Most Viewed Decisions

Court of Appeals of Texas, Sixth Appellate District

Thomas v. Miller, 06-15-00095-CV (TexApp Dist 08/04/2016)

This case involved an oral executory contract under which appellant agreed to sell and appellee agreed to purchase two acres of land located in Cass County. Under the terms of the contract, appellee was to begin paying the mortgage on the property, and when the lien was paid in full appellee would own the property. At trial, a jury determined appellant breached the contract and awarded damages. On appeal, appellant argued the oral contract was unenforceable under the statute of frauds. Although the statute of frauds applied, the court of appeals affirmed holding the evidence was legally and factually sufficient to support the jury's findings under the partial performance exception. Tex. Bus. & Com. Code Ann. 26.01 It was uncontroverted that this was an oral contract for the sale of real property, was not to be performed within a year and did not contain a sufficient property description. However, partial performance was an exception to the statute of frauds as appellees showed (1) they had performed acts unequivocally referable to the agreement, (2) that the acts were performed in reliance on the agreement, (3) that as a result of the acts they had experienced substantial detriment, (4) that they have no adequate remedy for their loss, and (5) that appellant would reap an unearned benefit such that not enforcing the agreement would amount to a virtual fraud. Accordingly, the judgment of the trial court was affirmed as modified. Thomas v. Miller, Texarkana Court of Appeals, Case No.: 06-15-00095-CV, 08/04/2016

06-15-00095-CV
JACK CARTER JUSTICE

United States Court of Appeals, Fifth Circuit

LSR Consulting, LLC v. Wells Fargo Bank, N.A., 15-20774 (5th Cir. 08/31/2016)

In 2006, non-party purchased two properties with mortgages serviced by appellee. Following default, appellee foreclosed. Prior to foreclosure, non-party requested appellee verify the debt as to the both properties under the Fair Debt Collections Practices Act. Non-party subsequently assigned their alleged claims against appellee to their wholly owned company, appellant-LSR. After discovery and motion practice, the district court granted summary judgment to appellee and awarded it attorneys' fees, both of which appellant appeals. The Court affirmed holding appellant failed to establish an essential element on the wrongful foreclosure claim. Under Texas law, a party alleging wrongful foreclosure must prove a defect in the foreclosure-sale proceedings. Texas required strict compliance with a deed of trust, including notice conditions; appellant argued it did not receive notice of the intent to accelerate the maturity of the indebtedness as required by the deeds of trust. Appellants further state the notices of default and intent to foreclose were inadmissible as they were not self-authenticating. The Court noted the various declaration filed by appellees demonstrated that the notices can be presented in a form admissible in evidence and were sufficient to put appellees on notice. Finally, under the FDCPA, a court may award attorneys' fees upon a finding that the action was brought in bad faith. As the district court made the requisite factual findings, the judgment was affirmed. LSR Consulting, LLC v. Wells Fargo Bank, N.A., Fifth Circuit, Case No.: 15-20774, 08/31/2016

15-20774
JERRY E. SMITH, CIRCUIT JUDGE

United States Court of Appeals, Fourth Circuit

In re Esperanza Hughes, 04-15-00482-CV (4th COA. 08/10/2016)

Interested parties appealed the trial court's order granting Peachtree Settlement Funding, LLC's application for approval of transfer of structured annuity benefits. Pursuant to the terms of a wrongful death settlement, petitioner was entitled to receive monthly payment of $6,500 for the duration of her life. She contracted with Peachtree to sell a portion of her annuity in exchange for a lump sum cash payment. On appeal, interested party MetLife argued the trial court erred in (1) rewriting MetLife's contract with petitioner, (2) circumvented the Texas Structured Settlement Protection Act; (3) imposing the servicing agreement on MetLife, and (4) finding that the transfer was in petitioner's best interest. The court of appeals reversed holding petitioner was contractually prohibited from transferring the structured benefits. Here, the plain language of the Uniform Qualified Assignment between the parties specifically prohibits the sale, assignment or encumbrance of the periodic annuity payments. Although contracts are generally assignable, anti-assignment clauses are enforceable unless rendered ineffective by statute. The court of appeals held that the clear and unambiguous language of the contracts prohibiting assignment should be given full effect, and the trial court erred in granting the transfer application. Accordingly, the judgment of the trial court was reversed. In re Esperanza Hughes, San Antonio Court of Appeals, Case No.: 04-15-00482-CV, 08/10/2016

04-15-00482-CV
KAREN ANGELINI, JUSTICE

Court of Appeals of Texas, Seventh District

Tregellas v. Archer, 07-14-00421-CV (TexApp Dist 08/26/2016)

