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).

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  Copyright Verner & Brumley, P.C., 2001