Decisions

Recent Decisions

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

PATRICK MICHAELSKI AND LYNDA MICHAELSKI, Appellants v. JOHN WRIGHT, PEGGY WRIGHT, GRANT DIETZ, AND REBECCA DIETZ, Appellees

A jury found against the appellants on their claim that their home was flooded by rain water from the appellees' property. The jury could have reasonably determined that a ditch existed between the two properties. Water that flowed into this ditch stopped being diffuse ground water; this is true regardless of whether the ditch was manmade or naturally existing. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00490-CV, 08-07-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

BAUER-PILECO, INC., Appellant v. HARRIS COUNTY APPRAISAL DISTRICT, Appellee

This is an ad valorem personal property tax case. A reviewing court may not look behind the appraisal roll to evidence that the taxpayer's own rendition statement was incorrect to determine whether "personal property" that reflected the taxpayer's own estimation of its taxable property was valued incorrectly in the appraisal roll because it included specific types of personal property, i.e., inventory and intangible "work in process" accounts, not subject to taxation in the taxing district. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00052-CV, 08-07-2014

Practice Areas: Internet Law , Taxation (Internet)

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

REGENIA BECHEM, Appellant v. RELIANT ENERGY RETAIL SERVICES, LLC AND COMERICA BANK, Appellees

The debtor appeals an adverse judgment in this garnishment action. A bank account does not qualify for the personal property exemption under Texas Property Code §42.001. The bank asserted in its answer that the debtor and her daughter have legal title to a joint account, raising the possibility This answer raises the possibility that the daughter has an equitable interest in the account, which cannot be seized in garnishment for the satisfaction of the debts. The trial court's judgment is reversed and remanded. Houston's 14th Court of Appeals, No. 14-13-00729-CV, 08-05-2014

Practice Areas: Banking and Financial Institutions

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

JAMALL ANDERSON, Appellant v. LARRY TRUELOVE AND BRADY ROBLES, Appellees

This is an interlocutory appeal from the trial court's denial of the appellant's application for a temporary injunction to enjoin the appellees Larry Truelove and Brady Robles from removing the appellant as the minister at West End Church of Christ. Applying neutral principles to the bylaws would not resolve the issues, because the bylaws contain no principles regarding termination of a minister. The trial court lacked subject-matter jurisdiction over this dispute under the ecclesiastical abstention doctrine. The trial court's judgment is vacated and judgment is rendered dismissing the case. Houston's 1st Court of Appeals, No. 01-13-00872-CV, 07-31-2014

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

ALICE M. WOOD AND DANIEL L. WOOD, Appellants v. HSBC BANK USA, N.A. AND OCWEN LOAN SERVICING, L.L.C., Appellees

Homeowners appeal the trial court's judgment in favor of a bank. Because a cure provision exists in the Texas Constitution, homestead liens that do not comply with the constitutional requirements are voidable. A declaratory judgment action to cancel a home-equity lien is not an action to recover real property, therefore the Texas Civil Practice and Remedies Code §16.051 four-year statute of limitations applies. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00389-CV, 07-31-2014

Practice Areas: Banking and Financial Institutions

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

LATISHA GUILLORY, Appellant v. CHRISTOPHER BOYKINS, Appellee

The appellant challenges the trial court's order modifying the parent-child relationship. The appellant's complaints regarding the appointment of an amicus attorney, made after the trial had occurred and the work of the amicus attorney was completed, was not timely. The trial court did not exceed its authority by appointing the father as the sole managing conservator because the issue was tried by consent. Because the underlying proceeding was not an enforcement proceeding pursuant to Texas Family Code Chapter 157, the trial court lacked the authority to deem attorney's fees as "additional child support" and to order them withheld from the appellant's earnings. The trial court's judgment is affirmed in part, reversed in part, and remanded. Houston's 1st Court of Appeals, No. 01-13-00475-CV, 08-05-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

AMERICAN NATIONAL INSURANCE COMPANY, Appellant v. THE CONESTOGA SETTLEMENT TRUST, the RE Family Trust and Shea Ungar a/k/a Hershey Ungar, Trustee of the RE Family Trust, Appellees

An insurance company appeals the trial court's order granting a request by the appellee to apply New York law to issues relating to the validity of a life insurance policy in the underlying suit. The laws of New Jersey, New York, and Texas conflict as to the issue of challenging the policy's validity based on the alleged lack of an insurable interest. Section 192 of the restatement favors application of New York law because the insured was a domiciliary of that interested jurisdiction. No other jurisdiction was shown to have a more significant relationship. The trial court's order is affirmed and judgment is rendered that New York law should apply. San Antonio Court of Appeals, No. 04-13-00719-CV, 07-30-2014

Practice Areas: Insurance Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

SIMULIS, L.L.C., Appellant v. GENERAL ELECTRIC CAPITAL CORPORATION, Appellee

The appellant, a software company, challenges an adverse summary judgment. The appellee could rely upon the appellant's interrogatory responses as affirmative proof against the appellant in support of the appellee's traditional motion for summary judgment under Texas Rule of Civil Procedure 166a(c). The standard does not require denial of a traditional summary judgment motion whenever evidence from a non-movant generally references unspecified documents. The trial court's summary judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00383-CV, 07-31-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

MORLOCK, L.L.C., Appellant v. NATIONSTAR MORTGAGE, L.L.C., Appellee

The appellant/plaintiff asserts that it has standing to challenge whether the defendant is the owner and holder of the promissory note and deed of trust and otherwise challenges summary judgment against him. an assignment of the Deed of Trust is not invalid because the assignment instrument is signed by MERS as nominee for the mortgagee and the mortgagee's successors and assigns, rather than by the mortgagee. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-01117-CV, 08-07-2014

Practice Areas: Banking and Financial Institutions

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Kenneth Mark DORROUGH, Appellant v. John Murray FAIRCLOTH and Helen Bowen, Appellees

