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COURT OF APPEALS OF TEXAS EIGHTH DISTRICT EL PASO

TEMPORARY ALTERNATIVES, INC., d/b/a dmDICKASON PERSONNEL SERVICES OF EL PASO, Appellant, v. MISTI K. JAMROWSKI, Appellee.

The appellant seeks to compel arbitration against a former employee who filed suit in district court. The agreement is illusory. By reserving itself the plenary power to unilaterally alter or terminate the agreement at any point prior to formal arbitration without allowing the appellee the opportunity to avail herself of the procedure to which she initially agreed, the appellant retained the power to avoid arbitration altogether. The trial court's denial of arbitration is affirmed. El Paso Court of Appeals, No. 08-13-00166-CV, 05-21-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

IN RE CLIFFORD HALL, Relator

The relator challenges a commitment order issued after his alleged failure to pay child support. The repeal of Texas Family Code §157.162(d), which was effective June 14, 2013, was retroactive as it applied to contempt hearings held on or after that date, rather than on actions filed after that date. On the dates that relator allegedly committed the acts of contempt (failing to pay the child support timely), he had the "affirmative defense" of payment. The repeal did not violate the relator's substantive protections in this case because relator had the ability to take advantage of that affirmative defense before its repeal. The relator's petition for writ of habeas corpus is granted with respect to a single alleged failure to make a payment, the remainder of the petition is denied. Houston's 14th Court of Appeals, No. 14-14-00062-CV, 05-28-2014

Practice Areas: Family Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In the Matter of: PLACID OIL CO., Debtor;JIMMY WILLIAMS, SR.; JIMMY WILLIAMS, JR.; DALTON GLEN WILLIAMS; JEANETTE WILLIAMS SHOWS; GWENDOLYN WILLIAMS PEACOCK, Individually and on Behalf of the Deceased, Myra Williams, Appellants v. PLACID OIL COMPANY, Appellee

The plaintiffs brought tort claims against a debtor in connection with the allegedly asbestos-related illness and death of a family member. The bankruptcy court granted the debtor's motion for summary judgment, and the district court affirmed. The law does not require that a creditor serve upon the debtor a formal complaint in order to make himself reasonably ascertainable or known. However, at a minimum, the debtor must possess specific information about a manifested injury, to make the claim more than merely foreseeable. Because a bar date notice need not inform unknown claimants of the nature of their potential claims, the debtor's notices were substantively sufficient to satisfy due process. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-11120, 05-27-2014

Practice Areas: Bankruptcy

COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT

IN RE COMMITMENT OF DAVID DODSON

The appellant challenges a civil commitment order. Conditions including restriction to a facility, where some temporary supervised trips are allowed, and the wearing of a leg monitor, are not necessarily punitive. Subjecting a person to ineffective treatments does not necessarily mean that the treatments are punishment. The Sexually Violent Predator statute is a civil statute that is not punitive. Therefore, the application of the SVP statute to the appellant does not violate the prohibition against the enactment of a retroactive law. The trial court's judgment is affirmed. Beaumont Court of Appeals, No. 09-13-00222-CV, 05-29-2014

Practice Areas: Constitutional Law

COURT OF APPEALS OF TEXAS EIGHTH DISTRICT EL PASO

MARRS AND SMITH PARTNERSHIP and RICKEY SMITH, Appellants/Cross-Appellees, v. SOMBRERO OIL AND GAS COMPANY, L.L.C., Appellee/Cross-Appellant.

This is a breach of contract action involving an oil and gas lease. The trial court did not err in awarding attorney's fees to the appellee sought pursuant to Texas Civil Practice and Remedies Code Chapter 38. Because the appellee pleaded that all conditions precedent had been met, the appellants were obligated to specifically deny that the appellee failed to present its contract claim as required by Chapter 38. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00372-CV, 05-16-2014

Practice Areas: Contracts

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BENJAMIN OROZCO, Plaintiff-Appellee, v. CRAIG PLACKIS, Defendant-Appellant.