In the underlying lawsuit, appellees sought specific performance of a right of first refusal of a mineral interest. After a bench trial, the court rendered judgment in favor of appellees. The court of appeals reversed in part and otherwise affirmed the judgment of the trial court. The court of appeals held the corrected recorded instrument listing the proper county location of the property complied with the statute of frauds in its preparation and recordation. A suit for specific performance of a contract for the conveyance of real property must be brought no later than four years after the cause of action accrues. Tex. Civ. Prac. & Rem. Code Ann. §16.004(a)(1) As the breach action on the right of first refusal agreement accrued upon the sale in 2007, the trial court erred in not barring the action under the statute of limitations. Additionally, the recordation of the sale resulting in appellees' injury was discoverable by the exercise of reasonable diligence. Finally, the court of appeals concluded the foreclosure and subsequent deed to appellants was a voluntary sale of the mineral interest and thus subject to the right of first refusal. Accordingly, appellees were to take nothing by their claim for specific performance but otherwise affirmed the judgment of the trial court. Tregellas v. Archer, Amarillo Court of Appeals, Case No.: 07-14-00421-CV, 08/26/2016

07-14-00421-CV
JAMES T. CAMPBELL, JUSTICE

Court of Appeals of Texas, Fifth District

Goodman v. Compass Bank, 05-15-00812-CV (TexApp Dist 08/03/2016)

In the underlying lawsuit, appellee sued appellant, as guarantor, to collect the deficiency remaining after appellee foreclosed on two pieces of real property securing the repayment of two promissory notes. The court rendered judgment for appellee and further signed an order for turnover and injunctive relief. Appellant raised twelve points of error of the post-judgment orders, including failure to present competent evidence of nonexempt property subject to turnover, improper turnover of later-acquired property, and the award of attorney fees. The court of appeals reversed the trial court as it related to the attorney fees, but affirmed the order in all other respects. Issuance of a turnover order required a factual showing that the judgment debtor had nonexempt property that was not readily subject to ordinary execution. Black v. Shor, 443 S.W.3d 170, 181 (Tex. App.—Corpus Christi 2013) The court of appeals held there was some evidence of a substantive and probative character that appellant had nonexempt property subject to turnover, and therefore the trial court did not abuse its discretion by entering the order on that basis. Additionally, the plain language of the statute does not require the court to identify the specific property subject to the turnover order nor prevent the turnover of documents needed to effectuate the turnover. However, because appellee failed to segregate recoverable and non-recoverable attorney's fees, as well as waiving any claim, the court of appeals reversed that portion of the order allowing attorney's fees. Goodman v. Compass Bank, Dallas Court of Appeals, Case No.: 05-15-00812-CV, 08/03/2016

05-15-00812-CV
ROBERT M. FILLMORE JUSTICE

Court of Appeals of Texas, Eighth District

The Physicians Association v. Tiscareno, 08-15-00317-CV (TexApp Dist 08/17/2016)

This appeal involved the sufficiency of a preliminary expert report in a medical malpractice case. Appellees filed a healthcare liability claim against appellants claiming negligence for appellants' failure to properly treat a "post-operative infected wound". Appellant moved to dismiss the lawsuit contending appellees' expert report failed to meet the requirements of the Texas Medical Liability Act. The trial court denied the motion and appellants filed this interlocutory appeal. The court of appeals concluded the expert report was deficient, and reversed and remanded for the trial court to consider giving appellees an opportunity to amend the report. As provided by statute, appellees were required to serve complying preliminary expert report, including identifying the standard of care, on appellants in support of their claims. Tex. Civ. Prac. & Rem. Code Ann. §74.351 Although the report adequately informed appellants of the specific conduct the appellees questioned and to provide a basis for the trial court to conclude the appellees' claims had merit, the court of appeals held the report failed to adequately explain how appellant-doctor breached the standard of care. Further, the expert report failed to adequately discuss how treatment would have prevented appellee's injuries requiring the trial court to make an impermissible inference. Accordingly, the trial court abused its discretion in denying appellants' motion to dismiss. The Physicians Association v. Tiscareno, El Paso Court of Appeals, Case No.: 08-15-00317-CV, 08/17/2016

08-15-00317-CV
STEVEN L. HUGHES, JUSTICE

Court of Appeals of Texas, Sixth Appellate District

Benjamin Robert Cain, III v. Texas, 06-15-00222-CR (TexApp Dist 08/18/2016)

A video recording taken with a small camera hidden on the person of confidential informant Dennis Boyd showed Boyd purchasing dihydrocodeine from appellant. Although Boyd died before appellant's trial on the charge of delivery of less than twenty-eight grams of a penalty group 3 controlled substance, the police sergeant testified to verify the video and to supply additional facts. On appeal, appellant asserted that the video was improperly admitted into evidence and that the evidence was insufficient to support his conviction. The court of appeals affirmed holding (1) the video was adequately authenticated, (2) the chain of custody of the drugs was adequately shown, (3) a violation of the confrontation clause was not adequately briefed, and (4) sufficient evidence supported appellant's conviction. The court of appeals further noted that there is no violation of the confrontation clause where a police officer sponsored the video of the drug buy and offered testimony about the events depicted in the recording. Watson v. State, 421 S.W.3d 186, 196 (Tex. App.—San Antonio 2013). Additionally, on the evidence presented at trial, a rational jury could have found all the elements of the charged offense beyond a reasonable doubt. Therefore, the trial court's judgment was affirmed. Benjamin Robert Cain, III v. The State of Texas, Texarkana Court of Appeals, Case No.: 06-15-00222-CR, 08/18/2016

