Most Viewed Decisions

United States Court of Appeals, Fifth Circuit

Gross v. GGNSC Southaven, L.L.C., 15-60124, 15-60248 (5th Cir. 03/14/2016)

Contracts Decedents' heirs each filed suit against appellant nursing homes following the death of their mothers; appellants moved to compel arbitration under a perceived signed arbitration agreement. The district court denied the motion to compel holding the heirs lacked authority to enter into an arbitration agreement on decedents’ behalf as there was no executed power of attorney. Appellants challenged the district court's holdings as to actual authority and estoppel arguing it erred in adopting a formal legal-device requirement fora party to prove actual authority to sign an arbitration agreement. The appellate court consolidated the actions as the two cases presented similar issues and reviewed de novo the denial of the motions to compel arbitration. The appellate court held Mississippi law did not require a formal legal device to establish agency, rather the parties can establish the existence of an agency relationship with other types of evidence, including deposition testimony. The appellate court remanded for a factual finding as to whether the decedents' heirs established authority to act on their mothers' behalf through additional evidence and testimony. However, the appellate court denied the request for estoppel as decedents' heirs brought suit in their capacity as personal representatives rather than their individual capacity. Therefore, the appellate court vacated the district courts' orders and remanded for further proceedings. Gross v. GGNSC Southaven, L.L.C 5th U.S. Circuit Court of Appeals, No.: 15-60124, 15-60248, 3/14/2016

15-60124, 15-60248
STEPHEN A. HIGGINSON, Circuit Judge:

Court of Appeals of Texas, Sixth District, Texarkana

In re J.K.V., 06-15-00098-CV (Tex.App. Dist.6 03/15/2016)

Family Law Appellant father appealed the termination of his parental rights arguing the evidence was legally and factually insufficient to establish that terminating his rights was in the minor child's best interest. Appellant Father testified that he and the child's mother often fought over her drug usage leading to Child Protective Services opening a case for domestic violence and neglect by Father who "knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child". The trial court agreed and found termination of appellant father's parental rights was in the child's best interest. The appeals court reversed the trial court's decision terminating parental rights holding the best interest findings were not supported by factually sufficient evidence in accordance with Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Specifically, the trial court failed to examine the minor child's desires and needs, or that placement with the appellant father would place the minor in emotional or physical danger. Additionally, no evidence was presented as to appellant Father's parenting abilities or stability. Therefore, the appellate court reversed the trial court's judgment and rendered judgment denying termination of parental rights as the evidence was not factually sufficient to support that termination was in the minor child's best interests. In re J.K.V., Texarkana Court of Appeals, No.: 06-15-00098-CV, 03/15/2016

06-15-00098-CV
Josh R. Morriss, III Chief Justice

United States Court of Appeals, Fifth Circuit

Higginbotham v. State, 14-30753 (5th Cir. 03/18/2016)

Fifth Circuit Constitutional Law Petitioner-appellant was convicted by a jury of malfeasance in office and felony theft during his tenure as mayor in Louisiana state court. During the trial and following numerous continuances for lack of counsel, petitioner-appellant alleged two prosecution witnesses were not recorded and moved for a mistrial. The state court granted a partial mistrial on the public contract fraud, and petitioner-appellant was convicted of the remaining two offenses. Petitioner-appellant sought federal habeas relief pursuant to 28 U.S.C. Section 2254, arguing he was denied meaningful appellate review because of an incomplete trial transcript and denied his right to counsel. The appellate court upheld the conviction holding petitioner-appellant failed to show that the state court's decision was contrary to clearly established law or based on an unreasonable determination of facts. The appellate court held petitioner-Appellant failed to show the missing portions of the transcript prejudiced his appeal to either claim. Additionally, the appellate court stated petitioner-appellant was not denied counsel as he effectively waived counsel through dilatory tactics and delays. Therefore, the appellate court affirmed the judgment of the district court denying petitioner-appellant's Section 2254 petition. Higginbotham v. State, 5th U.S. Circuit Court of Appeals, No: 14-30753, 3/18/2016

14-30753
PER CURIAM:

United States Court of Appeals, Fifth Circuit

Malin International Ship Repair & Drydock, Inc. v. Oceanografia, S.A. DE C.V., 15-40463 (5th Cir. 03/23/2016)

