Legal Update Newsletter
(May 17, 2001)

This Newsletter is published, approximately every other month, by
Verner & Brumley, P.C., Dallas, Texas. It is published by email.
The current issue is displayed at http://www.vernerbrumley.com/

In three pages, the Newsletter updates the law in three areas:
Texas procedural and remedial law, Texas family law (our firm's
specialty), and family law of national import, including tax law.

We abstract only published cases. All cases reported may be found
on commercial web directories. We have included hypertext links
to free sources in our web site version of the Newsletter (when
free sites are available - and when we can find them!).

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NEWSFLASHES:

Better behave: You can be 'cuffed and taken to jail for not
wearing a seat belt, at least in Texas, Atwater v. Lago Vista, No.
99-1408 (U.S. Apr. 24, 2001), but our legislature is working on
the problem. See S.B. 112 & H.B. 363.

ERISA & Texas law: United States Supreme Court holds that
ERISA plan provisions prevailed when man received life
insurance policy and pension plan in divorce, died shortly post-
divorce, but never changed beneficiary designation of ex-wife with
plan's administrator. Washington State law that plan beneficiaries
are automatically revoked upon divorce preempted by federal
law. Egelhoff v. Egelhoff, No. 99-1529 (U.S. Mar. 21, 2001).
Compare Weaver v. Keen, No. 10-99-305-CV (Tex. App. -
Waco Apr. 18, 2001, n.p.h.) (order denying pet. reh.) (Vance,
J.) (rev'g & rem'g to County Court at Law No. 4, Dallas
County) (agrees with Egelhoff but reaches contrary result).

From the +Net: Did you hear about the terrorists who held the
entire ABA convention hostage?  They threatened to release one
lawyer per hour unless their demands were met.

CONTENTS:

Page One: Texas Procedure & Remedies

How final is final?
Unpleasant business
Discrimination causation
Admissions undeemed
Scope of remand

Page Two: Texas Family Law

Frequent flyer miles
Property law in a nutshell
Intentional infliction claim upheld
Child abuse reporting statute upheld
Timely appeal hearings required

Page Three: National & Federal Family Law

MD maintenance
Boarding school counts
Post-HS child support constitutional
No horsewhipping allowed
No prenuptial waiver


Page One: Texas Procedure and Remedies

How final is final? A judgment is final if it says "with unmistakable
clarity" that it is final, or if the judgment actually disposes of all
claims and parties before the court.  A "Mother Hubbard" clause
"does not indicate finality." Guajardo v. Conwell, 44 Tex. S. Ct.
J. 693 (Apr. 26, 2001) (per curiam) (concurring in result only)
(aff'g 30 S.W.3d 15 (Tex. App. - Houston [14th Dist.] 2000)
(per curiam) (granting motion to dismiss appeal)).

Unpleasant business: Mall manager told police lessee owned mall
store and threatened to file criminal trespass charges against
claimed purchaser, but did not act in extreme and outrageous
manner even though he did not give additional facts. Broad
dictum: "Business managers must have latitude to exercise their
rights in a permissible way in order to properly manage their
business, even though it may not always be pleasant for those
involved." Bradford v. Vento, 44 Tex. S. Ct. J. 655 (Apr. 26,
2001) (Abbott, J.) (aff'g, rev'g & ren'g 997 S.W.2d 713 (Tex.
App. - Corpus Christi 1999) (en banc) (Yanez, J.) (Seerden,
C.J., dissenting)) (aff'g, rev'g & ren'g 357th Judicial District
Court, Cameron County).

Discrimination causation: Texas Supreme Court adopts Texas
Labor Code's causation standard of "a motivating factor" in state-
law based employment discrimination suit. Court would have
followed Title VII standards but couldn't tell what they are
because federal courts "are closely divided on the issue." See
Texas Commission on Human Rights Act, Tex. Labor Code o
21.001 et seq.; cf. id. o  21.051 ("because of" standard), with
id. o 21.125 ("a motivating factor" standard). Quantum Chem.
Corp. v. Toennies, 44 Tex. S. Ct. J. 519 (Mar. 8, 2001) (Phillips,
C.J.) (Hecht, J., dissenting) (aff'g  998 S.W.2d 374 (Tex. App. -
Houston [1st Dist.] 1999) (Andell, J.) (rev'g & rem'g to 190th
Judicial District Court, Harris County)).

Admissions undeemed: Mandamus conditionally issued to trial
court to vacate order, after hearing within 30 days of trial, denying
motion to undeem ultimate-issue admissions when record showed
that party failed to respond because of law firm's accident or
mistake. No adequate remedy by appeal because relator's ability
to present viable claim or defense at trial vitiated or severely
compromised and no final, appealable judgment rendered
simultaneously. In Re: Kellogg-Brown & Root, Inc., No.
12-01-00116-CV (Tex. App. - Tyler May 8, 2001, orig.
proceeding) (Worthen, J.) (writ cond. granted).