This suit involves an incident between the appellant, a game warden, and the appellee. The common-law doctrine of official immunity extends to a deputy game warden. The trial court's order is reversed and vacated and the suit is dismissed with prejudice. San Antonio Court of Appeals, No. 04-13-00884-CV, 07-30-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Bretton Guy DAWKINS, Bradley Ken Dawkins, Jerry Howard Oxford and Sharon Ann Oxford, Appellants v. Madelon HYSAW, Kathryn Hysaw Weaver, Michael and Cindy Burris Family Partnership III, Ltd., Byron M. Burris, and Judith Ann Burris Dziuk, Appellees

The trial court granted the appellees' traditional motion for summary judgment that argued that a will provided for equal sharing of the testator's royalty interest. On de novo review, the appellate court concludes the will's plain language devised all her rights in the specified surface estate -- and its corresponding mineral estate -- to each surface estate devisee subject to the two fractional royalty interests-fixed fractions of 1/24 of production-reserved for the devisee's siblings. For two tracts, a 200 acre and 150 acre tract, each of the testator's children are entitled to share equally in any and all royalty earned from those tracts. The trial court's judgment is reversed and rendered. San Antonio Court of Appeals, No. 04-13-00539-CV, 07-30-2014

Practice Areas: Trusts and Estates

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Shawn Pierre LEE, Appellant v. The STATE of Texas, Appellee

The appellant challenges his conviction of alleged burglary of a habitation with the intent to commit aggravated assault. Because the appellant did not have permission to enter the apartment, regardless of whether the door was open or closed, the evidence supports the jury's determination that the entry was without the owner's effective consent. The trial court's judgment is affirmed.San Antonio Court of Appeals, No. 04-12-00316-CR, 07-30-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

The STATE of Texas, Appellant v. Ruben GARZA, Jr., Appellee

The state appeals the trial court's order granting appellee's Motion to Suspend Further Execution of Sentence. The state alleges that the motion was granted based on the erroneous entry of a nunc pro tunc judgment deleting a deadly weapon finding. There is no evidence in the original record that the trial court intended to enter a finding of no deadly weapon. The trial court acted to correct a judicial error when entering the nunc pro tunc judgment. The amended/nunc pro tunc judgment is vacated, and judgment is rendered reinstating the original judgment and sentence. San Antonio Court of Appeals, No. 04-13-00331-CR, 07-30-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

DENNIS HEINERT AND ALL OTHER OCCUPANTS, APPELLANTS v. WICHITA FALLS HOUSING AUTHORITY, APPELLEE

The appellant challenges the trial court's judgment evicting him from his leased residence operated and managed by appellee, a public housing agency. When deciding whether a person acted with the requisite intent to make a terrroristic threat, relevant evidence includes the choice of words, body language, and tone of voice; ending a telephone message with a pleasantry does not establish the lack of requisite intent. The appellant's accommodation request fails because he did not link his alleged disability, schizophrenia, with the alleged threats of violence to housing authority staff. The trial court's judgment is affirmed. Amarillo Court of Appeals, No. 07-13-00220-CV, 07-29-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Dave MCNEIL, Appellant v. The STATE of Texas, Appellee

The appellant contends the trial court erred in denying his motion to suppress. Although the statute permitting a blood draw when the DWI suspect allegedly has two or more prior DWI convictions is not unconstitutional per se, it does not permit a blood draw in the absence of a warrant or some well-recognized exception to the Fourth Amendment's warrant requirement. The transportation code's implied consent provision is not a permissible exception to the warrant requirement. The trial court's judgment is reversed and remanded. San Antonio Court of Appeals, No. 04-13-00415-CR, 08-06-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Armando SIMON, Appellant v. The STATE of Texas, Appellee

The appellant contends that because the appeal of the underlying conviction was pending, the trial court lacked jurisdiction to modify the conditions of his community supervision prior to receipt of the mandate, and therefore abused its discretion in revoking his community supervision. Given that the judgment was not final at the time the trial court modified the conditions of appellant's community supervision and therefore the community-supervision term had not yet commenced, the trial court lacked jurisdiction to modify a condition to add a requirement that the appellant attend alleged sex offender counseling. The trial court's judgment revoking community supervision is reversed and remanded. San Antonio Court of Appeals, No. 04-13-00292-CR, 07-30-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Antonio AVILES, Appellant v. The STATE of Texas, Appellee

On remand from the U.S. Supreme Court, the appellant challenges the denial of his motion to suppress. The only exception to the warrant requirement proposed by the state was Texas Transportation Code §724.012(b)(3)(B), the mandatory blood draw statute. Because this is not a permissible exception to the warrant requirement, and the state did not argue or establish a proper exception to the Fourth Amendment's warrant requirement, the blood draw violated the appellant's rights under the Fourth Amendment. San Antonio Court of Appeals, No. 04-11-00877-CR, 08-06-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

City of El Paso, Texas, Appellant v. Greg Abbott, Attorney General of Texas and Stephanie Townsend Allala, Appellees

A city appeals the denial of its plea to the jurisdiction in a case brought under the Texas Public Information Act. The city's jurisdictional evidence conclusively established that it was willing to supply the requested information and, to the extent that it located it or received it from the individuals named in the request, it actually had done so. That a former city councilman has public information on his private email account that he has not provided to the city, despite multiple official requests by the city that he do so, does not reflect that the city is unwilling to disclose that information as it is required to do so under the PIA. The district court's denial of the plea to the jurisdiction is reversed and a judgment of dismissal is rendered. Austin Court of Appeals, No. 03-13-00820-CV, 08-01-2014

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Texas Association of Psychological Associates, Appellant v. Texas State Board of Examiners of Psychologists and Texas Psychological Association, Appellees

The trial court denied the petition for declaratory judgment made by the Texas Association of Psychological Associates, finding that the challenged administrative rules requiring supervision of licensed psychological associates are a valid exercise of the Texas State Board of Examiners of Psychologists' authority. The Psychologists' Licensing Act vests the board with the authority to exercise broad discretion in its licensing standards. The contested rules requiring psychological associates to practice under supervision are in harmony with the act's general objective of protecting the public from unqualified practitioners of psychology and are consistent with the act's specific and broad delegation of authority to the board to set standards for the issuance of psychological associate licenses. The trial court's judgment is affirmed. Austin Court of Appeals, No. 03-11-00541-CV, 07-31-2014