Fifth Circuit Contracts Plaintiff-Appellant operated a shipyard in Galveston, Texas and performed work for defendant-appellant. Defendant-appellant operated a vessel under a bareboat charter agreement which would purchase bunkers at the time of delivery. Not having received payments for its work, plaintiff-appellant sued for the balance of its unpaid invoices. Plaintiff-appellant attached the bunkers in order to obtain jurisdiction over defendant-appellant pursuant to the Supplemental Admiralty Rule B. The district court denied defendant-appellant’s motion to vacate the attachment and granted plaintiff-appellant’s motion for summary judgment on its breach of contract action. The court of appeals affirmed holding the fuel bunkers constituted defendant-appellant’s “tangible or intangible personal property at the time of attachment” in accordance with Rule B. The court of appeals stated that upon obtaining the fuel bunkers, title transferred to defendant-appellant and this transfer was sufficient to define the fuel bunkers as property of defendant-appellant thereby permitting attachment. Having confirmed that the district court had personal jurisdiction over defendant-appellant, the court of appeals further affirmed the motion for summary judgment holding there was no material issues of fact or abuse of discretion. Malin International Ship Repair & Drydock, Inc. v. Oceanografia, S.A. DE C.V., U.S. Court of Appeals, 5th Circuit, No: 15-40463, 03/23/2016.

15-40463
WIENER, CIRCUIT JUDGE.

Court of Appeals of Texas, Tenth District

In re Marriage of Ramsey, 10-14-00252-CV (Tex.App. Dist.10 03/24/2016)

Court of Appeals Family Law Appellant husband appeals from the trial court's final decree of divorce dissolving his marriage arguing the trial court erred in denying his motion for continuance and its characterization of property. The parties were married on November 8, 2004; four years after the petition for divorce and following a bench trial, the parties were divorced. Appellant husband argued the trial court erred in denying his motion for continuance after allowing his counsel to withdraw shortly before trial and after resetting the trial to an earlier date than previously agreed. The appellate court upheld the district court's order stating the Texas Rules of Civil Procedure stated the "absence of counsel will not be good cause for a continuance or postponement of the cause when called for trial." The appeals court held the district court did not abuse its discretion when denying the continuance as appellant Husband was adequately notified of the trial. The appellate court additionally affirmed the property characterization holding the trial court did not abuse its discretion when it determined marital property based upon sufficient evidence provided. As such, the trial court's judgment and entry of decree for dissolution was affirmed. In re Marriage of Ramsey, Waco Court of Appeals, No: 10-14-00252-CV, 03/24/2016

10-14-00252-CV
AL SCOGGINS Justice.

Supreme Court of Texas

Campbell v. Wilder, 14-0379 (Tex. 04/01/2016)

Family Law Petitioners were six individuals who sued for divorce in Tarrant County between 2008 and 2012; each filed an uncontested affidavit of indigency in lieu of paying costs as permitted by Texas Rules of Civil Procedure Rule 145. Petitioners’ final divorce decrees nevertheless provided for allocation of these costs regardless of the affidavit. The trial court subsequently enjoined the district clerk from billing court costs to parties who filed uncontested affidavits of indigency; a divided court of appeals vacated the injunction and dismissed the case. On appeal, the Supreme Court sought to determine if the trial court had jurisdiction over a challenge to the district clerk’s exercise of its ministerial duties under Texas Civil Practice and Remedies Code §65.023(b) and whether injunctive relief was appropriate. The Supreme Court held the trial court exercised proper jurisdiction to enjoin the billing of costs as it was not an interruption of the clerk’s ministerial duties given the divorce decrees did not assign a particular cost, just allocated costs between the parties. Additionally, the Supreme Court found injunctive relief to be proper as the purpose of the suit was to prevent the clerk from continuing to bill costs to indigent litigants. Campbell v. Wilder, Texas Supreme Court, No.: 14-0379, 04/01/2016

14-0379
NATHAN L. HECHT CHIEF JUSTICE.

United States Court of Appeals, Fifth Circuit

United States v. Dvorin, 15-10142, 15-10183 (5th Cir. 03/18/2016)

Fifth Circuit Criminal Appeals Appellant was convicted of one count of conspiracy to commit bank fraud following several years of utilizing an “unofficial line of credit” with the assistance of a bank employee. During the trial, the co-conspirator testified in an effort to obtain some leniency in his sentencing. Appellant argued the district court erred by refusing to give certain jury instructions regarding apparent-authority, excluding admissible evidence, failing to sanction the prosecutor, and failing to dismiss the forfeiture notice. Prior to the instant appeal, the government agreed to vacate the conviction and the case was set for a new trial; appellant was again convicted. The court of appeals affirmed the district court holding it did not err in refusing to instruct the jury on apparent authority because the district court’s good faith instruction made clear that the government must prove beyond a reasonable doubt that appellant acted with the specific intent to violate the law. Additionally, the court of appeals found no abuse of discretion by allowing witnesses to use terms such as “fraudulent check” or “fraud” nor did it err by excluding evidence that the co-conspirator failed to disclose his plea agreement in the first trial. However, the district court erred in adding a forfeiture notice in the second trial as the evidence showed such addition was prosecutorial vindictiveness. Therefore, the district court’s judgment of forfeiture was vacated; all other grounds were affirmed. United States v. Dvorin, U.S. Court of Appeals, 5th Circuit, No.: 15-10142, 15-10183, 03/18/2016

