Most Viewed Decisions

United States Court of Appeals, Fifth Circuit

Heinsohn v. Carabin & Shaw, 15-50300 (5th Cir. 07/26/2016)

Appellant brought this action against appellee, her former employer, alleging violations of the Family Medical Leave Act and the Texas Commission on Human Rights Act. Appellee argues, following a review of firm notes where it appeared appellant missed deadlines prior to her maternity leave, there existed good cause for appellant's termination despite not providing appellant any reason for the firing. Following removal to the federal court, the district court granted appellee's motion for summary judgment. As an initial matter, the fifth circuit held supplement jurisdiction existed as appellant's state law claim was part of the same case or controversy as her now-dismissed federal law claim under FMLA. However, the fifth circuit reversed the district court holding summary judgment was inappropriate as genuine issues of fact existed. To determine whether appellee's nondiscriminatory reason for terminating appellant was legitimate or pretextual, a finder of fact must weigh the evidence. The rejection of appellant's statements as "self-serving" and accepting appellee's was an "approach…inconsistent with fundamental rules governing summary judgment." "By choosing which testimony to credit and which to discard, '[a] court improperly 'weigh[s] the evidence' and resolve[s] disputed issues in favor of the moving party.'" Doing so was tantamount to making a credibility determination at the summary judgment stage and therefore required reversal and remand. Heinsohn v. Carabin & Shaw, P.C., Fifth Circuit, Case No.: 15-50300, 07/26/2016

15-50300
WIENER, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

El Paso Electric Company v. Federal Energy Regulatory Commission, 14-60822 (5th Cir. 08/08/2016)

Petitioner appealed from three decisions in which respondent reviewed and required revisions to certain compliance filings that petitioner and other utilities filed with respondent and pursuant to a previous order. The order regulated regional transmission planning and cost allocation by public utilities, also known as "jurisdictional utilities." While the vast majority of petitioner's challenges to respondent's actions through these compliance orders fail, the fifth circuit concluded respondent acted arbitrarily and capriciously in its mandates regarding the role of non-jurisdictional utilities in cost allocation and regional planning in the WestConnect region. The fifth circuit held respondent's compliance orders fail to adequately explain how the mandates in those orders do not ensure unjust and unreasonable rates as between jurisdictional and non-jurisdictional utilities in the region. The fifth circuit noted the compliance orders did not provide a reasoned explanation for why the non-jurisdictional utilities have incentive or obligation to participate in binding cost allocation when they can get many of the same benefits at the jurisdictional utilities expense. Therefore, the fifth circuit granted the petition for review and remanded the case for further explanation. The fifth circuit declined review of the remaining issues as the challenges were barred as impermissible collateral attacks. El Paso Electric Company v. Federal Energy Regulatory Commission, Fifth Circuit, Case No.: 14-60822, 08/08/2016

14-60822
HAYNES, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Brinsdon v. McAllen Independent Sch Dist,15-40160 (5th Cir. 08/09/2016)

When appellant was a sophomore at appellee high school, she was required to participate in what appellees' claim was a mock performance of the Mexican Pledge of Allegiance as an assignment for her Spanish class. She refused and filed suit alleging violation of her constitutional rights. The district court entered summary judgment for appellees and rendered judgment in its favor. The court of appeals affirmed holding appellant's graduation mooted her equitable claims and she did not qualify for the "capable of repetition yet, evading review" exception as there was no reasonable expectation that she would be subject to the same action again. Further, appellant failed to demonstrate the existence of an official policy or that appellees had knowledge of the assignment; judgment as a matter of law was proper for appellees on municipal liability for any constitutional violation that may have arisen from the assignment or subsequent actions. Finally, appellant failed to establish an exception to qualified immunity whereby appellee violated a statutory or constitutional right that was clearly established at the time of the challenged conduct. Accordingly, the district court judgment was affirmed. Brinsdon v. McAllen Independent School District, Fifth Circuit, Case No.: 15-40160, 08/09/2016

15-40160
LESLIE H. SOUTHWICK, CIRCUIT JUDGE

Court of Appeals of Texas, Third District

Gause v. Gause, 03-13-00768-CV (TexApp Dist 07/29/2016)