Scope of remand: When a party contests liability in the trial court
but only damages on appeal, a reversal requires that both
damages and liability be retried because of Tex. R. App. P.
44.1(b), which says a court may not order a separate trial solely
on unliquidated damages if liability is contested, as by general
denial. Estrada v. Dillon, 44 Tex. S. Ct. J. 613 (Apr. 12, 2001)
(per curiam) (aff'g, rev'g & rem'g 23 S.W.3d 422 (Tex. App. -
Amarillo 2000) (Reavis, J.)) (rev'g & rem'g to 137th Judicial
District Court, Lubbock County, Shaver, J.).


Page Two: Texas Family Law

Frequent flyer miles: Trial court properly clarified divorce decree,
which awarded 200,000 Lufthansa frequent flyer miles to ex-wife,
to require ex-husband to "execute all documents and take all
necessary steps to permit" ex-wife to redeem miles by date
certain. In re: Alford, No. 06-00-00103-CV (Tex. App. -
Texarkana Mar. 7, 2001) (Ross, J.) (aff'g County Court at Law,
Polk County).

Property law in a nutshell: The Waco Court of Appeals has
written a couple of opinions that, between them, explain just about
everything you need to know about Texas marital property law.
Beard v. Beard, No. 10-98-357-CV (Tex. App. - Waco Apr.
18, 2001) (everything except new reimbursement statute) (Vance,
J.); Gill v. Gill, No. 10-00-163-CV (Tex. App. - Waco Mar. 7,
2001) (new reimbursement statute) (Davis, C.J.).

Intentional infliction claim upheld: Trial court's jnov on jury verdict
of $325,000 to wife for intentional infliction of emotional distress
reversed. Also reversed was sanctions award of $120,000
against wife "for her misconduct during the pendency of this
cause." Toles v. Toles, No. 05-97-00303-CV (Tex. App. -
Dallas Apr. 11, 2001) (Rosenberg, J., assigned) (rev'g, ren'g &
rem'g to 254th Judicial District Court, Dallas County).

Child abuse reporting statute upheld: Houston Court of Appeals,
in split decision, upheld constitutionality of child abuse reporting
statute, Tex. Fam. Code o 261.101 et seq., against indefiniteness
argument. Rodriguez v. State, No. 14-99-00479-CR (Tex. App.
- Houston [14th Dist.] Apr. 19, 2001) (Yates, J.) (Baird, J.,
assigned, dissenting) (aff'g County Criminal Court at Law No.
14, Harris County, Fields, J.).

Timely appeal hearings required: Trial court abused its discretion
by trying case without first hearing appeal of associate judge's
ruling limiting discovery concerning valuation of spouse's interest
in law firm. Fountain v. Knebel, No. 05-99-01718-CV (Tex.
App. - Dallas Apr. 11, 2001) (Richter, J.) (rev'g & rem'g to
256th Judicial District Court, Dallas County).


Page Three: National and Federal Family Law

MD maintenance: In another of what it describes as "university
degree-divorce decree" cases, Wisconsin Supreme Court
upholds maintenance award of $1,700 per month for eight years
after four-year marriage because wife worked, did laundry, kept
house and even typed papers for husband while he finished
medical school and completed residency. Meyer v. Meyer, 232
Wis. 2d 191, 606 N.W.2d 184 (2000).

Boarding school counts: In calculating child support, which is
based on "primary physical responsibility," a/k/a "parenting time,"
trial court did not abuse its discretion in imputing child's time at
boarding school to father when father was primary custodial
parent and his family trust paid for school.  Katzberg v. White,
No. C031628 (Cal. App. May 1, 2001).

Post-HS child support constitutional: As against equal protection
challenge, Oregon Court of Appeals upholds constitutionality of
child support statute requiring child support for "child attending
school," which can include college attendance, despite absence of
legal requirement that married parents send their children to
college. In re: McGinley, No. A101792 (Or. App. Feb. 28,
2001).

No horsewhipping allowed: Lawyer, who had affair with client,
added "insult to injury" by billing client for legal services after
breaking off relationship, but actions did not constitute intentional
infliction of emotional distress because not "extreme and
outrageous" as matter of law. Sanctions of $20,000 upheld
against lawyer for, among other things, asking trial court to
horsewhip former client and her lawyer. Gaspard v. Beadle, 36
S.W.3d 229 (Tex. App. - Houston [1st Dist.] 2001, pet. denied).

No prenuptial waiver: Accepting court-ordered payment of
$5,000 from husband during pendency of divorce "as an
advancement on her award of equitable distribution" did not
constitute waiver by wife of right to enforce prenuptial agreement
in lieu of equitable distribution. Rubino v. Rubino, No. 99-443 (RI
Feb. 12, 2001).

Verner & Brumley, P.C.
3131 TurtleCreek Blvd.
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Dallas, Texas  75219
214.526.5234
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info@vernerbrumley.com
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Practice limited to Family Law

Copyright Verner & Brumley, P.C., 2001
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