Most Viewed Decisions

Court of Appeals of Texas, Fourteenth

FinServ Casualty Corp. v. Transamerica Life Insurance Company, 14-14-00838-CV (TexApp Dist 10/20/2016)

This appeal arose out of a dispute among companies involved in making or receiving structured-settlement payments. The trial court disposed of all claims by granting various summary judgment motions, except for the defendants' request for attorney's fees. Following jury findings as to the amount of reasonable and necessary attorney's fees, the trial court rendered a final judgment dismissing the plaintiff's claims. On appeal, the plaintiffs asserted the trial court erred in striking their amended pleading, granting summary judgment as to their breach of contract claims and the defendants' offset claim, awarding the defendants' attorney's fees, and holding the plaintiffs jointly and severally liable for the fees. The court of appeals concluded the trial court erred in awarding attorney's fees for prosecuting the interpleader action and in granting summary judgment as to certain breach of contract claims. However, the court of appeals held appellants failed to show the trial court erred in granting summary judgment on appellees' offset claim. Further, there was no error in awarding reasonable and necessary attorney's fees under the Declaratory Judgments Act before any fact findings by the jury as to the amount of these fees. Accordingly, the judgment was reversed in part and affirmed in part. FinServ Casualty Corp. v. Transamerica Life Insurance Company, Houston 14th Court of Appeals, Case No.: 14-14-00838-CV, 10/20/2016

14-14-00838-CV
KEM THOMPSON FROST CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

Forte v. Wal-Mart Stores, Incorporated, 12-40854 (5th Cir. 10/27/2016)

Appellees, a group of optometrists who leased office space from appellant, Wal-Mart Stores, Inc., in its retail stores, sued for violations of the Texas Optometry Act. They alleged that Wal-Mart, in violation of the Act, attempted to control their practice of optometry by exercising influence over their hours. Appellees conceded that they did not suffer any compensatory damages, but instead sought civil penalties under the Act. After trial, a jury returned in the amount of $1,395,400, consisting entirely of statutory civil penalties. Appellant appealed and in the court's first opinion it held that appellant was properly held liable under the Act but the civil penalties assessed were in violation of Tex. Civ. Prac. & Rem. Code §41. However, the court subsequently vacated that opinion and adopted the holding that appellant was properly found liable, damages were proper, and certified two questions concerning the issue. Upon certification, the Texas Supreme Court found that "civil penalties" under the Optometry Act were, by operation of Chapter 41, unavailable to private plaintiffs who had not sustained any actual damages. The parties briefed the matter and agreed that the district court's judgment regarding damages must be vacated. However, the matter is remanded for a determination of whether appellees were entitled to attorneys' fees. Forte v. Wal-Mart Stores, Incorporated, Fifth Circuit, Case No.: 12-40854, 10/27/2016

12-40854

Court of Appeals of Texas, Fourteenth

Damonte Bonds v. The State of Texas, 14-15-00688-CR (TexApp Dist 10/25/2016)

Appellant plead guilty to aggravated robbery with a deadly weapon and was sentenced to seven years' confinement. Appellant was further assessed court costs amounting to $259, including $13.06 to fund rehabilitation services. On appeal, appellant challenged the assessments asserting that (1) he was not provided a bill of court costs as required by the Tex. Code Crim. Proc. Ann. §103.001 and (2) assessing court costs under Tex. Loc. Gov't Code § 133.102 for rehabilitation services was a taking that violated the Texas Constitution and United States Constitution. The court of appeals affirmed holding a bill of costs was "provided" to him through the clerk's record, an appropriate provider as the article does not identify a particular actor who must provide the bill of costs. Because appellant has seen and examined the bill of costs, the court concluded it was supplied to appellant or at least made available to him. Finally, the court of appeals found that a trial court's assessment of court costs did not effect a taking within the meaning of the United States or Texas Constitutions. Bowden v. State, No. 14-14-00955-CR, 2016 WL 6107625 (Houston [14th Dist.]) Thus, under Bowden, appellant's argument lacked merit. Damonte Bonds v. The State of Texas, Houston 14th Court of Appeals, Case No.: 14-15-00688-CR, 10/25/2016

14-15-00688-CR
KEM THOMPSON FROST CHIEF JUSTICE

Court of Appeals of Texas, Third District

In re Volkswagen Clean Diesel Litigation: Texas Clean Air Act Enforcement Actions, 03-16-00673-CV (TexApp Dist 11/04/2016)

