Most Viewed Decisions

Court of Appeals of Texas, Eighth District, El Paso

Morrison v. State, 08-13-00319-CR (Tex.App. Dist.8 11/04/2015)

The appellant contends the trial court violated his rights under the U.S. and Texas Constitutions, as well as his statutory rights, by excluding him from the courtroom during jury voir dire, and by not giving him the opportunity to reclaim his right to be present in the courtroom at any point during the guilt-innocence phase of his trial. A defendant's right to be present in the courtroom until jury selection is completed is mandatory and cannot be waived. Although there does not appear to be a bright-line rule in Texas requiring a trial court to follow a particular method to ensure that a defendant is given a reasonable opportunity to return to the courtroom, at a minimum, the trial court should inform the defendant of his right to return to the courtroom and should, either directly or indirectly by using defense counsel as an intermediary, take reasonable steps to assess whether the defendant is ready to reclaim his right to return to the courtroom. The error was harmless, for reasons including that defense counsel’s trial strategy of obtaining a conviction on the lesser offense of murder was achieved. The trial court’s judgment is affirmed as modified. Morrison v. State, El Paso Court of Appeals, No. 08-13-00319-CR, 11/04/2015.

08-13-00319-CR
STEVEN L. HUGHES, JUSTICE

Court of Appeals of Texas, Fourteenth District

Peine v. Hit Services L.P., 14-14-00412-CV (Tex.App. Dist.14 10/27/2015)

The appellant alleges he was wrongfully discharged for refusing to commit a crime. Even if, in some cases, circumstantial evidence could create a fact issue on the sole-cause element of a Sabine Pilot claim, the appellant has not identified a genuine issue of material fact regarding whether he was terminated solely because he refused to perform an illegal act. The trial court’s judgment is affirmed. Peine v. Hit Services L.P., Houston’s 14th Court of Appeals, No. 14-14-00412-CV, 10/27/2015.

14-14-00412-CV
J. BRETT BUSBY, JUSTICE.

Court of Appeals of Texas, Eleventh District

Collins v. State, 11-14-00312-CR (Tex.App. Dist.11 11/05/2015)

The appellant unsuccessfuly sought to quash the indictment and to obtain habeas corpus relief based upon her contentions that the indictment was faulty and that the statute under which she was indicted is unconstitutional. The Legislature's inclusion of the language "regardless of the age" of the student in Texas Penal Code §21.12(a)(3) indicates that the Legislature did not intend to include §33.021's requirement that the student be "a minor" as defined by §33.021. By doing so, the Legislature made it an offense for an educator to have an improper relationship with a student even if the student was not a minor at the time. Following the rationale of the Court of Criminal Appeals in Lo, §21.12(a)(3) is unconstitutionally broad insofar as it incorporates the unconstitutionally broad §33.021(b). Consequently, counts I, II, and III of the indictment against the appellant must be dismissed. Section 21.12(a)(3) insofar as it incorporates §33.021(c) is not unconstitutionally overbroad. The trial court’s order is affirmed in part, and remanded with instructions. Collins v. State, Eastland Court of Appeals, No. 11-14-00312-CR, 11/05/2015.

11-14-00312-CR
JIM R. WRIGHT CHIEF JUSTICE

Court of Appeals of Texas, Fourteenth District

Cal Dive Offshore Contractors Inc. v. Bryant, 14-13-00883-CV (Tex.App. Dist.14 10/20/2015)

The appellant challenges an adverse final judgment following a jury trial on the appellee’s suit for injuries sustained in a slip-and-fall accident on the appellant’s ship. Although the trial court expressed uncertainty regarding the English liability standard early in the ongoing discussion, the trial court received additional materials from the parties thereafter. The parties adequately informed the trial court of English law. The common duty of care established by the Occupiers Liability Act 1957 is the same as the ordinary negligence duty of care recognized by Texas: an occupier has a duty of care under English law to act as an ordinary reasonable person under the same or similar circumstances, not the duty of care found in Texas premises liability law. Because Texas law permits the recovery of the same damages as those recoverable under English law, the trial court did not abuse its discretion when it submitted damages to the jury using a question adapted from the Texas Pattern Jury Charge. The trial court’s judgment is affirmed. Cal Dive Offshore Contractors Inc. v. Bryant, Houston’s 14th Court of Appeals, No. 14-13-00883-CV, 10/20/2015.

14-13-00883-CV
J. Brett Busby Justice

Court of Appeals of Texas, Eighth District, El Paso

Dixon v. The Bank of New York Mellon, 08-13-00317-CV (Tex.App. Dist.8 11/05/2015)

A County Court's judgment gave a bank possession of a house that was sold to it at foreclosure, dispossessing the current occupant. The appellant contends that "[t]here is no evidence that any Deed of Trust was provided at the JP Court level such that the Court could obtain jurisdiction." Nothing in this record shows that the appellant raised a jurisdictional challenge with the quantum of evidence at the Justice Court. Instead, the record is just the opposite — it appears the appellant did not appear at all before that court. Because the appellant did not properly assert a jurisdictional challenge at the Justice Court, any obligation for the bank to put on jurisdictional evidence was never triggered, and its pleading was enough. The county court’s judgment is affirmed. Dixon v. The Bank of New York Mellon, El Paso Court of Appeals, No. 08-13-00317-CV, 11/05/2015.

