Most Viewed Decisions

United States Court of Appeals, Fifth Circuit

McManaway v. KBR, 15-20641 (5th Cir. 03/27/2017)

This toxic tort case presented the question of whether appellants' injuries were caused by the alleged hexavalent chromium contamination at an industrial water injection facility in Iraq. Appellants were former American and British soldiers assigned to protect employees at the facility; appellees were tasked with restoring the facility. Appellants alleged that appellees did not responsibly handle the contamination at the facility, leading appellants to suffer injuries stemming from such exposure. The district court granted appellee's motion for summary judgment dismissing appellants' claims because of their inability to prove that hexavalent chromium caused their injuries. On appeal, appellants argued that they adduced sufficient evidence of causation to survive summary judgment. In opposition, appellees argued that resolution of the case necessarily calls into question non-justiciable military decisions and that appellants' claims were barred by the political question doctrine. Initially, the court held appellants' claims were directed at private parties, and therefore the political question doctrine was inapplicable. However, the court affirmed dismissal holding that because appellants relied upon epidemiological studies, they failed to demonstrate a statistically significant doubling of the risk of developing their alleged injuries. Because none of the epidemiological evidence met the reliability threshold, it cannot be considered competent summary judgment evidence establishing general causation. Accordingly, the court affirmed summary judgment. McManaway v. KBR, Inc., Fifth Circuit, Case No.: 15-20641, 03/27/2017

15-20641
JAMES L. DENNIS, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Ocwen Loan v. Berry, 16-10604 (5th Cir. 03/29/2017)

In 2007, appellant obtained a loan secured by a lien on his home which was eventually acquired by appellee. In 2010, a notice of default and intent to accelerate was sent to appellant following missed payments. Upon failure to cure the default, appellee filed its original complaint seeking a judgment allowing it to foreclose on the property. Appellant filed his answer, which included as an affirmative defense the allegation that appellee's security interest was unenforceable because there were multiple violations of Article 16, §50(a)(6) of the Texas Constitution. In its amended complaint, appellee added an action for equitable subrogation and asserted appellant's affirmative defense was barred by the four-year statute of limitations. Appellee moved for, and was granted, summary judgment finding that appellee had cited to evidence in support of its assertions that it was the owner of the loan and had followed the proper procedures to foreclose on the property. The district court further held that the alleged violations of the Texas Constitution were barred by the four-year state of limitations, rejecting appellant's argument that he could rely on §16.069 to avoid the statute of limitations. On appeal, the court reversed holding, under the newly decided Wood case, no statute of limitations applied to a borrower's allegations of violations of §50(a)(6) of the Texas Constitution in a quiet title action. Therefore, the district court erred in finding that appellant's affirmative defenses and counterclaim alleging violations of §50(a)(6) were barred by a four-year statute of limitations. Ocwen Loan Servicing, L.L.C. v. Berry, Fifth Circuit, Case No.: 16-10604, 03/29/2017

16-10604
KING, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

USA v. Sanjar, 15-20025 (5th Cir. 03/27/2017)

A jury convicted the six appellants of an alleged scheme to defraud Medicare as well as paying and receiving kickbacks for referrals. Based on varying assessments of each defendant's role in the offense, the district court sentenced them to terms of imprisonment ranging from 24 to 148 months. On appeal, they argued defects throughout the investigation and prosecution of the case, beginning with the search of the medical office, running through the trial, and ending with the financial obligations imposed as part of their sentence. The government also appealed objecting to the district court's decision to offset appellants' restitution liability with any amounts recovered through forfeiture. The court affirmed the convictions of the defendants holding the affidavit evidence supported the warrant authorizing seizure of patient files and the grand jury indictment did not include duplicative counts. Further, the court held the challenged testimony satisfied the requirements of lay witnesses who may offer opinion testimony as it was rationally based on their perception, helpful to determining a fact in issue, and not based on specialized knowledge. Finally, the court found the district court did not err in its jury charge and the evidence was legally sufficient to support the defendants' convictions. However, the court reversed the offset of the restitution award by forfeited funds concluding restitution and criminal forfeiture were mandatory features of criminal sentencing that a district court did not have authority to offset. U.S. v. Mansour Sanjar, Fifth Circuit, Case No.: 15-20025, 03/27/2017