15-10142, 15-10183
HAYNES, Circuit Judge:

United States Court of Appeals, Fifth Circuit

United States ex rel. Bias v. Tangipahoa Parish School Board, 15-30193 (5th Cir. 03/09/2016)

Employment Law A high school JROTC instructor, the appellant, brought suit against the Tangipahoa Parish School Board and two school employees. Although the appellant was employed by the Marine Corps, he alleged he was in effect a contractor or agent for the School Board. The defendants did not waive their defense that the 42 U.S.C. §1983 and state law claims were time-barred by failing to assert it in their answer; the issue was not disputed and the suit was in its infancy when the defense was raised. There was enough pleaded by the appellant regarding his relationship with the school board — that it is plausible that he was an agent — to support his retaliation FCA claim. The allegations that a high school principal might have dissuaded the appellant from reporting alleged misappropriation of government funds, along with facts making it plausible that the principal acted at least with apparent authority, sufficiently stated a claim of retaliation. The district court’s judgment is reversed and remanded in part and affirmed in part. United States ex rel. Bias v. Tangipahoa Parish School Board, 5th U.S. Circuit Court of Appeals, No. 15-30193, 03/09/2016.

15-30193
LESLIE H. SOUTHWICK, Circuit Judge

Court of Appeals of Texas, Seventh District, Amarillo

In re State, 07-16-00052-CR (Tex.App. Dist.7 03/16/2016)

Criminal Law Relator, the State of Texas sought a writ of mandamus directing respondent, the Honorable Pamela C. Sirmon, to vacate an order deferring further proceedings without an adjudication of guilt in a misdemeanor speeding offense case involving the real party in interest, Jimmie Mark White. On appeal, Judge Sirmon deferred White’s fines and court costs with conditions; upon completion of conditions, the speeding offense would be dismissed. The state argued the act of suspending the imposition of sentence and assurances of dismissal exceed the court’s authority pursuant to Texas Code of Criminal Procedure §45.051(f). The appeals court held the code permitted a justice of the peace and municipal court judge the express authority to defer an adjudication of guilt in a misdemeanor case punishable by fine only. However, although the appeals court held that the authority placed on county court at law judges are the same as municipal court judges, both judges are subject to the same limitations. Article 45.051(f) limits deferred judgments for those whom hold a commercial driver’s license; as White held such a license, he was ineligible for a deferred adjudication and Judge Sirmon was directed to withdraw the judgment of deferred disposition. In re State, Amarillo Court of Appeals, No.: 07-16-00052-CR, 03/16/2016

07-16-00052-CR
PER CURIAM

United States Court of Appeals, Fifth Circuit

L.L.C. v. National Labor Relations Board, 15-60011 (5th Cir. 03/24/2016)

Labor and Employment Appellant Hallmark, a government contractor providing vehicle maintenance services at air force bases in Florida. Hallmark entered into two separate collective bargaining agreements with two different unions. After the contract terminations, disputes arose under each CBA regarding severance, accrued vacation pay. The unions filed unfair labor charges under the National Labor Relations Act, 29 U.S.C. §151 charging Hallmark with bad faith collective bargaining by unilaterally modifying the terms of the CBAs. Hallmark challenged the employees were not entitled to severance as they were being terminated. The board found in favor of the unions when Hallmark failed to make the disputed payments. Hallmark appealed arguing the dispute should have been resolved under the arbitration procedures of the CBAs and that it had “sound arguable basis” for its interpretation of the CBA provisions. The appeals court affirmed in part holding that Hallmark was not consistent with its willingness to allow an arbitrator to address the merits of the unions’ charges based on differing letters; therefore the board did not abuse its discretion in asserting jurisdiction over this matter. Additionally properly held that Hallmark lacked a sound arguable basis for its interpretation between “termination” and “laid off” as the terms are interchangeable. However, the board erred in dismissing the carry-over vacation pay funds and lead-pay premium payments as Hallmark has a plausible argument that the Air Force engaged the “rebid” provision of the CBAs through its cost reassessments. Accordingly, the case was remanded to the board for the limited purpose of calculating severance pay minus the lead-pay differential and adjusting the carry-over vacation pay. L.L.C. v. National Labor Relations Board, U.S. Court of Appeals, 5th Circuit, No. 15-60011, 03/24/2016

15-60011
E. GRADY JOLLY, Circuit Judge