The dispute underlying this proceeding concerned EPA allegations that relator, Volkswagen, manipulated emission-control equipment on certain of its diesel automobiles and misrepresented that those vehicles complied with U.S. emission laws. In the wake of the EPA's notice of violation, more than sixty consumer and environmental lawsuits were filed. On Volkswagen's motion, the Texas Multi-District Litigation Panel transferred the Texas state cases to two MDL pre-trial courts. The State of Texas filed an application for interlocutory appeal under the Tex. Civ. Prac. & Rem. Code §51.014(d) complaining of the district court's orders denying the State's motions to dismiss the appellee counties' lawsuits. The court of appeals denied the application holding the interlocutory ruling on this order did not concern controlling questions that would materially advance the ultimate termination of the litigation. The issues on which the State relied to justify permissive interlocutory appeal involved disputes between plaintiffs over control of the litigation and its spoils. While these issues may be important to the plaintiffs' strategy, they did not dispose of controlling questions of law in the litigation because they did not implicate or advance the determination of liability, damages, or the viability of the underlying claims. As such, immediate resolution of the State's motions would not "materially advance the ultimate termination of the litigation." In re Volkswagen Clean Diesel Litigation: Texas Clean Air Act Enforcement Actions, Austin Court of Appeals, Case No.: 03-16-00673-CV, 11/04/2016

03-16-00673-CV
JEFF ROSE, CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

Tsolmon v. United States of America, 15-20609 (5th Cir. 11/07/2016)

Appellant was stopped by Customs and Border Protection and indicated he was a "temporary visitor" lawfully in the United States on an H-1B temporary worker visa. However, appellant did not have a physical copy of his immigration papers and CBP was unable to verify his status. Appellant was subsequently arrested; despite several hours attempting to verify his status, appellant was issued a Notice to Appear on the charge that he was in violation of his F-2 visa – the only documentation uncovered. A the detainment center, appellant claimed he was subjected to a medical exam and tuberculosis test, confined in an overcrowded cell, not given access to a phone, and not given paperwork documenting his detainment. Eventually, appellant's status was confirmed and he was released; appellant filed suit for emotional distress under the Federal Tort Claims Act. Appellant appeals the district court's grant that the conduct fell within the discretionary function to the FTCA's waiver of sovereign immunity and that the law enforcement proviso did not apply. The court affirmed holding the officers did not act in violation of a statute or policy that specifically directs them to act otherwise and were protected by sovereign immunity. Further, the court held the officers' conduct in investigating appellant's immigration status did not violate their discretionary authority which would have precluded sovereign immunity. Accordingly, the judgment was affirmed. Tsolmon v. United States of America, Fifth Circuit, Case No.: 15-20609, 11/07/2016

15-20609
GREGG COSTA, CIRCUIT JUDGE

Court of Appeals of Texas, Tenth

Jeffrey Dean Gerron v. The State of Texas, 10-14-00121-CR (TexApp Dist 10/26/2016)

Appellant was convicted on nine of ten counts of possession of child pornography, and was sentenced to consecutive terms of nine years in prison on each count. Following ten issues on appeal, the court affirmed the conviction. Namely, the court found that appellant did not argue that the criminal statute defining "lewd exhibition" was vague as to his conduct and therefore failed to meet his burden of establishing that the term was unconstitutional. Additionally, a statute was not unconstitutionally vague merely because it failed to define words or phrases. Further, viewing the evidence in the light most favorable to the judgment, the court concluded that the evidence was sufficient to support the jury's guilty verdict. Here, the jury, as the factfinder, reviewed the images and other evidence and determined that the girls depicted in the exhibits were under age as the time the images were made. Moreover, the court found that the trial court did not abuse its discretion in admitting extraneous photographs and testimony as well as holding the evidence was more probative than prejudicial. Finally, the court overruled appellant's Sixth Amendment's right of confrontation objection holding any error present did not contribute to the conviction. Jeffrey Dean Gerron v. The State of Texas, Waco Court of Appeals, Case No.: 10-14-00121-CR, 10/26/2016

10-14-00121-CR
REX D. DAVIS JUSTICE

Court of Appeals of Texas, Fourteenth

Gatesco Q.M. Ltd. v. The City of Houston, 14-14-01017-CV (TexApp Dist 10/20/2016)

This case arose out of a dispute between appellee, the City of Houston and appellant, a water-service customer. Appellant sought declaratory relief based on various purported constitutional violations that allegedly occurred when the City charged appellant a late fee, shut off the water supply, and required appellant to post a deposit before restoring water service. The trial court granted summary judgment for appellee and dismissed appellant's claims. The court of appeals reversed as to appellant's substantive-due-course-of-law claims under the Texas Constitution, request for injunctive relief, and request for attorney's fees; the remainder of the trial court's judgment was affirmed. Namely, the court of appeals held appellant demonstrated that (1) the statute's purpose could not arguably be rationally related to a legitimate governmental interest; or (2) when considered as a whole, the statute's actual, real-world effect as applied to the challenging party could not arguably be rationally related to, or is so burdensome as to be oppressive in light of, the governmental interest. Patel v. Texas Dep't of Licensing and Regulation, 469 S.W.3d 39, 87 (Tex. 2015) Because appellee's only summary judgment ground against the claims that appellee violated the substantive-due-process-course-of-law protection was not a proper basis for the trial court's summary judgment, the court of appeals reversed as to these claims. Further, the court of appeals held the trial court erred as appellee's summary judgment motion evidence did not entitle the appellee to judgment as a matter of law as to the request for declaratory relief. Gatesco Q.M. Ltd. v. The City of Houston, Houston 14th Court of Appeals, Case No.: 14-14-01017-CV, 10/20/2016