In 1945, decedent purchased a 105-acre tract of land consisting of two parcels; the property is the principal asset of the trust in question. The following year, decedent married appellant and produced seven children, including appellee. Decedent specifically omitted three of his children from his will, which incorporated his trust; following his death, the will and trust were read and subsequently "lost or destroyed." Appellant, during a period of poor health, conveyed the property to one of the children; she later received a judgment cancelling the deed. The present suit was filed upon discovery that appellant conveyed the property to another son. On appeal, appellant claimed the district court erred in determining the existence and terms of the trust, a lost document, based upon parole evidence. The court of appeals affirmed holding appellant provided sworn proof of the trust in her prior deed-cancellation suit; judicial estoppel prevents a party who has made a sworn statement in a prior judicial proceeding from maintaining a contrary position in a subsequent proceeding. Further, there was no special exception to the court's ruling, despite a previous judge denying appellee's motion for summary judgment, as the current order granting said judgment was not based on extraneous evidence. Accordingly, appellant was barred from asserting summary judgment proof inconsistent with her proof in the prior deed-cancellation suit establishing the existence and terms of the trust; the judgment of the trial court was affirmed. Gause v. Gause, Austin Court of Appeals, Case No.: 03-13-00768-CV, 07/29/2016

03-13-00768-CV
BOB E. SHANNON, JUSTICE

Court of Appeals of Texas, Fourteenth

In re First Transit Inc., 14-16-00058-CV (TexApp Dist 07/14/2016)

This action arose from a December 16, 2012 accident on Interstate 45 North at Main Street in Houston in which Jose Caballero was killed after being struck and dragged over 100 feet by a METRO bus operated by relator and which was driven by its employee. Decedent's estate brought suit against relator under the Texas wrongful-death and survival statutes. Following a motion to exclude, the trial court ordered that relators were prohibited from offering evidence from its accident reconstruction expert. Relators petitioned for writ of mandamus to compel the presiding judge to vacate her sanctions order that prohibited the expert from testifying at trial. The court of appeals granted the petition holding that under the relevant case law and the circumstances of this case, the trial court's exclusion of all of the expert's testimony equated to a "death-penalty" sanction. The court of appeals noted that due to the complexity of the accident, this was precisely the kind of case where the testimony of an accident reconstructionist would be helpful and perhaps essential to relators' defense. Although relators failed to timely produce some documents supporting a sanction order, the court of appeals held the complete prohibition of the expert testimony did not fit the transgression. Accordingly, because the trial court abused its discretion for not considering a lesser sanction, the court of appeals conditionally granted the petition for writ of mandamus. In re First Transit Inc., Houston 14th Court of Appeals, Case No.: 14-16-00058-CV, 07/14/2016

14-16-00058-CV
JOHN DONOVAN JUSTICE

United States Court of Appeals, Fifth Circuit

State Of Texas v. United States Environmental Protection Agency, 16-60118 (5th Cir. 07/15/2016)

The Clean Air Act was "an experiment in cooperative federalism." Michigan v. EPA, 268 F.3d 1075, 1083 (D.C. Cir. 2001) It "establishes a comprehensive program for controlling and improving the nation's air quality through state and federal regulation." BCCA Appeal Grp. V. EPA, 355 F.3d 817, 821-22 (5th Circ. 2003) The rulemaking under challenge here concerned visibility in two national parks and one federal wildlife refuge. Petitioners challenged Respondent's action disapproving Oklahoma's and Texas's plans for controlling regional haze and imposing EPA's own plans instead. Petitioners contend that Respondents acted outside its statutory authority and sought a stay pending review of the rule on the merits. Respondents moved to dismiss or transfer the petition asserting the court lacked jurisdiction over the petition. The fifth circuit held the Clean Air Act gave jurisdiction over petitions for review to the court of appeals generally and the Act's forum selection clause designated the regional circuit as the appropriate venue. Additionally, the fifth circuit held because Petitioners demonstrated a strong likelihood of success on the merits, because they are likely to suffer irreparable injury in the absence of a stay while Respondents have not shown similar injury from the issuance of a stay, and because the public interest weighed in favor of a stay, it granted the motion for stay pending resolution of the petitions for review on the merits. State of Texas v. United States Environmental Protection Agency, Fifth Circuit, Case No.: 16-60118, 07/15/2016

16-60118
JENNIFER WALKER ELROD, CIRCUIT JUDGE

Court of Appeals of Texas, Sixth Appellate District

Dudley Construction, Ltd. v. ACT Pipe & Supply, Inc., 06-15-00045-CV (TexApp Dist 07/14/2016)

