court did not err in limiting the demonstration of spinal anatomy by defense experts because such demonstrations would have been cumulative. The trial court did not err in allowing an award for the plaintiffs' future medical damages where predictive evidence was submitted at trial. The trial court erred in failing to cap punitive damages against an individual doctor-defendant at $350,000 pursuant to R.C. 2315.21(D)(2)(b), as the statute imposes a