Practice Areas: Labor and Employment

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

JOSHUA DIVIN, Appellant v. TRES LAGOS PROPERTY OWNERS' ASSOCIATION, Appellee

The trial court found against a property owner in his suit against an owner's association. The informal insertion of a trial court ruling in a different case (in which the appellant is not a party) without proper supplementation of the record is improper. To establish the defense of limitations, the appellant was required to prove when the cause of action accrued. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00124-CV, 08-07-2014

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

BYRON MORGAN, APPELLANT v. D&S MOBILE HOME CENTER, INC. AND SHAWN FULLER, APPELLEES

The appellant attempted to pierce the corporate veil of the appellee and hold its sole shareholder liable for damages awarded in a previous judgment against the corporation. In the prior case, the jury answered yes to questions about the corporation committing fraud and deceptive trade practices. The trial court entered judgment, though, only upon the deceptive trade practice findings. Entering the prior judgment on one theory does not automatically vitiate favorable findings encompassing alternative grounds of recovery. The shareholder did not establish as a matter of law that the manner in which the prior judgment was entered alone barred the appellant from pursuing his effort to pierce the corporate veil. The trial court's summary judgment is reversed and remanded. Amarillo Court of Appeals, No. 07-13-00263-CV, 08-01-2014

Practice Areas: Securities and Federal Corporate Law , Shareholder Derivative Suits

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI - EDINBURG

MARY ALICE PALACIOS, Appellant, v. THE STATE OF TEXAS, Appellee.

The appellant, a justice of the peace, was convicted of official oppression by allegedly intentionally or knowingly subjecting two persons to an arrest that she knew was unlawful. The state, in this case, could not prevail by merely showing that appellant lacked legal authority to act as alleged. The state had the additional burden of proving beyond a reasonable doubt that appellant knew that her acts were criminal, tortious, or both. All of the alleged acts involve appellant's discharge of official duties and her judicial interpretation of the applicable law. Appellant acted with a reasonable belief that her court had been granted jurisdiction to do the complained-of acts; therefore, she did not know that the act of signing the arrest warrants was unlawful, if it was. The judgment is reversed, the indictments dismissed, and a judgment of acquittal is rendered on each count. Corpus Christi Court of Appeals, NUMBER 13-11-00254-CR, 07-31-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Appellants, State of Texas' Agencies and Institutions of Higher Learning; Office of Public Utility Counsel; Steering Committee of Cities Served by Oncor; Oncor Electric Delivery Company, LLC; Alliance of TXU/Oncor Customers; Texas Industria [...] v. Appellees, Public Utility Commission of Texas; Office of Public Utility Counsel; Steering Committee of Cities Served by Oncor; Oncor Electric Delivery Company, LLC; Alliance of TXU/Oncor Customers; Texas Industrial Energy Consumers, Cross-A [...]

This is an administrative appeal from a final order of the Public Utility Commission increasing rates charged for electric transmission and distribution services by a utility. The district court's judgment is affirmed with respect to eight of 12 issues and reversed and remanded to the commission for further proceedings with respect to the following four issues: 1. whether the commission properly determined that the utility need not offer state colleges and universities a 20% discounted rate; 2. whether the commission properly excluded from the utility's reasonable and necessary expenses a portion of its requested franchise-fee payments; 3. whether the commission properly calculated the "lead-day" figure for the franchise-tax component of the utility's cash-working-capital allowance; and 4. whether the commission properly determined the utility's federal income-tax expense. Austin Court of Appeals, No. 03-11-00072-CV, 08-06-2014

Practice Areas: Energy and Natural Resources

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Hunt County Community Supervision and Corrections Department, Appellant v. Christina Gaston, Appellee

This is an appeal of a trial court order denying a plea to the jurisdiction in a whistleblower suit. The case concerns an initiative in which probation officers allegedly solicited donations of money and sports equipment from probationers in exchange for credit against the probationers' court-ordered CSR hours. The plaintiff's awareness that a district judge was empowered to administer probation terms and conditions against defendants in the 196th District Court is not evidence of an objectively reasonable belief that he was an appropriate law enforcement authority with respect to the reports of alleged violations of Texas Code of Criminal Procedure article 42.12 by probation office personnel. The district court's order denying the plea to the jurisdiction is reversed and the suit is dismissed. Austin Court of Appeals, No. 03-13-00189-CV, 08-06-2014

Practice Areas: Securities and Federal Corporate Law , Whistleblowing

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Green Tree Servicing, LLC, Appellant v. ICA Wholesale, Ltd. d/b/a A-1 Homes, Appellee

The appellant challenges the trial court's final judgment awarding damages and attorney's fees to the appellee for the appellant's alleged breach of the implied warranty of title in connection with its sale to the appellee of a used manufactured home. Texas law requires a disturbance of quiet possession for actionable breach of the warranty of title. While Texas Business Code §2.312(a) does not define "title," its use of the term, modified by the adjective "good," countenances legal ownership rather than a documentary record, especially since the statute applies to the sale of goods, which often as a matter of course do not have title certificates or similar documentation. The trial court's judgment is reversed and rendered that the appellee take nothing. Austin Court of Appeals, No. 03-12-00126-CV, 08-07-2014

Practice Areas: Business Entities

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ANGELICA LOPEZ SANCHEZ, Plaintiff - Appellee v. R. G. L., as next friend Alex Hernandez; S. I. G. L., as next friend Alex Hernandez; A. S. G. L., as next friend Alex Hernandez, Movants - Appellants

This is a panel rehearing addressing an appeal by three children who are natives of Mexico, who seek reversal of the district court's finding under the Hague Convention on the Civil Aspects of International Child Abduction that they were being wrongfully retained in the United States and should be returned to their mother. The government should be joined in this suit under Federal Rule of Civil Procedure 19. The jurisdictional challenge raised by the children is not mooted by Rule 19 joinder. The district court had jurisdiction over the mother's petition because the individual with physical custody over the children was a party. The district court's order is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 12-50783, 08-01-2014

