September 2025
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The following are summaries of selected civil opinions issued by the Third Court of Appeals during June and July 2025. The summaries are an overview; please review the entire opinion. Subsequent histories are current as of August 12, 2025.
TTCA: Service on governmental employee is not service on governmental entity.
Tanner v. Tex. State Univ., No. 03-21-00131-CV (Tex. App.—Austin June 11, 2025, no pet. h.). The Supreme Court remanded for the Court of Appeals to determine whether service on a governmental employee constituted service on the government. Following injuries sustained on campus, Tanner sued Scott, a TSU employee, and TSU. Tanner served Scott almost two years after filing suit and served TSU three-and-a-half years after limitations had run. The trial court granted TSU’s plea to the jurisdiction alleging untimely service. The Court of Appeals noted that the election-of-remedies provision in the TTCA favors the expedient dismissal of governmental employees when the lawsuit should have been against the government. Section 101.106(e) applies when suit is filed against both the government and its employee. When the government files a motion under Section 101.106(e), the employee shall be dismissed and the suit continues against the government if the suit has been properly brought against the government. The Court concluded that TSU had no obligation to file a motion to dismiss Scott until TSU was served and brought into the suit. The Court held that service on Scott was not service on TSU and affirmed. The dissent concluded that because TSU filed a motion to dismiss Scott under Section 101.106(e), it effectively confirmed Scott was acting within the scope of his employment and that TSU, not Scott, was the proper party. Under Section 101.106(e), the suit proceeds solely against the government; failure to serve TSU did not bar her claims.
ORIGINAL PROCEEDING: Court grants mandamus relief where trial court vacated a protective order with a hearing.
In re Glenny, No. 03-25-00412-CV (Tex. App.—Austin June 24, 2025, orig. proceeding). The trial court granted Relator’s temporary ex parte protective order on June 6, 2025, and set a hearing for June 26. Real party in Interest (RPI) filed a motion to vacate the protective order on June 9. The judge who granted the protective order granted the motion to vacate on June 10 without a hearing. Relator contended that vacating the protective order without a hearing violates Family Code Section 83.004. Section 83.004 provides that “[o]n the filing of the motion to vacate [a protective order], the court shall set a date for hearing the motion as soon as possible.” The Court concluded that the plain language of Section 83.004 imposes a duty to hold a hearing. “Hearing” means a live, evidentiary hearing not submission to the court for a ruling. The Court reasoned that the statute’s remedial intent to effectuate humanitarian and preventive purposes are best accomplished by giving the protective-order applicant the opportunity to participate in a hearing seeking to vacate it. The Court further concluded that because the petition seeks to preserve a statutory right to legal process, Relator lacks an adequate remedy at law. The Court granted mandamus relief.
TRIAL PROCEDURE: Court holds attorney-fees evidence sufficient to affirm award.
Kozinn v. Kozinn, No. 03-23-00378-CV (Tex. App.—Austin June 25, 2025, no pet. h.) (mem. op.). In an enforcement petition for multiple violations of the parties’ divorce decree, the trial court ordered father to pay over $47k in attorney’s fees to mother’s attorney. Although mother did not plead the statutory basis for an award of fees, the Court of Appeals concluded that Family Code Section 9.014 permits an award of fees in a suit to enforce a decree and that Section 106.002 gives a trial court discretion in all SAPCRs to award fees directly to a party’s attorney. Father challenged the sufficiency of the evidence supporting the fee award pointing to the heavily redacted invoices. Mother’s attorney, however, testified extensively on the various tasks she and her staff performed, including many tasks that arose in response to father’s conduct. The court concluded the evidence was sufficient and affirmed.
HEALTH CARE LIABILITY: Court reverses and dismisses because of deficient expert report.
Agahi v. Flynt, No. 03-24-00835-CV (Tex. App.—Austin June 27, 2025, no pet. h.) (mem. op.). In this interlocutory appeal, Flynt sued Agahi and others for injuries he sustained from orthodontic treatment. Flynt alleged that Agahi placed an orthodontic bracket but instructed a dental assistant to position the wires. Agahi did not check the placement of the wires. Two months later, Flynt swallowed the wire and spring coils, requiring a hospital stay. The trial court denied Agahi’s challenge to Flynt’s expert’s report. The Court of Appeals concluded the report failed to meet TMLA Section 74.351. The report failed to identify any breach of the standard of care by the dental assistant. Such failure then fails to implicate Agahi’s conduct for purposes of causation. The report also failed to identify the standard of care for an orthodontist. The report further failed to explain who caused or how the orthodontic components dislodged from the bracket. The Court held that the report was so deficient it constituted no report at all. The Court reversed, remanded for a determination of attorney’s fees, and ordered dismissal of Flynt’s claims.
FAMILY LAW: Court suspends portions of divorce decree pending appeal.
Schwartz-Poludniewska v. Schvartz, No. 03-25-00214-CV (Tex. App.—Austin July 24, 2025, no pet. h.) (per curiam) (mem. op.). The parties’ divorce decree confirmed the marital home was father’s separate property and granted him exclusive possession. Mother and children had 30 days after the decree to vacate the house. Mother asked the Court of Appeals to suspend the portion of the decree ordering her to vacate the home until the Court decided her appeal of the decree. The Court observed that Family Code Section 109.002(c) provides that an appellate court may suspend final orders or portions of final orders in SAPCRs “on a proper showing.” Such showing includes avoiding disrupting the current living arrangements for a child pending appeal. The Court rejected father’s arguments that mother must post a bond and that permitting mother and children to remain in the house amounted to spousal support. The Court abated the appeal, stayed portions of the decree that divested mother’s right to reside in the home, and remanded for the trial court to make recommendations to the Court of Appeals regarding conditions and requirements to impose on mother while remaining in the home. The dissent concluded Section 109.002 does not permit suspension of a divorce decree’s property division.
FAMILY LAW: Court affirms divorce decree’s division of future stock distributions.
Brenner v. Brenner, No. 03-23-00400-CV (Tex. App.—Austin July 25, 2025, no pet. h.) (mem. op.). During marriage, husband acquired a 30.33 percent stock ownership in company. In the divorce, the trial court awarded wife a 60 percent beneficial ownership and husband a 40 percent beneficial ownership interest in the stock and imposed a constructive trust on future payments by the company to husband as a stockholder, giving wife her 60 percent share. Husband appeals trial court’s division of stock. Husband contended that future payments in the form of “milestone payments” are his separate property. Husband contended that “milestone payments” are based on possible future events and on his future work and thus should be separate property. The Court of Appeals concluded that the milestone payments will be made to husband in dividends or distributions to company’s stockholders, via his 30.33 percent stock interest. The constructive trust provisions carry out the 60-40 percent split of the stock that the trial court awarded in the decree. The Court noted that some mechanism must ensure that wife receives her share as only husband is the named owner of the stock. The Court affirmed.