15-20025
GREGG COSTA, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Iruegas-Valdez v. Yates, 15-60532 (5th Cir. 03/24/2017)

Iruegas-Valdez entered the United States illegally and was captured by the Department of Homeland Security. After serving his sentence, he claimed asylum on the basis that, after two of his cousins became DEA informants, their former employer (the Zetas drug cartel) retaliated by killing several members of his family in Mexico. Iruegas-Valdez offered newspaper accounts of the massacres, along with his mother's testimony. The asylum officer found him to be "credible" and to have a reasonable fear of persecution in Mexico. The immigration judge, however, concluded that Iruegas-Valdez's testimony was not credible. The Board of Immigration Appeals affirmed, holding that Iruegas-Valdez did not show that the immigration judge's credibility determination was clearly erroneous. On appeal, the court held that, although it could not review the credibility determination, it was error for the immigration judge to not consider the other evidence adduced by Iruegas-Valdez, including his mother's testimony, the newspaper articles and evidence that the governor and police were complicit in the attacks upon his family members. It remanded the case for consideration of this evidence. Iruegas-Valdez v. Yates, Fifth Circuit, No. 15-60532, 3/24/17

15-60532
EDITH BROWN CLEMENT, CIRCUIT JUDGE

Court of Appeals of Texas, First District

Pajooh v. Royal West, 01-16-00185-CV (TexApp Dist 03/30/2017)

Appellants Daniel Pajooh and U.S. Capital Investments, which was 99 percent owned by Pajooh, entered a real-estate deal with Royal West Investments. Royal West eventually sued and won a $352,000 judgment plus $165,000 in attorney's fees. When attempts to collect were unsuccessful, Royal Wet obtained a charging order against U.S. Capital and a separate charging order against County Investment, a subsidiary jointly owned by appellants that held title to $4 million worth of real and personal property, including the car the appellant drove. The court later appointed a receiver over appellants' assets, including their interests in County Investment and Pajooh's interest in U.S. Capital. An appeal followed, on grounds that the only appropriate remedy was a charging order and that Royal West failed to show it was entitled to a receiver. The court found that a charging order is the exclusive remedy to satisfy a debt from a debtor's partnership interest, such as appellants' interests in County Investment and Pajooh's interest in U.S. Capital, under Tex. Bus. Orgs. Code §153.256. The court rejected Royal West's argument that the policy behind charging orders – to protect non-debtor members of a partnership – does not apply here, along with related arguments, because the plain text of the statute controls. The court thus found the trial court erred in appointing a receiver to the extent that the order extends to County Investment and to Pajooh's interest in U.S. Capital. However, the court overruled appellants' second issue, claiming Royal West was not entitled to a receiver because the charging order is the exclusive remedy. The court found that the receiver was not a separate remedy but rather a means of putting the charging order into effect. The court affirmed the receivership order on Pajooh and U.S. Capital, but reversed it as to County Investment and Pajooh's interest in U.S. Capital, and remanded the case. Pajooh v. Royal West, Austin Court of Appeals, Case No. 01-16-00185-CV, 3/30/17.

01-16-00185-CV
MICHAEL MASSENGALE, JUSTICE

Court of Appeals of Texas, Third District

LMV-AL v. Texas Department of Aging, 03-16-00222-CV (TexApp Dist 04/06/2017)