Practice Areas: Family Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

DEPARTMENT OF TEXAS, Veterans of Foreign Wars of the United States; AMVETS DEPARTMENT OF TEXAS, INCORPORATED; AMVETS POST 52, INCORPORATED; AMVETS POST 52, AUXILIARY, INCORPORATED; THE GREAT COUNCIL OF TEXAS, Improved Order of Redmen; REDME [...] v. TEXAS LOTTERY COMMISSION; GARY GRIEF, Executive Director in His Official Capacity; SANDRA K. JOSEPH, Director of Charitable Bingo in Her Official Capacity; MARY ANN WILLIAMSON, Commissioner in Her Official Capacity; UNKNOWN COMMISSIONER IN [...]

The plaintiffs-appellees brought a first amendment challenge under 42 U.S.C. §1983 against the commissioners and two executive officers of the Texas Lottery Commission, the state agency responsible for bingo licensing and regulation. This is an en banc hearing of a panel majority reversing the district court's judgment that was in favor of the appellees. The political advocacy restrictions in the Bingo Act do not withstand strict scrutiny and are facially invalid. The district court's permanent injunction and summary judgment are affirmed. 5th U.S. Circuit Court of Appeals, No. 11-50932, 07-28-2014

Practice Areas: Constitutional Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

TROY THOMPSON, INDIVIDUALLY, AND AS HEIR TO THE ESTATE OF KEITH THOMPSON; TERESA THOMPSON, INDIVIDUALLY, AND AS HEIR TO THE ESTATE OF KEITH THOMPSON, Plaintiffs-Appellants, v. SHERIFF IRA A. MERCER; PALO PINTO COUNTY, TEXAS, Defendants-Appellees

The plaintiffs appeal summary judgment against them in their suit alleging excessive force. The use of deadly force is not unreasonable when an officer would have reason to believe the suspect poses a threat of serious harm to the officer or others. Firing an assault rifle directly into a fleeing truck created a significant - even certain - risk of critical injury to the driver. However, the risk was outweighed by the extreme danger to human life posed by the reckless vehicular flight. Law enforcement reasonably attempted alternate means of seizure before resorting to deadly force. The district court's summary judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-10773, 08-07-2014

Practice Areas: Civil Rights

COURT OF APPEALS OF TEXAS, THIRTEENTH DISTRICT, CORPUS CHRISTI - EDINBURG

IN RE PATRICIA ARNOLD, LAURA McLAUGHLIN, WILLIAM PRIDAY, AND KEVIN ROBBINS

The relators seek to compel city officials to comply with a referendum process. The relators seek referenda for the repeal of two sets of zoning amendments passed by the city council. Existing Texas law holds that the referendum process is not available to challenge individual zoning ordinances. The petition for writ of mandamus is denied. Corpus Christi Court of Appeals, No. NUMBER 13-14-00364-CV, 07-29-2014

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

U.S. BANK NATIONAL ASSOCIATION, Litigation Trustee of the Idearc, Inc., et al, Litigation Trust, Plaintiff Appellant v. VERIZON COMMUNICATIONS, INCORPORATED; GTE CORPORATION; JOHN W. DIERCKSEN; VERIZON FINANCIAL SERVICES, L.L.C., Defendants Appellees

A litigation trustee appeals orders and findings of the district court in the trustee's suit alleging fraudulent transfer claims. The litigation trustee does not have a right to a jury trial on a fraudulent transfer claim against a creditor when the creditor has filed a proof of claim in the bankruptcy proceedings and the bankruptcy court is required, before disposing of that claim, to determine whether, under 11 U.S.C. §502(d), property of the creditor is recoverable as a fraudulent transfer. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-10752, 07-30-2014

Practice Areas: Bankruptcy

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. MATTHEW JOSEPH MASSI, Defendant - Appellant

The district court denied the appellant's motion to suppress. Two separate requirements must be met for evidence to be admissible: 1. the prior law enforcement conduct that uncovered evidence used in the affidavit for the warrant must be "close enough to the line of validity" that an objectively reasonable officer preparing the affidavit or executing the warrant would believe that the information supporting the warrant was not tainted by unconstitutional conduct, and 2. the resulting search warrant must have been sought and executed by a law enforcement officer in good faith as prescribed by Leon. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-51063, 08-01-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JOE LOUIS REECE, Sui Juris in the interest of Joe Louis Reece Owner of Property Located at 1912 Morrison Drive, Fort Worth, TX 76112, Plaintiff - Appellant v. U.S. BANK NATIONAL ASSOCIATION, as Trustee Successor in Interest to Bank of America, National Association as Trustee, as Successor by Merger to Lasalle Bank National Association, Defendant - Appellee

The appellant challenges the dismissal of his wrongful foreclosure suit involving a promissory note and an associated Deed of Trust on property. The claim alleging fraud resulting from recordings denominating MERS as a beneficiary of the security instruments does not state a claim under Texas Civil Practice and Remedies Code §12.002, where the plaintiff fails to plead facts sufficient to allege that the defendant intended to cause the plaintiff physical injury, financial injury or mental anguish. MERS may assign a deed of trust to a third party and that such assignments confer the new assignee standing to non-judicially foreclose on property associated with that particular deed of trust. The district court's dismissal is affirmed. 5th U.S. Circuit Court of Appeals, No. 14-10176 Summary Calendar, 08-05-2014

Practice Areas: Banking and Financial Institutions

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

CLIFTON LAMAR WILLIAMS, Petitioner - Appellant v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

The district court rejected the applicant's petition for habeas relief. The Court of Criminal Appeals use of the Briseno framework to evaluate the applicant's claim was not an unreasonable application of federal law. The applicant can prevail on this argument that he is intellectually disabled only by showing that the jury's finding that he is not intellectually disabled was based upon an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. The certificate of appealability is denied. 5th U.S. Circuit Court of Appeals, No. 13-70015, 08-01-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JOHN B. JACUZZI, SR.; MARGARITA JACUZZI; JOHN B. JACUZZI, JR.; PATRICIA JACUZZI; JAMES JACUZZI, PlaintiffsAppellants v. ENRIQUE PIMIENTA, DefendantAppellee.