Appellee assisted appellant on two water and sewer improvement projects in Texas' Bryan/College Station area. After engaging in some give and take over the type of pipe fittings that were to be supplied, the parties ended up disputing the costs of materials provided. Appellee sued and was awarded a judgment notwithstanding the verdict, including damages and attorney fees. On appeal, appellant argued the trial court erred in granting a JNOV on appellee's sworn account and trust-fund claims and by awarding attorney fees when the evidence was legally and factually insufficient. The court of appeals affirmed in part and reversed in part. The court of appeals held that portion of the trial court's judgment that appellee recover on its sworn-account claim, trust-fund and payment-bond claims and recovery of attorney fees was reversed. However, the portion of the trial court's judgment permitting recovery on its sworn-account, trust-fund, and payment-bond claims was affirmed. The court of appeals concluded the evidence was sufficient to support the no-recovery jury findings, but fact issues remained as to appellee's trust-fund claim. Additionally, the payment-bond claim and attorney fees must be remanded but all other dispositions by the trial court should stand. Dudley Construction, Ltd. v. ACT Pipe & Supply, Inc., Texarkana Court of Appeals, Case No.: 06-15-00045-CV, 07/14/2016

06-15-00045-CV
RALPH K. BURGESS JUSTICE

United States Court of Appeals, Fifth Circuit

Kimberly Doe, et al v. USA, 15-50331 (5th Cir. 07/27/2016)

Appellants are eight female "aliens who were apprehended by U.S. Immigration and Customs Enforcement." Pending a determination of their immigration status, appellants were housed in a detention center. Appellants alleged that they were sexually assaulted during their transportation from the detention center to the airport or bus station. Appellants filed lawsuits alleging claims under 42 U.S.C. §1983 and the Federal Tort Claims Act. The district court ruled in appellees favor on various grounds; the fifth circuit affirmed in part and reversed in part. The fifth circuit affirmed dismissal of two appellees finding that Williamson County's involvement in running the detention center was minimal. The fifth circuit stated under §1983, local governments are responsible only for their own legal acts. Further, the fifth circuit held appellants failed to plead that ICE officials were aware of facts from which the inference could be drawn that known violations of the transport policy created a "substantial risk" that detainees would be sexually assaulted. As such, dismissal of appellants FTCA claims against the United States were properly dismissed. Doe v. United States of America, Fifth Circuit, Case No.: 15-50331, 07/27/2016

15-50331
LESLIE H. SOUTHWICK, CIRCUIT JUDGE

Court of Appeals of Texas, Fourteenth

Fawcett v. Grosu, 14-15-00542 (TexApp Dist 07/07/2016)

All parties to this appeal were members of Gray Masonic Lodge 329, a fraternal organization in Houston, Texas. Appellants signed a document entitled "Charges of Masonic Disciplinary Violations," charging appellee with violating several Masonic rules. Following a finding dismissing any disciplinary action, appellee filed suit against those who signed the charging document and asserted claims for defamation and invasion of privacy. The trial court denied appellants motion to dismiss pursuant to Tex. Civ. Prac. & Rem. Code §27 and awarded appellee attorney fees. Appellants timely filed a notice of accelerated appeal. The court of appeals reversed the portion of the trial court's order denying appellants' TCPA motion to dismiss appellee's claim of defamation based on allegations of racism and rendered judgment dismissing that claim. Specifically, the court of appeals held appellee failed to meet his evidentiary burden on defamation claims based on racism as his allegations were based on conclusory evidence with no clear or specific prima facie evidence. The court of appeals affirmed the remaining judgment of the trial court holding appellee established a prima facie case through clear and specific evidence. Fawcett v. Grosu, Houston 1st Court of Appeals, Case No.: 14-15-00542-CV, 07/07/2016

14-15-00542
MARC W. BROWN JUSTICE

United States Court of Appeals, Fifth Circuit

USA v. Donald Scribner, II, 14-11031 (5th Cir. 08/01/2016)

Appellant filed a federal habeas petition under 28 U.S.C. §2255, seeking to vacate his conviction for possession with intent to distribute 50 or more marijuana plants. Appellant asserted ineffective trial assistance arguing his trial counsel failed to notify him of a sentencing enhancement that ultimately increased his sentence. Appellant argued that, but for this failure, he would have accepted a plea agreement with the government and received a reduced sentence. A magistrate judge held an evidentiary hearing and issued a report recommending relief; the district court declined to accept the recommendation and denied appellants' §2255 petition. The fifth circuit reversed holding the district court erred when it rejected the magistrate's credibility finding, made after an evidentiary hearing, without holding its own evidentiary hearing. The fifth circuit noted that in a situation involving the constitutional rights of a criminal defendant, the district judge should not enter an order inconsistent with the credibility choices made by the magistrate without personally hearing the live testimony of the witnesses whose testimony is determinative. Louis v. Blackburn, 630 F.2d 1105, 1109 (5th Circ. 1980) This is because – under the Due Process Clause – in order to adequately determine the credibility of a witness as to such constitutional issues, the fact finder must observe the witness. Therefore, the district court's judgment was vacated. United States of America v. Donald Raymond Scribner, II, Fifth Circuit, Case No.: 14-11031, 08/01/2016

14-11031