LMV-AL Ventures sought approval for a 43-room assisted-living home, with plans that called for double occupancy in 30 of the rooms. All the rooms had the same layout. The Texas Department of Aging and Disability Services ruled that the rooms met the square-footage requirements for single occupancy under Tex. Admin. Code §92.62 but not double occupancy, and approved the home for only 43 beds instead of the requested 73. The parties disputed whether to include floor space underneath a "notch" below the ceiling for an HVAC unit. LMV sued, claiming DADS exceeded its authority, improperly promulgated a rule, committed an ultra vires act, and violated LMV's due process rights. Both sides moved for summary judgment and DADS also filed a plea to the jurisdiction. The trial court granted summary judgment for DADS and both sides appealed, LMV challenging the ruling and DADS challenging the implied denial of the plea to jurisdiction. The court found that agencies generally enjoy sovereign immunity from suits but immunity is waived when a plaintiff challenges the applicability of a rule. The court also found that LMV's argument about including extra square footage challenged the rule's application, rather than its general applicability. "LMV sought a declaration of how Rule 92.62 should be applied to its facility, not whether the rule applied to the facility," the court stated. Thus, LMV did not invoke the waiver, and the trial court lacked jurisdiction to hear most of the claims, the court held. The court also found that DADS acted under the plain language of the rule and therefore did not promulgate a new rule, and that LMV failed to allege an ultra vires act. Lastly, the court found that while sovereign immunity does not protect DADS from a due-process claim, LMV failed to specify its property rights and that an expectation of double-occupancy rooms does not rise to the level of a vested property right. The court reversed summary judgment for DADS on most claims and rendered judgment dismissing the claims for lack of jurisdiction instead. The court affirmed the remainder of the order granting summary judgment for DADS. LMV-AL v. Texas Department of Aging and Disability Services, Austin Court of Appeals, Case No. 03-16-00222-CV, 4/6/17.

03-16-00222-CV
DAVID PURYEAR, JUSTICE

Supreme Court of Texas

USAA Texas v. Menchaca, 14-0721 (TexApp Dist 04/07/2017)

Menchaca sued USAA after it failed to pay for alleged property damage. The jury found that USAA complied with the terms of its insurance policy, but also found that USAA engaged in deceptive practices made unlawful under the Texas Insurance Code, and awarded Menchaca damages. USAA argued that the first finding meant it could not be held liable for damages; Menchaca argued that the second finding rendered USAA liable. The trial court agreed with Menchaca and awarded damages. An intermediate appellate court affirmed. After acknowledging confusion in its prior precedents, the court announced five interrelated rules: (1) an insured cannot recover policy benefits as damages for an insurer's statutory violation if the policy does not provide the insured a right to receive those benefits; (2) an insured who establishes a right to receive benefits under the insurance policy can recover those benefits as actual damages under the Insurance Code if the insurer's statutory violation causes the loss of the benefits; (3) even if the insured cannot establish a present contractual right to policy benefits, the insured can recover benefits as actual damages under the Insurance Code if the insurer's statutory violation caused the insured to lose that contractual right; (4) if an insurer's statutory violation causes an injury independent of the loss of policy benefits, the insured may recover damages for that injury even if the policy does not grant the insured a right to benefits; and (5) an insured cannot recover any damages based on an insurer's statutory violation if the insured had no right to receive benefits under the policy and sustained no injury independent of a right to benefits. The court held that the trial court made errors based upon the prior confusion in the law, and remanded the case for a new trial. USAA Texas Lloyds Company v. Menchaca, In the Supreme Court of Texas, No. 14-0721, 4/7/17

14-0721
JEFFREY S. BOYD, JUSTICE

Court of Appeals of Texas, Fifth

Wilson v. Shamoun & Norman, 05-15-01448-CV (TexApp Dist 04/13/2017)