The plaintiffs launched a collateral attack on a related bankruptcy proceeding in federal district court under the Declaratory Judgment Act, claiming that they were never properly served before the bankruptcy court entered judgment against them and held them in contempt. Any judgment may be collaterally attacked if it is void for lack of jurisdiction. The other court's determination of personal jurisdiction is res judicata only if the defendant submitted to jurisdiction for the limited purpose of challenging jurisdiction and the issue was fully and fairly litigated. So long as the basis for the preliminary injunction or declaratory judgment is federal law, there is federal-question jurisdiction. The judgment of dismissal for want of subject-matter jurisdiction is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-41111, 08-05-2014

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. SHERMAN LAMONT FIELDS, Defendant - Appellant

The appellant unsuccessfully sought habeas relief in the district court on numerous grounds. The appellant raises numerous claims, including that his constitutional rights were violated by security measures at trial. Scrutiny of security practices must be balanced against the court's obligation to protect the court and its processes, and to attend to the safety and security of those in the courtroom. This balancing of competing interests is entrusted to the sound discretion of the trial court. A certificate of appealability is denied. 5th U.S. Circuit Court of Appeals, No. 13-70025, 07-30-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. LUIS FERNANDO CEDILLO-NARVAEZ, Defendant - Appellant

The appellant challenges his sentence stemming from an alleged conspiracy to kidnap a group of undocumented aliens. Because the status of the hostages was not included in the base offense level, we conclude that the district court did not plainly err in determining that the undocumented aliens were "vulnerable victims" under U.S. Sentencing Guidelines §3A1.1(b)(1) based on their illegal status. The application of a minor-victim enhancement was appropriate; a person alleged by the appellant to be a co-conspirator was not a charged co-conspirator in conspiracy to hostage taking. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-41214, 07-30-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

SALTY BRINE I, LIMITED, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.

The plaintiff appeals from the district court's determination that the transfer of certain overriding royalty interests through a complicated transaction was an invalid attempt to assign income. the district court had jurisdiction under the Tax Equity and Fiscal Responsibility Act to address every part of the royalty interest transaction, and ultimately to disregard the entire transaction, including the annuity sale, for tax purposes. A purported transfer of a royalty interest may still qualify as an assignment of income when the transferor retains control. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-10799, 07-31-2014

Practice Areas: Internet Law , Taxation (Internet)

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

AARRON JACOB MOORE, Appellant v. THE STATE OF TEXAS, Appellee

The appellant contends that the juvenile court improperly transferred the case to a criminal district court, because the state failed to show that it was not practicable to proceed in juvenile court before the appellant's eighteenth birthday for a reason beyond the state's control. Because "the state" includes law enforcement, a detective's heavy caseload and mistake as to the appellant's age are not reasons beyond the state's control. The juvenile court lacked jurisdiction to transfer the case to a criminal district court and, as a result, the criminal district court never acquired jurisdiction. The trial court's judgment is vacated and the case is dismissed for lack of jurisdiction., No. 01-13-00663-CR, 07-24-2014

Practice Areas: Family Law , Juvenile Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

STEPHEN J. HARPER, Appellant v. SPENCER & ASSOCIATES, P.C., Appellee

The appellant challenges the trial court's grant of a motion for scire facias to revive a dormant judgment. The writ of garnishment in this case satisfies the statutory requirement that it be a writ of execution. Unlike Stark, the record in this case shows that the trial court granted the writ of garnishment and the garnishment order was executed. Under modern rules, a "writ of execution," as used in context, can be read to encompass multiple specific forms of judicial enforcement of a judgment. Once the appellee executed the writ of garnishment on assets belonging to the appellant, the appellee was not required to undertake the further exercise of obtaining a writ of execution directly against the appellant to keep the original judgment from becoming dormant. The trial court's order is affirmed., No. 01-13-00706-CV, 07-24-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

DAVID T. MENDOZA, APPELLANT v. THE STATE OF TEXAS, APPELLEE

Because of problems compiling the record for this appeal, the appeal was abated for further investigation. New trial is appropriate when the missing portion of the record is necessary to the disposition of the appeal. The trial court's judgment is reversed and remanded for a new trial., No. 07-14-00034-CR, 07-28-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

DOUGLAS KARL KATZENBERGER, Appellant v. THE STATE OF TEXAS, Appellee

The appellant contends that the trial court abused its discretion in denying his motion for mistrial and instead issuing an Allen charge when the jury sent out a note indicating it was deadlocked after ten and one-half hours of guilt-innocence deliberations. The fact a jury has to weigh difficult testimony and determine witness credibility often implicates the need for longer deliberations and no abuse of discretion in denying a motion for mistrial. After receiving the Allen charge, the jury requested the court reporter read back three specific portions of testimony from different witnesses. These requests rationally indicated ongoing deliberation among the jurors after they had earlier reported their polarized opinions were "firm." The trial court's judgment is affirmed. No. 14-13-00583-CR, 07-29-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ROBERT EARL HUGHES, Petitioner - Appellant v. CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS, Respondent - Appellee

In this 28 U.S.C. §2254 habeas corpus case, the petitioner filed a notice of appeal from the magistrate judge's report and recommendation to grant the respondent's motion to dismiss. The report and recommendation of a magistrate judge is not a final order and does not fall into any of the other categories that would make it appealable. The appeal is dismissed for lack of jurisdiction. 5th U.S. Circuit Court of Appeals, No. 13-60805, 02-13-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In re: LAMARCUS MCGEE, Movant

