manner claim in Texas

2026Id. at 546; see also Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984) (“Where factual allegations in a movant’s affidavits are not controverted, a conscious indifference question must be determined in the same manner as a claim of meritorious defense.

2022See Milestone Operating, 388 S.W.3d at 310 ; see also Strackbein, 671 S.W.2d at 38–39 (“Where factual allegations in a [new trial] movant’s affidavits are not controverted, a conscious indifference question must be determined in the same manner as a claim of meritorious defense.”).

2014Ex parte Walker, 350 S.W.3d 417, 419 (Tex. App.— Eastland 2011, pet. ref’d) (citing Ex parte Chapman, 601 S.W.2d 380 , 382–83 (Tex. Crim.

2012Ex parte Chapman, 601 S.W.2d 380, 383 (Tex. Crim.

2023P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017); Moncrief Oil Int’l, Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013). “[I]mplied findings may be challenged for legal and factual sufficiency in the same manner as a challenge to express findings of fact or jury findings.” Silverio v. Silverio, 625 S.W.3d 680 , 683 (Tex. App.—El Paso 2021, no pet.).

2022P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017). “[I]mplied findings may be challenged for legal and factual sufficiency in the same manner as a challenge to express findings of fact or jury findings.” Silverio v. Silverio, 625 S.W.3d 680 , 683 (Tex. App.—El Paso 2021, no pet.).

2018We acknowledged this reasoning in Castañeda , noting that the "concurring Justices in Stoker agreed that the manner in which a claim is investigated must be the proximate cause of damages before there could be a recovery." 988 S.W.2d at 198 (citing Stoker , 903 S.W.2d at 345 (Spector, J., concurring) ). 15 We held that, in the absence of a finding that the insurer had breached the policy, the insured could not recover any damages because none of the insurer's alleged statutory violations "was the producing cause of any damage separate and apart from those that would have resulted from a wrongf

2018We acknowledged this reasoning in Castañeda , noting that the "concurring Justices in Stoker agreed that the manner in which a claim is investigated must be the proximate cause of damages before there could be a recovery." 988 S.W.2d at 198 (citing Stoker , 903 S.W.2d at 345 (Spector, J., concurring) ). 15 We held that, in the absence of a finding that the insurer had breached the policy, the insured could not recover any damages because none of the insurer's alleged statutory violations "was the producing cause of any damage separate and apart from those that would have resulted from a wrongf

2018See, e.g., JAW the Pointe, 460 S.W.3d at 602 .

2017See, e.g., JAW the Pointe, 460 S.W.3d at 602 .

2015In Sonny Arnold, Inc. v. Sentry Savings Association, 633 S.W.2d 811, 816 (Tex.1982), the court was merely called upon to decide whether an optional acceleration clause, as executed, was valid and enforceable but in that case there was no allegation that there was anything wrongful or improper in the manner in which the clause was enforced.

1984In Sonny Arnold, Inc. v. Sentry Savings Association, 633 S.W.2d 811, 816 (Tex.1982), the court was merely called upon to decide whether an optional acceleration clause, as executed, was valid and enforceable but in that case there was no allegation that there was anything wrongful or improper in the manner in which the clause was enforced.

2015In Crestview, Ltd. v. Foremost Insurance Company, 621 S.W.2d 816, 820, 823 (Tex.Civ.App.-- Austin 1981, writ ref'd n.r.e.), the alleged wrongdoer was found not to have enforced the due-on-sale clause in an unreasonable, inequitable, unjust or oppressive manner.

1984In Crestview, Ltd. v. Foremost Insurance Company, 621 S.W.2d 816, 820, 823 (Tex.Civ.App.—Austin 1981, writ ref’d n.r.e.), the alleged wrongdoer was found not to have enforced the due-on-sale clause in an unreasonable, inequitable, unjust or oppressive manner.

