The following are summaries of selected civil opinions issued by the Third Court of Appeals during January 2025. The summaries are an overview; please review the entire opinion. Subsequent histories are current as of February 10, 2025.
ARBITRATION: Court reverses trial court’s failure to enforce arbitration clause.
Design Tech Homes of Tex., LLC v. Siemens, No. 03-23-00735-CV (Tex. App.—Austin Jan. 10, 2025, no pet. h.) (mem. op.).
The parties’ construction contract contained an arbitration provision. Design sued Siemens to foreclose on its mechanic’s and materialman’s lien and sought damages. Siemens counterclaimed for defective construction.
The trial court denied Design’s motion to compel arbitration. The court of appeals rejected Siemens’ arguments that the arbitration provisions were ambiguous. The court also rejected Siemens’ argument that Design waived arbitration by filing suit. During the eight-month delay between Design filing suit and filing its motion to compel arbitration, Siemens made a settlement demand, the parties unsuccessfully mediated, no discovery was conducted, no substantive motions were filed, and the case was not set for trial.
The court held that Design did not substantially invoke the judicial process to waive arbitration and reversed and remanded.
ORIGINAL PROCEEDING: Court denies mandamus relief based on delay in filing.
In re Williams, No. 03-25-00013-CV (Tex. App.—Austin Jan. 15, 2025, orig. proceeding) (mem. op.).
Relator sought mandamus relief from the trial court’s order denying her motion to transfer under Family Code 155.201(a) in a SAPCR. The trial court signed the challenged order on December 13, 2024. Relator filed her petition for writ of mandamus after 4 p.m. on January 10, 2025, the Friday before the final hearing set on January 13. The court of appeals concluded that relator waived her right to mandamus relief by the delay in filing her petition.
The court denied relief without requesting a response. The dissent concluded relator showed a preliminary right to relief and would have requested a response.
FAMILY LAW: Court determines right to choose primary residence does not give parent minimum time of possession.
Gopalan v. Marsh, No. 03-22-00649-CV (Tex. App.—Austin Jan. 23, 2025, no pet. h.).
The trial court appointed the parties joint managing conservators. Consistent with the jury’s finding, the trial court gave Gopalan the exclusive right to designate the children’s primary residence but awarded him less possession time than the presumed minimum for a possessory conservator. The court of appeals rejected Gopalan’s argument that the possession schedule contravened the jury’s verdict and violated the Texas Constitution and Family Code.
The court concluded that the Family Code does not provide a minimum amount of possession along with the right to choose the child’s primary residence. The court found that the evidence supported the trial court’s departure from the standard possession order and affirmed. The concurrence and dissent concluded that “primary residence” means at least half, if not slightly more than half, of the time, found that the possession schedule violates the Texas Constitution and the Family Code, and would have reversed.
RESTRICTED APPEAL: Court reverses no-answer default based on service defect.
Dream Realty & Constr. Corp. v. Lin Family Revocable Trust Dated May 9, 2013, No. 03-23-00447-CV (Tex. App.—Jan. 24, 2025, no pet. h.) (mem. op.).
Dream Realty failed to answer Trust’s breach-of-contract lawsuit. The trial court granted Trust’s motion for default judgment. Dream filed a restricted appeal, contending Trust’s attempted service of process did not comply with the rules. The court of appeals noted that the record must demonstrate strict compliance with the rules for issuance, service, and return of citation to support a default. As relevant here, Rule 107(c) requires that with service by certified mail, the return receipt must contain the addressee’s signature. The return receipt contained a signature but not that of the corporation’s registered agent.
The court concluded that the discrepancy between the recipient and the signer is error apparent on the face of the record. Thus, return of service failed to strictly comply with Rule 107. The court reversed and remanded.