default rule in Texas

2005See Dow Chemical Co. v. Benton, 163 Tex. 477 , 357 S.W.2d 565, 567 (Tex.1962); Texas Employers Insurance Ass'n v. Wermske, 162 Tex. 540 , 349 S.W.2d 90, 94 (1961).

2005See Dow Chemical Co. v. Benton, 163 Tex. 477 , 357 S.W.2d 565, 567 (Tex.1962); Texas Employers Insurance Ass'n v. Wermske, 162 Tex. 540 , 349 S.W.2d 90, 94 (1961).

2022The default rule for the third question is that arbitrability is a threshold matter for the court to decide.” (first citing First Options, 514 U.S. at 942 , and then citing Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 61 (Tex. 2008))). –11– appellees, without authority, assert that the threshold question of arbitrability necessitates a determination of whether the FAA or the TAA applies.

2021The default rule for the third question is that arbitrability is a threshold matter for the court to decide.” (first citing First Options, 514 U.S. at 942 , and then citing Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 61 (Tex. 2008))). –11– appellees, without authority, assert that the threshold question of arbitrability necessitates a determination of whether the FAA or the TAA applies.

2005See Dow Chemical Co. v. Benton, 163 Tex. 477 , 357 S.W.2d 565, 567 (Tex.1962); Texas Employers Insurance Ass'n v. Wermske, 162 Tex. 540 , 349 S.W.2d 90, 94 (1961).

2005See Dow Chemical Co. v. Benton, 163 Tex. 477 , 357 S.W.2d 565, 567 (Tex.1962); Texas Employers Insurance Ass'n v. Wermske, 162 Tex. 540 , 349 S.W.2d 90, 94 (1961).

2024Id.

2022Hunt, 492 S.W.3d at 294 . 2 The term “dominant jurisdiction” is a misnomer because it is not a doctrine of jurisdiction but of venue.

2023Exceptions to this default rule may apply when the challenge to the arbitration agreement concerns “dispositive gateway questions,” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 , 84–85 (2002), or “particular procedural preconditions for the use of arbitration,” BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 35 (2014). 10 Farms, JV v. Altman Grp., Inc., 547 S.W.3d 624, 631 (Tex. 2018).6 If the parties have contractually agreed to delegate arbitrability disputes to the arbitrator, courts must enforce that agreement just as they must enforce an agreement to delegate resolution of the un

2023Exceptions to this default rule may apply when the challenge to the arbitration agreement concerns “dispositive gateway questions,” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 , 84–85 (2002), or “particular procedural preconditions for the use of arbitration,” BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 35 (2014). 10 the validity and scope of their arbitration agreement.

2013Where “the restricted appeal [is] filed within six months by a party that did not participate in the default hearing, the only question [is] whether error [is] apparent on the face of the record.” Wachovia Bank of Delaware, N.A. v. Gilliam, 215 S.W.3d 848, 849 (Tex. 2007)) “In a restricted appeal, defective service of process constitutes error apparent on the face of the record.” Dolly v. Aethos Commc’ns Sys., Inc., 10 S.W.3d 384, 388 (Tex. App.—Dallas 2000, no pet.).

2009The record reflects that Leonard Manor brought this restricted appeal within six months of the judgment and did not participate in the default hearing; the only remaining issue is whether error is apparent on the face of the record. (2) See Wachovia Bank of Del. , 215 S.W.3d at 850 .

2023Exceptions to this default rule may apply when the challenge to the arbitration agreement concerns “dispositive gateway questions,” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 , 84–85 (2002), or “particular procedural preconditions for the use of arbitration,” BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 35 (2014). 10 Farms, JV v. Altman Grp., Inc., 547 S.W.3d 624, 631 (Tex. 2018).6 If the parties have contractually agreed to delegate arbitrability disputes to the arbitrator, courts must enforce that agreement just as they must enforce an agreement to delegate resolution of the un

2020The default rule for the third question is that arbitrability is a threshold matter for the court to decide.” (first citing id. at 942, and then citing Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 61 (Tex. 2008))). 54 Jody James Farms, JV v. Altman Grp., Inc., 547 S.W.3d 624 , 631–32 (Tex. 2018); see also RSL Funding, 569 S.W.3d at 121 (“[A]s parties have a right to contract as they see fit, they may agree to arbitral delegation clauses that send gateway issues such as arbitrability to the arbitrator.”). 55 See, e.g., Haddock v. Quinn, 287 S.W.3d 158, 175 (Tex. App.—Fort Worth 2009, pet. denied

2025While the jurisdiction lasted it was exclusive, and could not be trenched upon by any other tribunal.”24 21 Wyatt v. Shaw Plumbing Company, 760 S.W.2d 245, 248 (Texas 1988). 22 In re J.B.

