Third Court of Appeals Civil Update

By Laurie Ratliff

The following are summaries of selected civil opinions issued by the Third Court of Appeals during April 2023. The summaries are an overview; please review the entire opinions. Subsequent histories are current as of May 8, 2023.

PARENTAL TERMINATION: Court reverses termination for failure to comply with ICWA.

M.Y. v. Tex. Dep’t of Fam. & Prot. Servs, No. 03-22-00720-CV (Tex. App.—Austin Apr. 23, 2023, no pet. h.).

M.Y. had Indian heritage as Cherokee and Blackfoot, although she was not a registered tribe member. M.Y.’s grandmother was a Cherokee tribe member. Neither tribe was notified as required by the Indian Child Welfare Act (ICWA) to allow a tribe representative to participate in the termination proceeding with a known or suspected Indian child.

The trial court terminated M.Y. and D.Y.’s parental rights. The court of appeals observed that the ICWA raises the standard of proof to beyond a reasonable doubt.

Because no tribe was notified and because the trial court used an erroneous standard of proof, the trial court erred in granting termination. The court reversed and remanded.

FAMILY LAW: Court affirms severance of attorney fee claim in divorce case.

Musick v. Zamora, No. 03-2100555-CV (Tex. App.—Austin Apr. 27, 2023, no pet. h.) (mem. op.).

Musick intervened in Zamora’s divorce, alleging an interest in the lawsuit for nonpayment of attorney fees. The trial court severed Musick’s claim and signed the final divorce decree.

Musick appealed the severance order. Musick contended that the only procedural vehicle to challenge an intervention is a motion to strike, not a severance.

The court of appeals noted that a claim is properly severable when: 1) the controversy involves more than one cause of action; 2) the severed claim could be in a lawsuit if independently asserted; and 3) the severed claim is not interwoven and involves different facts and issues than the remaining action.

The court of appeals concluded that a trial court was not prohibited from severing an intervenor’s claims. The court affirmed.

CAUSES OF ACTION: Court follows prior opinion that there is no aiding-and-abetting cause of action.

John Roberts Austin I, LP v. Netaji, No. 03-21-00540-CV (Tex. App.—Austin Apr. 20, 2023, no pet. h.) (mem. op.).

Appellants sued Netaji, alleging he had harassed, intimidated, and threatened them, and sued appellees for aiding and abetting Netaji’s conduct.

The trial court dismissed appellants’ claims, based on an Austin Court of Appeals opinion from 2020, Hampton v. Equity Trust Co., which held that a cause of action for aiding and abetting does not exist in Texas.

Appellants contended the panel erred in Hampton and urged the court to adopt Restatement of Torts § 876.

The court of appeals observed that it was bound by the prior panel decision unless there is an intervening change by the legislature or a higher court, or the court considers the issue en banc. The court further concluded that, as an intermediate appellate court, it cannot be the first to recognize a new cause of action. The court affirmed.

PERMISSIVE APPEAL: Court upholds owners’s challenge to HOA’s failure to comply with voting procedures.

Rockwall Ranch Prop. Owners Assoc. v. Gonzales, No. 03-2200004-CV (Tex. App.—Austin Apr. 6, 2023, no pet. h.) (mem. op.).

Owners sued to challenge Association’s non-compliance with the bylaws’s voting provision. The bylaws provided that votes may be cast in person or by proxy. Association counterclaimed, contending that members may vote absentee or by electronic ballot as provided in Property Code § 209.00592.

The trial court denied Association’s motion for summary judgment and granted a motion for permissive appeal. Association contended that Section 209.00592 superseded the bylaws and permitted absentee or electronic voting.

The court of appeals concluded a dedicatory document may offer multiple voting methods, but it must offer absentee or proxy. The court rejected Association’s interpretation that it was authorized to use each of the statute’s voting methods without regard to those listed in the bylaws. The court affirmed.

Laurie Ratliff is a former staff attorney for the Third Court of Appeals. She is board-certified in civil appellate law by the Texas Board of Legal Specialization and an owner at Laurie Ratliff LLC.