14-14-01017-CV
KEM THOMPSON FROST CHIEF JUSTICE

Court of Appeals of Texas, Twelfth

In re: Amoco Federal Credit Union, 12-16-00166-CV (TexApp Dist 10/31/2016)

During a guardianship dispute over their mother filed in both Illinois and Texas, an Illinois court rendered a mandatory injunction requiring relator to deliver funds from the bank account to the guardian ad litem's trust account. Relator complied with the order; twenty minutes later the San Augustine court issued an ex parte temporary order restraining the transfer of funds. Relator subsequently filed for declaratory judgment that it had not breached its member agreement by transferring the funds despite not domesticating the Illinois court order. Relator asserted in this original mandamus proceeding that the 122nd Judicial District Court of Galveston County had dominant jurisdiction to determine the issues raised in two rival declaratory judgment actions. Relator sought a writ of mandamus directing the trial court to vacate its temporary restraining order and stay the declaratory judgment action. Relator argued that Galveston had dominant jurisdiction because its declaratory judgment action was filed before the real parties filed their own declaratory judgment action in the San Augustine court. The court of appeals conditionally granted the writ holding because the transfer of funds occurred in Galveston, Galveston court acquired dominant jurisdiction. The court of appeals further held the membership agreement provided for a venue provision and "all or a substantial part of the events or omissions giving rise to the claim occurred in Galveston." Tex. Civ. Prac. & Rem. Code Ann. §15.002(a)(1) In re: Amoco Federal Credit Union, Tyler Court of Appeals, Case No.: 12-16-00166-CV, 10/31/2016

12-16-00166-CV
JAMES T. WORTHEN CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth

Alex Erazo v. Louis A. Sanchez, Chief Medical Director for the Harris County Institute of Forensic Sciences, 14-15-00884-CV (TexApp Dist 10/18/2016)

Appellant filed a petition for writ of mandamus seeking to compel appellees to exhume the remains of a woman whom appellant was convicted of murdering, perform an autopsy, and conduct or reopen an inquest into her cause of death. Appellant challenged the trial court's order dismissing his case for lack of jurisdiction. The court of appeals reversed in part holding the trial court lacked jurisdiction over appellant's claims against appellee Dale M. Gorczynski, Justice of the Peace, but held it had jurisdiction over the claims against the remaining appellees. The court of appeals previously held in In re Green, No. 14-15-00594-CR, 2015 WL 5092489 (Tex. App. – Houston [14th Dist.] Aug. 27, 2015) that a trial court lacked jurisdiction to compel a justice of the peace to conduct or reopen an inquest in a county when such county had a medical examiner's office. Accordingly, the trial court lacked jurisdiction over appellee Gorczynski as the death occurred in Harris County and was performed by a medical examiner in said county. The court of appeals further held it would not determine whether there was sufficient reason to force an inquest; rather the court of appeals merely concluded that the trial court had jurisdiction to hear and decide the matter. Alex Erazo v. Louis A. Sanchez, Chief Medical Director for the Harris County Institute of Forensic Sciences, Houston 14th Court of Appeals, Case No.: 14-15-00884-CV, 10/18/2016

14-15-00884-CV
MARTHA HILL JAMISON JUSTICE

United States Court of Appeals, Fifth Circuit

OneBeacon Insurance Company v. T. Wade Welch & Associates, 15-20402 (5th Cir. 11/14/2016)

Since the mid-1990s, co-appellees have represented appellee DISH Network in over 400 different matters and eventually became its go-to litigation counsel. In 2006 co-appellee represented to appellant that statements made in an application would be deemed made to appellant and that all statements were true. Appellant issued a "claims-made" malpractice policy retroactive to 1995. The underlying suit ensued following the rescission of the policy. After a jury verdict against it, appellant appealed the judgment, including the district court's denials of its motions for judgement as a matter of law, renewed motion for judgment as a matter of law, and motion for new trial. The court affirmed holding, under the facts of the case, the "wrongful act" reasonably likely to lead to a malpractice claim, would not have resulted in the sanctions that ensued and thus not have supported the kind of recovery that the policy insured. In the face of this evidence, appellant, which bore the burden of proving an exclusion applied, could not prevail as a matter of law on a contrary view. Further, the district court did not err in entering judgment on the jury's award of additional damages on the ground that appellant "knowingly" violated §541.060 of the Texas Insurance Code. The court noted the evidence did not point so strongly and overwhelmingly in appellant's favor that reasonable jurors could not have reached a different conclusion. Accordingly, the lower court's judgment was affirmed. OneBeacon Insurance Company v. T. Wade Welch & Associates, Fifth Circuit, Case No.: 15-20402, 11/14/2016

15-20402
HAYNES, CIRCUIT JUDGE