2025While the jurisdiction lasted it was exclusive, and could not be trenched upon by any other tribunal.”24 21 Wyatt v. Shaw Plumbing Company, 760 S.W.2d 245, 248 (Texas 1988). 22 In re J.B.

2023Nothing in the policy “manifest[ed] an intention to include the first day in the computation of the period,” id. at 863 , so the default rule had not been displaced.

2023But the lease’s text must include something that either expressly describes how the date will be calculated or that, at minimum, is clearly incompatible with the default rule, amounting to displacement by necessary implication.17 See Home Ins., 255 S.W.2d at 862–63.

2023See id. 14 See, e.g., Hinojosa v. Longoria, 381 S.W.2d 140 , 140–41 (Tex. Civ.

2023See id. 14 See, e.g., Hinojosa v. Longoria, 381 S.W.2d 140 , 140–41 (Tex. Civ.

2023Livestock owners generally may allow their animals to run at large, rendering Texas a “free-range.” Pruski v. Garcia, 594 S.W.3d 322 , 323 15 (Tex. 2020) (“From the time of the Republic of Texas, the default rule in this state has been that livestock owners may allow their animals to run at large.”); Gibbs v. Jackson, 990 S.W.2d 745, 747 (Tex. 1999).

2021“From the time of the Republic of Texas, the default rule in this state has been that livestock owners may allow their animals to run at large.” Pruski v. Garcia, 594 S.W.3d 322 , 323 (Tex. 2020); see Gibbs v. Jackson, 990 S.W.2d 745, 747 (Tex. 1999) (“Neither the courts nor the legislature of this state have ever recognized the rule of the common law of England which requires every man to restrain his cattle either by tethering or by inclosure. . . .

2023We have applied this principle in multiple contexts, including determining a promissory note’s maturity date, Young v. Van Benthuysen, 30 Tex. 762, 768 (1868); calculating time from the rendition of a judgment, Lubbock v. Cook, 49 Tex. 96 , 100–01 (1878); establishing the time frame for filing suit after the rejection of a claim against an estate, Hunter v. Lanius, 18 S.W. 201 , 202–03 (Tex. 1892); and in calculating a grace period for payment of a life insurance policy, Aetna Life Ins.

2023We have applied this principle in multiple contexts, including determining a promissory note’s maturity date, Young v. Van Benthuysen, 30 Tex. 762, 768 (1868); calculating time from the rendition of a judgment, Lubbock v. Cook, 49 Tex. 96 , 100–01 (1878); establishing the time frame for filing suit after the rejection of a claim against an estate, Hunter v. Lanius, 18 S.W. 201 , 202–03 (Tex. 1892); and in calculating a grace period for payment of a life insurance policy, Aetna Life Ins.

2023Exceptions to this default rule may apply when the challenge to the arbitration agreement concerns “dispositive gateway questions,” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 , 84–85 (2002), or “particular procedural preconditions for the use of arbitration,” BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 35 (2014). 10 Farms, JV v. Altman Grp., Inc., 547 S.W.3d 624, 631 (Tex. 2018).6 If the parties have contractually agreed to delegate arbitrability disputes to the arbitrator, courts must enforce that agreement just as they must enforce an agreement to delegate resolution of the un

2023Exceptions to this default rule may apply when the challenge to the arbitration agreement concerns “dispositive gateway questions,” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79 , 84–85 (2002), or “particular procedural preconditions for the use of arbitration,” BG Grp., PLC v. Republic of Argentina, 572 U.S. 25, 35 (2014). 10 the validity and scope of their arbitration agreement.

2023Co. v. Wimberly, 112 S.W. 1038, 1039 (Tex. 1908).13 13 It is usually clear when parties depart from the default rule, but we have also had occasion to elaborate on the kind of circumstances that constitute sufficient indicia of objective intent to do so.

2023Co. v. Wimberly, 112 S.W. 1038, 1039 (Tex. 1908).13 13 It is usually clear when parties depart from the default rule, but we have also had occasion to elaborate on the kind of circumstances that constitute sufficient indicia of objective intent to do so.

2019See LBL Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390 , 390– 91 (Tex. 1989) (per curiam) (“Once a defendant has made an appearance in a cause, he is entitled to notice of the trial setting as a matter of due process.”); Bryant v. Gamblin, 829 S.W.2d 228, 229 (Tex. App.—Eastland 1991, writ denied).