06-15-00222-CR
JOSH R. MORRISS, III, CHIEF JUSTICE

United States Court of Appeals, Fifth Circuit

GlobeRanger Corporation v. Software AG United State of America, 15-10121 (5th Cir. 09/07/2016)

Appellee obtained a $15 million judgment in a trade secret misappropriation trial against competitor appellants. Appellants challenged that result on a number of grounds, but its principal argument was that appellee "finds itself in a jurisdictional Catch-22." It argued that appellee's trade secret claim was preempted by federal copyright law, but if not, then the result was no federal claim to support jurisdiction. Because the court found that the trade secret claim was not preempted but that a dismissed conversion claim was preempted and support federal jurisdiction, the court affirmed the judgment. The holding that the trade secret misappropriation claim was not preempted required the court to consider appellant's alternative jurisdictional out: that no federal question jurisdiction existed, so the case should have been remanded to state court. In light of the court's holding that the trade secret claim was not preempted, subject matter jurisdiction depended on whether some of the other, now-dismissed state law claims were completely preempted by the Copyright Act. Here, the complaint alleged only conversion of intangible property for which there was no equivalency between the rights protected under that state tort and federal copyright law, complete preemption converted the conversion claim into one brought under the Copyright Act that supported federal question jurisdiction. The judgment of the lower court was affirmed. GlobeRanger Corporation v. Software AG United State of America, Fifth Circuit, Case No.: 15-10121, 09/07/2016

15-10121
GREGG COSTA, CIRCUIT JUDGE

Court of Appeals of Texas, Eighth District

Ex Parte Erika Gonzalez, 08-15-00047-CR (TexApp Dist 08/10/2016)

In 2009, appellant was indicted on two counts of attempting to deliver a controlled substance. The state alleged that appellant sold cocaine and clonazepam to an undercover police officer. Upon the advice of trial counsel, appellant pled guilty to one count of the lesser offense of possessing a controlled substance and accepted deferred adjudication. On appeal, appellant argued two separate theories of ineffective assistance of counsel and that she did not enter into her plea knowingly and voluntarily because she did not speak English. The court of appeals affirmed holding appellant was not permitted to use any failure to give proper advice as to immigration consequences as a way to challenge her conviction in habeas as the current controlling case law was not yet released. Further, despite counsel representing both appellant and her husband, there was no conflict of interest as the parties were not codefendants charged with conspiracy or participating in the same drug delivery offense. The court of appeals additionally noted the trial court expressly found that appellant spoke English well enough to understand the nature of plea and therefore entered into such plea knowingly and voluntarily. Finally, the court of appeals held a reasonable juror would have convicted her in light of the evidence, and therefore the trial court's judgment was affirmed. Ex Parte Erika Gonzalez, El Paso Court of Appeals, Case No.: 08-15-00047-CR, 08/10/2016

08-15-00047-CR
YVONNE T. RODRIGUEZ, JUSTICE

Court of Appeals of Texas, Sixth Appellate District

Allstate Insurance v. Jordan, 06-15-00042-CV (TexApp Dist 07/29/2016)

Following an accident with an underinsured motorist, appellee sued appellant under her underinsured motorist benefits policy. Appellee sought to recover the damages she suffered that were in excess of the motorist's policy limits. The trial court entered a declaratory judgment establishing that appellant was entitled to an offset, limiting appellee's recovery to $3,110.60. Both parties appealed from the trial court's judgment. The court of appeals concluded the declaratory judgment was appropriate but appellee was not entitled to recover attorney fees. Specifically, the court of appeals stated that a declaratory judgment was an appropriate method of establishing the prerequisites to recovery in a UIM benefits case. However, appellee was not entitled to attorney fees at this stage of the case as she was required to "present a claim" to appellant who had thirty days in which to pay that "just amount owed." Tex. Civ. Prac. & Rem. Code §38. Additionally, the court of appeals held that factually sufficient evidence supported the jury's zero dollar damage award for past physical pain. Accordingly, the court of appeals modified the judgment by deleting the award of attorney fees and affirmed the trial court's judgment, as modified. Allstate Insurance Company v. Jordan, Texarkana Court of Appeals, Case No.: 06-15-00042-CV, 07/29/2016

06-15-00042-CV
RALPH K. BURGESS, JUSTICE