The appellant owns a franchisor of restaurants. An employee, claiming violations of the Fair Labor Standards Act sued the owners of a franchise, who settled, and the appellant. The appellee failed to produce legally sufficient evidence to satisfy the economic-reality test and thus failed to prove that the appellant was his employer under the FLSA. The magistrate judge's denial of judgment as a matter of law is reversed and rendered. 5th U.S. Circuit Court of Appeals, No. 13-50632, 07-03-2014

Practice Areas: Labor and Employment

SUPREME COURT OF TEXAS

LUBBOCK COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT AND TOMMY FISHER, IN HIS OFFICIAL CAPACITY AS PRESIDENT OF THE BOARD OF DIRECTORS OF THE LUBBOCK COUNTY WATER CONTROL AND IMPROVEMENT DISTRICT, PETITIONERS, v. CHURCH & AKIN, L.L.C., RESPONDENT

The appellant, a water district, appeals the court of appeals' decision upholding the trial court's denial of its plea to the jurisdiction. The appellee alleges that the water district wrongfully terminated its lease of a marina. Although the lease generally prohibited the lessee from using the property for any purpose other than operation of a marina, the lessee did not agree to provide marina-operation services or any other goods or services to the governmental entity. Texas Local Government Code Chapter 271 therefore does not waive the governmental entity's immunity from suit, the lessee's claims for lack of jurisdiction are dismissed. Texas Supreme Court, No. 12-1039, 07-03-2014

Practice Areas: Contracts

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, ex rel. RENE SHUPE, Plaintiff - Appellee v. CISCO SYSTEMS, INCORPORATED; AVNET, INCORPORATED; CALENCE, L.L.C., also known as Insight Enterprises, Incorporated, Defendants - Appellants

The defendant telecommunication companies appeal of the denial of a motion to dismiss for failure to state a claim under the False Claims Act. The appellants contend that the FCA causes of action must be dismissed because the Universal Service Administrative Company is not a government body or funded with government dollars, and the alleged actions taken by defendants do not constitute false claims under the FCA. That the Federal Communications Commission maintains regulatory supervision over the E-Rate program -- administered by USCA -- does not affect Congress' decision, embodied in the program's independent structure, to externalize the cost of administering the program to a private entity. Because there are no federal funds involved in the program, and USAC is not itself a government entity, the government does not provide any portion of the requested money under the FCA. 5th U.S. Circuit Court of Appeals, No. 13-40807, 07-07-2014

SUPREME COURT OF TEXAS

PHILIP BOERJAN, MESTENA OPERATING, LLC, FORMERLY KNOWN AS MESTENA OPERATING, LTD., MESTENA INC., AND MESTENA URANIUM, LLC, PETITIONERS, v. J. JESUS RODRIGUEZ AND M. CARMEN NEGRETE, INDIVIDUALLY, AND AS CO-REPRESENTATIVES OF THE ESTATES OF NICOLAS LANDEROS-ANGUIANO, ANGELINA RODRIGUEZ-NEGRETE, AND CLAUDIA LAURA LANDEROS RODRIGUEZ, AND AS NEXT FRIENDS OF A.L.R., A MINOR, RESPONDENTS

After being confronted by a ranch employee, a trespassing driver fled at high speed. The vehicle rolled over, killing the family the driver was transporting. The family sued on claims including negligence and gross negligence. A land occupier owes only a duty to avoid injuring a trespasser wilfully, wantonly, or through gross negligence. Simply following a trespasser's truck is a far cry from the sort of objective risk that would give rise to gross negligence. The court of appeals' judgment is affirmed in part, reversed in part, and remanded to the trial court. Texas Supreme Court, No. 12-0838, 06-27-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Ex parte K.R.K.

The appellant appeals the trial court's denial of his petition for expunction of all records and files relating to his arrest. The appellate record contains a copy of the petition for expunction and no other pleadings. Allegations in a petition seeking expunction are not evidence. The state's appearance at the expunction hearing amounts to a general denial of the allegations in the petition. The trial court's order is affirmed. San Antonio Court of Appeals, No. 04-13-00470-CV, 06-25-2014

Practice Areas: Criminal Law