08-13-00317-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE.

Court of Appeals of Texas, Second District, Fort Worth

In re Hayward, 02-15-00299-CV (Tex.App. Dist.2 10/26/2015)

The plaintiff sued the relators claiming that she was a partner in a publishing house and was entitled to a share of profits. The relators seek a writ of mandamus compelling the respondent to vacate an order imposing a constructive trust. The order requires that the relators deposit $10 million into the registry of the court. A constructive trust cannot attach to unidentified assets. The party seeking imposition of a constructive trust — not the party opposing it — bears the burden of strictly tracing the property to be placed into a constructive trust to property wrongfully withheld from the party seeking the trust. The writ is conditionally granted. In re Hayward, Fort Worth Court of Appeals, No. 02-15-00299-CV, 10/26/2015.

02-15-00299-CV
SUE WALKER, JUSTICE.

Court of Appeals of Texas, First District

Alanis v. U.S. Bank National Association As Successor Trustee To Bank Of America, National Association, 01-14-00559-CV (Tex.App. Dist.14 11/03/2015)

This appeal against a bank and a firm relate to a foreclosure. The appellant argues that Texas Civil Practice and Remedies Code §33.002 does not apply because her suit sounded in contract rather than in tort. Although the actions that the appellant complained of at trial involved the foreclosure on her property pursuant to the promissory note and deed of trust, the substance of her claims at trial revolved around the allegedly wrongful acts of the bank and firm in connection with their attempt to collect the debt. These are tort claims; therefore, the trial court did not err in considering the appellant’s comparative liability for her injuries as found by the jury and reducing her damages accordingly. The evidence supporting the jury's finding of out-of-pocket damages was legally insufficient. Regarding attorney’s fees, the no-net-recovery exception does not apply when a consumer — or, as here, a person seeking attorney's fees under the Fair Debt Collection Practices Act — has already settled for an amount greater than the damages found by the jury in the trial against the non-settling defendant. The trial court’s judgment is affirmed in part, and reversed and rendered. Alanis v. U.S. Bank National Association As Successor Trustee To Bank Of America NA, Houston’s 1st Court of Appeals, No. 01-14-00559-CV, 11/03/2015.

01-14-00559-CV
EVELYN V. KEYES JUSTICE

Court of Appeals of Texas, First District

Crum & Forster Specialty Insurance Co. v. Creekstone Builders, Inc., 01-14-00907-CV (Tex.App. Dist.14 10/27/2015)

This declaratory judgment action involves an insurance coverage dispute arising out of a construction-defects verdict obtained in South Carolina against the appellee, an insured under commercial general liability insurance policies issued by the appellant. The appellee’s failure to present evidence at the forum non conveniens hearing is not automatically fatal to its ability to meet its forum non conveniens burden. The plaintiff in the underlying action is not a resident of Texas. Thus, its forum choice is entitled to substantially less deference than if it were a Texas resident. The trial court did not abuse its discretion in dismissing the underlying action on forum non conveniens grounds. The trial court’s dismissal is affirmed. Crum & Forster Specialty Insurance Co. v. Creekstone Builders Inc., Houston’s 1st Court of Appeals, No. 01-14-00907-CV, 10/27/2015.

01-14-00907-CV
Evelyn V. Keyes Justice

Court of Appeals of Texas, Fourteenth District

Fleming & Associates, L.L.P. v. Kirklin, 14-15-00238-CV, 14-15-00369-CV (Tex.App. Dist.14 10/29/2015)

A firm handled the claims of over 8, 000 clients in diet-drug litigation. The firm alleges that, after the case settled, the defendants solicited former clients to pursue civil litigation against the firm concerning settlement expenses. The plaintiffs attempt to appeal the trial court’s order granting TCPA motions to dismiss. The courts of appeals do not have jurisdiction over an interlocutory appeal from an order granting a motion to dismiss under chapter 27 of the Texas Civil Practice and Remedies Code. The court of appeals lacks jurisdiction over the attempted appeal by a defendant; the order on summary judgment does not dispose of all parties and all claims and no statute explicitly provides for an appeal from this interlocutory order. The appeals are dismissed. Fleming & Associates, L.L.P. v. Kirklin, Houston’s 14th Court of Appeals, No. 14-15-00238-CV, 14-15-00369-CV, 10/29/2015.

14-15-00238-CV, 14-15-00369-CV
PER CURIAM

Court of Appeals of Texas, Fifth District, Dallas

In re King, 05-15-01035-CV (Tex.App. Dist.5 10/22/2015)

The relator seeks a writ of mandamus challenging a district court order that denied relator's plea in abatement and refusal to order the case transferred to a county justice court. The trial court did not abuse its discretion in declining to abate this case because the dominant jurisdiction issue here is premised on hypothetical prospective developments. The petition is denied. In re King, Dallas Court of Appeals, No. 05-15-01035-CV, 10/22/2015.

05-15-01035-CV
DAVID J. SCHENCK JUSTICE.