The petitioner requests authorization from this court to file a successive 28 U.S.C. §2254 application. The petitioner has not shown that his proposed claims rely on a new rule of constitutional law made retroactive to cases on collateral review by the Supreme Court or a new factual predicate; consideration of previously asserted §2254 claims is precluded; assuming there is an actual innocence exception to the successive filing requirements, the petition brought forth no new evidence demonstrating actual innocence. The motion is denied. 5th U.S. Circuit Court of Appeals, No. 14-30391, 06-17-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BELLE COMPANY, L.L.C.; KENT RECYCLING SERVICES, L.L.C., Plaintiffs-Appellants v. UNITED STATES ARMY CORPS OF ENGINEERS, Defendant-Appellee

The appellant challenges a decision of the Corps of Engineers classifying a portion of the appellant's property as wetland. A jurisdictional determination is not reviewable final agency action under the Administrative Procedures Act. The district court's dismissal of this claim for lack of subject-matter jurisdiction is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-30262, 07-30-2014

Practice Areas: Environmental Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

LOUISIANA PUBLIC SERVICE COMMISSION, Petitioner v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent

The Louisiana Public Service Commission challenges the Federal Energy Regulatory Commission's interpretation of contractual language. the Louisiana Commission contends that FERC's interpretation of the System Agreement violates the FPA because it impermissibly subdelegates to state regulatory agencies its exclusive authority to regulate all aspects of bandwidth calculation. There is no unlawful subdelegation in this case because FERC exercised its role when it initially reviewed and accepted the bandwidth formula incorporating the state agencies' depreciation rates. FERC's interpretation of the system agreement is reasonable and consistent with the filed-rate doctrine. FERC's change of interpretation was not arbitrary. The Commission's challenge to an energy company's reversal of a transaction is an impermissible collateral attack to a prior order. The commission's petitions are denied in part and dismissed in part. 5th U.S. Circuit Court of Appeals, No. 13-60140 c/w No. 13-60141, 08-01-2014

Practice Areas: Energy and Natural Resources

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Alexander G. Fedorov, Appellant v. Cecilia Fedorov, Appellee

The trial court sustained the appellee's contests of the appellee's affidavit of indigence. The court's ruling on the contests was not within the period set for the hearing as Texas Rule of Appellate Procedure 20.1 requires, therefore the appellant's affidavit's allegations are deemed true. Additional findings are required for the appellant to obtain a free appellate record. The trial court's order is reversed to allow the appellant to proceed without advance payment of costs, and the appellant's motion for a free appellate record is denied. Austin Court of Appeals, No. 03-14-00430-CV, 07-25-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, TENTH DISTRICT, WACO

EX PARTE JOHN RAY FALK, JR.

The appellant challenges the trial court's denial of relief on his pretrial application for writ of habeas corpus and plea in bar brought to avoid retrial for capital murder. The trial court's decision to sua sponte allow a mistrial after a 55-day delay was not an abuse of discretion. The trial judge's initial comments on the evidence and proposed charge were not an acquittal or a final resolution of the charge issue on the state's Texas Penal Code §7.02(a)(2) theory of party liability. The trial court's order is affirmed. Waco Court of Appeals, No. 10-13-00233-CR, 07-24-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

CLINTON KEITH DAWSON AND BRANDY LAKE, Appellants v. WILL MATTHEW LOWREY, Appellee

The appellants challenge the trial court's judgment in this suit between children and step-children over the proceeds of a bank account. Under the Probate Code, the requirements for the creation of a right of survivorship to a joint account were that there be (1) a written agreement, (2) signed by the decedent, (3) which made his interest "survive" to the other party. The trial court erred in impliedly finding that the language utilized to set up the payable-on-death account did not comply with the probate code. Under the probate code and estates code, the principal may demand an accounting by the attorney-in-fact or agent, the details of which are outlined in the statute. In drafting this statute, the Legislature limited the right to demand an accounting under a durable power of attorney to the principal; it does not expand that right to persons who might have had the potential at one time to receive largess from the principal. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00107-CV, 07-29-2014

Practice Areas: Trusts and Estates

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

MICHAEL EARITT WHITE, Appellant v. THE STATE OF TEXAS, Appellee

The trial court ruled that the appellant was not indigent. A trial court should accept the defendant's evidence of indigency absent some reason in the record for not doing so. The record is insufficient that the appellant was financially able to employ counsel or to show that the appellant could afford the up-front payment costs for the appellate record. The court reporter and county clerk are ordered to prepare and file the reporter's record without the advance payment of costs. Texarkana Court of Appeals, No. 06-13-00110-CR, 07-28-2014

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

CELTIC MARINE CORPORATION, Plaintiff-Appellee, v. JAMES C. JUSTICE COMPANIES, INCORPORATED, Defendant-Appellant.

The district court allowed the appellee to reopen this case after the appellant allegedly failed to fulfill the terms of a settlement agreement. 28 U.S.C. §1292(a)(3) does not grant jurisdiction over the district court's Federal Rule of Civil Procedure 60(b) order. The district court did not finally determine the rights or liabilities of either party to this dispute. The course of conduct rule regarding acceptance of late payments applies only if the obligor is ready to pay but delayed only because of the impression, created by the obligee, that a late payment is acceptable. The appeal of the Rule 60(b) motion is dismissed and the district court's grant of summary judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-30712, 07-29-2014

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

GORDON POTTS; BRANDY WEST, PlaintiffsAppellants, v. CHESAPEAKE EXPLORATION, L.L.C., DefendantAppellee.