Appellants Charles Wilson and his employer, law firm Goranson Bain, represented Robert Schwartz in a divorce case. Schwartz' previous counsel, Shamoun & Norman, had withdrawn from the case and later sued Schwartz in a separate court for failing to pay their fees. Schwartz moved to transfer the case to the court hearing his divorce case, a motion the new court denied in an order that included the language "all relief requested in this case and not expressly granted herein is denied." Appellants requested Shamoun & Norman to suspend Schwartz's deposition in the nonpayment case, and when they refused, appellants suspended the deposition after Schwartz was sworn in. The trial court found appellants liable for abusing the deposition process and ordered them to pay Shamooun & Norman $1,837 in attorney's fees related to the deposition. On appeal, appellants argued the denial of transfer constituted a final order and the court lost jurisdiction to order the sanction of attorney's fees. The appeals court found that the trial court's first order was final only on the issue of transferring the case. It also found that a so-called "mother hubbard" clause, such as the "all relief" clause in the order, does not indicate finality in the absence of a full trial. The court further found that the order lacked language expressly clarifying that it was a final order, and that it was irrelevant that the "mother hubbard" clause was set off as its own paragraph. Based on these findings, the court overruled most of appellants' issues. The court also overruled appellants' argument that the trial court was required to make a finding of bad faith against them. The court ruled that a bad faith finding is required only in extreme cases, and the $1,837 judgment was not severe enough to trigger the need for such a finding. The court affirmed the trial court's judgment ordering sanctions. Wilson v. Shamoun & Norman, Dallas Court of Appeals, Case No. 05-15-01448-CV, 4/13/17.

05-15-01448-CV
DAVID EVANS, JUSTICE

Court of Appeals of Texas, Fifth

In Re M.W.M., Jr., 05-16-00797-CV (TexApp Dist 04/05/2017)

Father petitioned the court for a writ of mandamus related to a child custody dispute. Specifically, the father argued that the trial court lacked to the ability to remove an arbitrator that was contractually agreed to by the parties. Based on mother's arrest for assault, and use of drugs, the father began having safety concerns for his child. Eventually, father filed an emergency motion for the mother's rights to possession be suspended until the arbitrator found that the child was safe in mother's possession. The arbitrator granted that motion and signed an arbitration order. Mother then sued in trial court alleging that the arbitrator had abused his authority by signing the arbitration order and needed to be removed. Then, the trial court removed the arbitrator and appointed a new one at mother's request. The court found that the family code had no mechanism to replace an arbitrator and that rules of contract law should be applied. In looking at the arbitration agreement as a contract, the court found that the trial court abused its discretion in going outside the four corners of their contract and ordered that the first arbitrator originally agreed to by the parties be reappointed. In Re M.W.M., Jr., A Minor Child, Case No. 05-16-00797-CV, 04/05/17

05-16-00797-CV
DAVID J. SCHENCK JUSTICE

Court of Appeals of Texas, Ninth District

Collins v. State of Texas, 09-15-00089-CR (TexApp Dist 03/29/2017)

Defendant appealed murder conviction for acts that he committed while he was a juvenile. Defendant contended that his constitutional rights were violated when he was tried for the violation as an adult. Specifically, defendant asserted that he was subjected to ex post facto rules regarding the transfer of juveniles to be tried in adult court, which lowered the age requirement to include his age at the time of the offense. Defendant dragged victim, an eight-year-old boy, into the woods and set him on fire after dousing him with gasoline. Later, the victim developed skin cancer and died as a result of the severe burns all over his body. The trial court concluded that the state could not properly bring a case against defendant until he turned 18 because they could not develop probable cause. The transfer statute, was amended after defendant committed the offence to lower the age for transferring cases to adult court to include defendant's age at the time of the offense. The result of being transferred to adult court meant that defendant could face a life sentence that he would not face had he been tried in juvenile court. On appeal, court analyzed case law which stood for the proposition that whether or not the amendment of a statute is sufficient to increase a defendant's punishment is a matter of degree and likely not an ex post facto violation if the amendment creates only a speculative an attenuated possibility of producing the prohibited effect. However, the court found that this was not an ex post facto violation because the State did not ask for a life sentence during sentencing. Therefore, the court found that there was probable cause to support the transfer to adult court and that because the state did not pursue a life sentence, defendant did not suffer any prejudice by being tried as an adult. Don Wilburn Collins v. The State of Texas, Court of Appeals for Ninth District, Case No. 09-15-00089-CR, 03/29/17

09-15-00089-CR
HOLLIS HORTON JUSTICE