2007Div. v. Evans , 889 S.W.2d 266, 270 (Tex. 1994) (whether defendant set up meritorious defense is determined by facts alleged in defendant's motion and affidavits, "regardless of whether those facts are controverted"); Ivy v. Carrell , 407 S.W.2d 212, 214 (Tex. 1966) (if defendant alleges facts that would constitute defense to plaintiff's claims and supports allegation with affidavit or other evidence, "it is improper to try the defensive issues made by the motion or the pleadings" and trial court should not consider any controverting affidavits or testimony offered by plaintiff); see Strackbei

2007Div. v. Evans, 889 S.W.2d 266, 270 (Tex. 1994) (whether defendant set up meritorious defense is determined by facts alleged in defendant’s motion and affidavits, “regardless of whether those facts are controverted”); Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966) (if defendant alleges facts that would constitute defense to plaintiff’s claims and supports allegation with affidavit or other evidence, “it is improper to try the defensive issues made by the motion or the pleadings” and trial court should not consider any controverting affidavits or testimony offered by plaintiff); see Strackbein

2007Rule 243; see New, 3 S.W.3d at 516-17 (affidavits are sufficient evidence to support unliquidat-ed damages award).

2000Rule 243; see New, 3 S.W.3d at 516-17 (affidavits are sufficient evidence to support unliquidated damages award).

2007Div. v. Evans , 889 S.W.2d 266, 269 (Tex. 1994); see also Strackbein , 671 S.W.2d at 38 ("Where factual allegations in a movant's affidavit are not controverted, a conscious indifference question must be determined in the same manner as a claim of meritorious defense.").

2007Div. v. Evans , 889 S.W.2d 266, 270 (Tex. 1994) (whether defendant set up meritorious defense is determined by facts alleged in defendant's motion and affidavits, "regardless of whether those facts are controverted"); Ivy v. Carrell , 407 S.W.2d 212, 214 (Tex. 1966) (if defendant alleges facts that would constitute defense to plaintiff's claims and supports allegation with affidavit or other evidence, "it is improper to try the defensive issues made by the motion or the pleadings" and trial court should not consider any controverting affidavits or testimony offered by plaintiff); see Strackbei

1992See Wyle v. State, 777 S.W.2d 709, 715 (Tex.Crim.App.1989).

1992See Wyle v. State, 777 S.W.2d 709 . 715 (Tex.Crim.App.1989). 3 .

2016Id. at 676 .

2015Co. v. Conoco, Inc., 52 S.W.3d 671, 676 (Tex. 2000) (“We agree with the courts below that there may be circumstances under which a party who was induced to enter a contract by fraud may ratify that contract in such a manner that a claim for damages is foreclosed.”); Thomson Oil Royalty, LLC v. Graham, 351 S.W.3d 162, 166 (Tex. App.—Tyler 2011, no pet.) (“A party that accepts changed terms of a contract is deemed to have made its own decision that *38 those terms are just; if it had thought otherwise, it should have resisted.”).

2023See Palacios, 46 S.W.3d at 878–79; Bogar, 257 S.W.3d at 364 . 3 From this, Appellees contend that Fuller held a supervisory position over the LVN and MA who administered the injection.

2010Palacios, 46 S.W.3d at 878 .

2024According to the motion, the area on Appellant that was tested for GSR was not properly preserved: Prior to the “dabbing” of the defendant’s hands he was 1) handled by multiple officers; 2) the defendant was placed in handcuffs by an officer that had been handling a firearm in the minutes before he was manacled; 3) the defendant was placed in a patrol vehicle with his hands behind his back; 4) at no time were the defendant’s hands “bagged” to preserve any evidence and to avoid transference; 5) the defendant’s clothing was not tested nor preserved in a satisfactory manner; 6) the defendant’s fa

1999Since appellant does not complain of the admission in evidence of the result of the breath test, we need not consider any evidence concerning the function of the Intox-ilyzer, the qualifications of the officer administering the test, or the manner in which the test was performed. 1 According to Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992), we need consider only evidence presented outside the presence of the jury concerning the admissibility of McDougall’s testimony relating to his opinion of appellant’s BAC at the time of the offense.

2015In reaching this conclusion, the Court demonstrated the manner in which waiver could occur by distinguishing the situation in Wilson from those in two courts of appeals opinions, stating that in those cases “the defendant admitted not simply that process was received, but that it was ‘duly served.’ ” Id. (citing First Nat’l Bank v. Peterson, 709 S.W.2d 276, 280 (Tex.App.—Houston [14th Dist.] 1986, writ ref d n.r.e.) and Hurst v. A.R.A.

