Activist' court? Texas appeals court makes statement in Citrin Holdings

Citrin Holdings, LLC v. Minnis, 2013 Tex. App. LEXIS 5723 (May 9, 2013)

Did a Texas appellate court overreach when it overturned the trial court's Daubert ruling in favor of the plaintiff and, thus, nixed a $28.2 million award? The appellate decision is remarkable for several reasons, not the least being the fact that the plaintiff's credentialed and experienced expert relied on the defendant's own financial projections for his "direct capitalization" method.

It triggered a strongly worded dissent, noting that the issue, evidence, and arguments the reviewing  court considered did not exactly align with what was in front of the trial court in pretrial proceedings. For example, at that stage in the trial, nowhere did either side claim that the defendant's internal projections were incorrect or unreliable. "We cannot fault a trial judge for not considering matters that were not raised for consideration in the trial court," the dissent said, finding the trial court did not abuse its discretion.

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