2013See LBL Oil, 777 S.W.2d at 391 ; Fisher, 227 S.W.3d at 199 .

2011See id. at 732–33.

2011See id. at 732–33.

2023RSL Funding, 569 S.W.3d at 120 .7 “If, on the other hand, the parties did not agree to submit the arbitrability question itself to arbitration, then the court should decide that question just as it would decide any other question the parties did not submit to arbitration, namely, independently.” First Options, 514 U.S. at 943.

2020The default rule for the third question is that arbitrability is a threshold matter for the court to decide.” (first citing id. at 942, and then citing Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 61 (Tex. 2008))). 54 Jody James Farms, JV v. Altman Grp., Inc., 547 S.W.3d 624 , 631–32 (Tex. 2018); see also RSL Funding, 569 S.W.3d at 121 (“[A]s parties have a right to contract as they see fit, they may agree to arbitral delegation clauses that send gateway issues such as arbitrability to the arbitrator.”). 55 See, e.g., Haddock v. Quinn, 287 S.W.3d 158, 175 (Tex. App.—Fort Worth 2009, pet. denied

2022The default rule for the third question is that arbitrability is a threshold matter for the court to decide.” (first citing First Options, 514 U.S. at 942 , and then citing Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 61 (Tex. 2008))). –11– appellees, without authority, assert that the threshold question of arbitrability necessitates a determination of whether the FAA or the TAA applies.

2021The default rule for the third question is that arbitrability is a threshold matter for the court to decide.” (first citing First Options, 514 U.S. at 942 , and then citing Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 61 (Tex. 2008))). –11– appellees, without authority, assert that the threshold question of arbitrability necessitates a determination of whether the FAA or the TAA applies.

2016Compare City of Georgetown v. Lower Colo. River Auth., 413 S.W.3d 803, 812 (Tex.App.—Austin 2013, pet. dism’d) ("concluding] that the proprietary-governmental dichotomy does apply to contract claims under the common law”), with Wheelabrator, 381 S.W.3d at 603-05 (holding that Tooke created a default presumption of governmental immunity and thus the dichotomy does not apply to contract claims) and Republic Power Partners, L.P. v. City of Lubbock, 424 S.W.3d . 184, 193 (Tex.App.—Amarillo 2014, no pet.) ("Finding ...

2015Id. at 332 . 21 Hale urges this Court to adopt the holding in the City of Georgetown v. Lower Colo. River Auth., 413 S.W.3d 803 (Tex. App.—Austin 2013, pet. dism’d by agr.), to find that the proprietary-governmental dichotomy applies to contract-related claims against a municipality.

2015Tooke, 197 S.W.3d at 331-32 (sovereign immunity in the absence of a clear legislative waiver is the firmly established principle); see also Wheelabrator Air Pollution Control, Inc., 381 S.W.3d at 604 (sovereign immunity is “default rule” after Tooke).

2014In Tooke , the Supreme Court made clear that sovereign immunity is the default rule with respect to all types of claims against municipalities and explicitly stated that “we have never held that this same distinction [proprietary/governmental functions] determines whether immunity from suit is waived for breach of contract claims, and we need not determine that issue here.” Id. at 604 (quoting Tooke, 197 S.W.3d at 343 ).

2015“The rule that courts usually decide issues of arbitrability is a default rule that applies unless the contract provides otherwise.” Ernst & Young LLP v. Martin, 278 S.W.3d 497, 500 (Tex. App.—Houston [14th Dist.] 2009, no pet)(holding that unconscionability issue was for the arbitrator to decide and conditionally granting writ of mandamus)(citing Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002), First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 943 (1995), and Forest Oil Corp. v. McAllen, 268 S.W.3d 51 , 61 n.38 (Tex. 2008))(emphasis added).

2014No claim to original U.S. Government Works. 1 Ernst & Young LLP v. Martin, 278 S.W.3d 497 (2009) the contract provides otherwise. 9 U.S.C.A. § 1 , et seq.

2014See Wheelabrator, 381 S.W.3d at 604 .

2014In Tooke , the Supreme Court made clear that sovereign immunity is the default rule with respect to all types of claims against municipalities and explicitly stated that “we have never held that this same distinction [proprietary/governmental functions] determines whether immunity from suit is waived for breach of contract claims, and we need not determine that issue here.” Id. at 604 (quoting Tooke, 197 S.W.3d at 343 ).