2002In recognizing that a defective service complaint could be waived, the Wilson court cited two cases to demonstrate the manner in which waiver could occur: First Nat’l Bank v. Peterson, 709 S.W.2d 276 (Tex.App.-Houston [14th Dist.] 1986, writ ref'd n.r.e.) and Hurst v. A.R.A.

2025Children of the Kingdom, 674 S.W.3d at 416 (citing Creaven v. Creaven, 551 S.W.3d 865, 870 (Tex. App.— Houston [14th Dist.] 2018, no pet.)).

2025Free whole” to “discern legislative intent,” ante at 802 (quoting people can tell the difference between laws that justly prohibit Cadena Comercial USA Corp. v. Tex. Alcoholic Beverage harmful conduct based on our shared sense of right and Comm'n, 518 S.W.3d 318, 325 (Tex. 2017)), the Court holds wrong and laws that outlaw otherwise innocuous behavior that the Board may discipline a doctor who commits an illegal in pursuit of the government's innumerable regulatory goals. act connected with the practice of medicine “only if the act The notion that the Texas Legislature considers every minute i

2024In re Strickland, 358 S.W.3d 818, 820 (Tex. App.—Fort Worth 2012, orig. proceeding.).

2024Rickels v. State, 202 S.W.3d 759, 763 (Tex. Crim.

2023P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017); Moncrief Oil Int’l, Inc. v. OAO Gazprom, 414 S.W.3d 142, 150 (Tex. 2013). “[I]mplied findings may be challenged for legal and factual sufficiency in the same manner as a challenge to express findings of fact or jury findings.” Silverio v. Silverio, 625 S.W.3d 680 , 683 (Tex. App.—El Paso 2021, no pet.).

2022See Milestone Operating, 388 S.W.3d at 310 ; see also Strackbein, 671 S.W.2d at 38–39 (“Where factual allegations in a [new trial] movant’s affidavits are not controverted, a conscious indifference question must be determined in the same manner as a claim of meritorious defense.”).

2017But “[t]his Court has held that the legal sufficiency of a no-evidence motion for summary judgment may be challenged for the first time on appeal in the same manner as a challenge to the legal sufficiency of a traditional motion for summary judgment.” Jose Fuentes Co., v. Alfaro, 418 S.W.3d 280, 287 (Tex. App.—Dallas 2013, pet. denied) (en banc).

2016Although the Court in Schmerber based its determination that the blood draw was performed in a reasonable manner in part on the fact that it was performed by a doctor in a hospital setting, the Court’s overriding concern about the manner in which the test was performed focused on the effect of the intrusion upon the individual, not the reliability of the test results. 384 U.S. at 771-72 , 86 S.Ct. at 1836 ; see Winston, 470 U.S. at 760 , 105 S.Ct. at 1616 ; United States v. Fowlkes, 804 F.3d 954, 962-66 (9th Cir.2015) (op. on reh’g) (discussing Schmerber in the context of a body cavity search

2016Although the Court in Schmerber based its determination that the blood draw was performed in a reasonable manner in part on the fact that it was performed by a doctor in a hospital setting, the Court’s overriding concern about the manner in which the test was performed focused on the effect of the intrusion upon the individual, not the reliability of the test results. 384 U.S. at 771-72 , 86 S.Ct. at 1836 ; see Winston, 470 U.S. at 760 , 105 S.Ct. at 1616 ; United States v. Fowlkes, 804 F.3d 954, 962-66 (9th Cir.2015) (op. on reh’g) (discussing Schmerber in the context of a body cavity search

2016Although the Court in Schmerber based its determination that the blood draw was performed in a reasonable manner in part on the fact that it was performed by a doctor in a hospital setting, the Court’s overriding concern about the manner in which the test was performed focused on the effect of the intrusion upon the individual, not the reliability of the test results. 384 U.S. at 771-72 , 86 S.Ct. at 1836 ; see Winston, 470 U.S. at 760 , 105 S.Ct. at 1616 ; United States v. Fowlkes, 804 F.3d 954, 962-66 (9th Cir.2015) (op. on reh’g) (discussing Schmerber in the context of a body cavity search