The district court correctly concluded that the appellee's calculation of royalties is consistent with the methodology for calculating market value at the wellhead explained in Heritage Resources Inc. v. NationsBank. The lessors argue that the lease does not simply prohibit deductions from a given value, but provides affirmatively that the royalty may not be "burdened" with any costs. The value of the lessors' royalty is a percentage of the market value at the point of sale, which in this case is at the well. A "net-back" method of calculation does not "burden" or reduce the value of the royalty. The lessee sold the gas at the wellhead. That is the point of sale at which market value must be calculated under the terms of the lessors' lease. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-10601, 07-29-2014

Practice Areas: Energy and Natural Resources

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JACKSON WOMEN'S HEALTH ORGANIZATION, on behalf of itself and its patients; WILLIE PARKER, M.D., M.P.H., M.Sc., on behalf of himself and his patients, Plaintiffs Appellees v. MARY CURRIER, M.D., M.P.H., in her official capacity as State Health Officer of the Mississippi Department of Health; ROBERT SHULER SMITH, in his official capacity as District Attorney for Hinds County, Mississippi, Defendants Appellants

The district court entered a preliminary injunction enjoining the enforcement of the admitting privileges provision of a Mississippi law regarding abortion facilities. The proper formulation of the undue burden analysis focuses solely on the effects within the regulating state. The plaintiff-appellee has demonstrated a substantial likelihood of success on its claim that H.B. 1390's admission-privileges requirement imposes an undue burden on a woman's right to choose an abortion in Mississippi, and is therefore unconstitutional as applied to the plaintiffs in this case. The injunction is affirmed as modified to apply only to the parties in this case. 5th U.S. Circuit Court of Appeals, No. 13-60599, 07-29-2014

Practice Areas: Constitutional Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MURCHISON CAPITAL PARTNERS, L.P.; ROBERT MURCHISON; DR. ALAN HULL, M.D.; BACK NINE INVESTMENTS, LIMITED; DOUGLAS KELLER; ET AL, Plaintiffs - Appellees v. NUANCE COMMUNICATIONS, INCORPORATED, Defendant - Appellant

This appeal arises from a suit to clarify an arbitration award concerning an alleged breach of a corporate merger agreement. The order here is distinguished from the order in Green Tree that directed the parties to arbitration and then dismissed the case with prejudice. Here, the district court did not dismiss the parties' case, nor did it vacate or confirm the award, but simply entered a judgment remanding the award for further clarification. The appeal is dismissed for lack of jurisdiction. 5th U.S. Circuit Court of Appeals, No. 13-10852, 07-25-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

In re Texas Education Agency and Michael L. Williams, Commissioner of Education for the State of Texas

This petition for writ of mandamus challenges orders that arose from a declaratory-judgment suit filed by certain charter schools against the Commissioner of Education for the State of Texas seeking to stop the administrative charter-revocation process. The district court's orders denying the commissioner's right to supersede the temporary injunctions were signed after the commissioner had appealed and invoked Texas Civil Practice and Remedies Code §51.014(b) to stay all other trial court proceedings in the cause below. Conducting hearings and signing the challenged orders denying supersedeas was an abuse of the district court's discretion because it violated the §51.014(b) automatic stay. The writ is conditionally granted. Austin Court of Appeals, No. 03-14-00420-CV, 07-18-2014

Practice Areas: Education Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

AEP Texas Commercial & Industrial Retail Limited Partnership, Appellant v. Public Utility Commission of Texas; Alliance for Retail Markets; Texas Energy Association for Marketers; CPL Retail Energy, LP; WTU Retail Energy, LP; and Direct Energy Business, LLC, Appellees

The Public Utility Commission adopted rules to regulate the entry of retail electric providers into the competitive retail electric market. The commission reasonably construed chapter 39 of the Texas Utilities Code and its own rules in determining that the proposed sharing of a common "name, trademark, brand, or logo" by an electric transmission and distribution utility and its competitive retail affiliate would amount to prohibited preferential joint promotion or joint advertising by those entities. The district court's judgment affirming the commission's final order is affirmed. Austin Court of Appeals, No. 03-13-00358-CV, 07-17-2014

Practice Areas: Energy and Natural Resources

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

BILLY JOE HERNANDEZ, Appellant v. THE STATE OF TEXAS, Appellee

The appellant argued that testimony during his punishment phase revealed newly discovered evidence that established a lack of serious bodily injury. The trial court denied his request to withdraw his guily plea. A court is deemed to have taken a case under advisement after each side has concluded presentation of the evidence on the subject of guilt, the defendant's guilt has been established, and the sole remaining issue is that of punishment. Because the trial court had already taken the case under advisement, it was within the court's sound discretion as to whether to allow the appellant to withdraw his guilty plea. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-14-00013-CR, 07-23-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

IN RE BRUCE CARRINGTON, RELATOR

The relator, in his fourth petition on the matter, seeks mandamus relief complains of the absence from the record on his direct appeal of the "real" jury communication with the trial court. The relator's contention that a jury note and a portion of the recorder's record are false entries is not supported by credible evidence. The petition is denied. Amarillo, No. 07-14-00250-CV, 07-16-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

JARED TYRELL STINECIPHER, APPELLANT v. THE STATE OF TEXAS, APPELLEE

The appellant challenges his convictions for accident involving personal injury or death and criminally negligent homicide. The prosecution under two indictments did not result in multiple punishments for the same offense under a double jeopardy analysis. The trial court's judgment is affirmed as modified to reflect correct court costs. Tyler Court of Appeals, No. 12-12-00428-CR, 12-12-00429-CR, 07-23-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

Texas Commission on Environmental Quality, Appellant v. Angela Bonser-Lain; Karin Ascott, as next friend on behalf of T.V.H. and A.V.H., minor children; and Brigid Shea, as next friend on behalf of E. B. U., a minor child, Appellees

This appeal arises from a suit filed by the appellees seeking judicial review of the Texas Commission on Environmental Quality's order denying their petition for rulemaking aimed at regulating greenhouse-gas emissions in Texas. Given the clear absence of a right to judicial review under the Administrative Procedure Act, Texas Water Code §5.351 does not provide a right to judicial review of a petition for rulemaking. The district court's judgment is vacated and a dismissal is rendered. Austin Court of Appeals, No. 03-12-00555-CV, 07-23-2014

Practice Areas: Environmental Law

COURT OF APPEALS OF TEXAS, THIRD DISTRICT, AUSTIN

In re David Miscavige and Religious Technology Center

The relators seek a writ of mandamus compelling the trial court to vacate its order directing a deposition of one of the relators -- a party -- and to conduct a hearing on the relators' special appearance motion. If an apex executive is named as a defendant based on his capacity as an executive, then the apex doctrine is implicated and the Crown Central standard should be applied to a request for his deposition. The writ is conditionally granted in part, and the trial court is ordered to vacate its order compelling the deposition. Austin Court of Appeals, No. 03-14-00091-CV, 07-17-2014

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

DENISE KITCHEN, Individually and as Representative of the Estate of Gregory Maurice Kitchen, Deceased, Plaintiff - Appellant [...] v. DALLAS COUNTY, TEXAS; UNKNOWN DALLAS COUNTY CORRECTIONAL OFFICERS; ANTHONY BENSON, Dallas County Detention Officer; DAVID GARRETT, Dallas County Detention Officer; GREGORY MYERS, Dallas County Detention Officer; DAVID ROBERTS, Dallas County Detention Officer; RENE GUZMAN, Dallas County Detention Officer; TA'MON HAGGERTY, Dallas County Detention Officer; OLLIE POLK [...]

In this suit against individual detention officers and a county, the district court concluded that the record contained insufficient evidence to create a genuine issue of material fact relating to the plaintiff's claims for either excessive force or deliberate indifference to the deceased's medical needs. Genuine disputes remain as to material facts relating to both the timing and the degree of force used. These genuine disputes affect a legal analysis of four of the five factors set forth in Hudson. The district court erred, therefore, when it granted the individual defendants' motion for summary judgment in its entirety. The district court's judgment is reversed and remanded in part, and affirmed in part. 5th U.S. Circuit Court of Appeals, No. 13-10545, 07-17-2014

Practice Areas: Civil Rights

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

AURELIO DUARTE; WYNJEAN DUARTE; S. D., A Minor, By and through Wynjean Duarte, acting as her Next Friend; BRANDI DUARTE, PlaintiffsAppellants v. CITY OF LEWISVILLE, TEXAS, DefendantAppellee

The appellants, a registered sex offender and his family, appeal the dismissal of their claim challenging the constitutionality of an ordinance prohibiting registered child sex offenders from residing within 1,500 feet of "where children commonly gather." The district court erroneously granted summary judgment for lack of standing because it conflated the actual-injury inquiry for standing purposes with the underlying merits of the appellants' constitutional claims. The appellants met the traceable and redressable requirements of standing; one could reasonably infer the reduction of available houses from potentially tens-of-thousands to 466 residences, of which only a handful were available to rent or purchase at a given time, is fairly traceable to the ordinance. A claim for nominal damages avoids mootness. The district court's judgment is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-40806, 07-22-2014

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

COASTAL AGRICULTURAL SUPPLY, INCORPORATED, Plaintiff - Appellant v. JP MORGAN CHASE BANK, N.A., Defendant - Appellee

The plaintiff brings this interlocutory appeal on two questions of law, whether of the Uniform Commercial Code § 3.405 can serve as an affirmative defense to a common law "money had and received" claim, and whether settlement credits in Texas reduce the nonsettling defendant's liability rather than the plaintiff's total loss. The conflict between the money had and received claim at common law and §3.405 can be resolved without entirely displacing the money had and received claim. The money had and received claim as applied in this situation must simply incorporate the affirmative defense provided by §3.405. The district court did not err in its determination that this affirmative defense could be so applied. The district court was correct in holding that the settlement credit should be applied to reduce the nonsettling defendant's liability, not the plaintiff's total loss. The district court's decisions are affirmed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-20293, 07-21-2014

Practice Areas: Commercial Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JOHN CALVIN HUMPHRIES, Plaintiff-Appellee v. ELLIOTT COMPANY, a Delaware Corporation, formerly known as Elliott Company, I, formerly known as Elliott Turbomachinery Company, Incorporated, formerly known as Elliott Holdings, Incorporated, formerly known as Elliott Company, Defendant-Appellant

The appellant challenges the district court's order remanding this action to Louisiana state court, and its order denying the appellant's motion for reconsideration. Where a party removes a case to federal court pursuant to 28 U.S.C. §1442, a later-served defendant preserves its right to a federal forum under §1442 by asserting the grounds for same in its answer filed after removal. Here, Elliott asserted its government contractor defense in the very first pleading it filed, such that it preserved its claim to a federal forum, and the district court erred in holding to the contrary. 5th U.S. Circuit Court of Appeals, No. 14-30182, 07-23-2014

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL ERIC WALLACE; DEREK LEE BLOCKER, Defendants-Appellants.

The appellants challenge their convictions on all counts of an indictment charging them with conspiracy to possess with intent to distribute 500 or more grams of methamphetamine. A prior conviction for narcotics possession or manufacture is probative to a defendant's intent when he is charged with conspiracy to distribute. By pleading not guilty, the appellants placed their knowledge and intent at issue and the prior convictions were probative of the appellants' familiarity with each other's involvement in the narcotics industry. The convictions and sentences are affirmed. 5th U.S. Circuit Court of Appeals, No. 12-51192, 07-18-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

RUSSELL SCOTT JONES AND WESTEX NOTREES, LP, Appellants/Cross-Appellees v. R.O. POMROY EQUIPMENT RENTAL, INC. D/B/A ROPER, INC., Appellee/Cross-Appellant

The appellants challenge the trial court's judgment finding them liable for alleged breach of rental agreements. The trial court did not err when it ruled that the agreements did not charge usurious interest because the usury laws do not apply to rental transactions. The judgment is affirmed as modified to correct the amount of prejudgment and postjudgment interest and remanded. Eastland Court of Appeals, No. 11-12-00167-CV, 06-30-2014

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

SHELBY DISTRIBUTIONS, INC. D/B/A EXPRESS OFFICE PRODUCTS, Appellant, v. ALEJANDRO RETA, Appellee.

The employer appeals the trial court's judgment in this alleged retaliatory discharge case. The appellant waived its complaint concerning the omission of a "discrimination" definition in the charge; the appellant neither requested a supplemental instruction nor tendered a substantially correct instruction to the trial court. Because the liability question submitted only a single theory of liability and the trial court did not otherwise instruct the jury to consider erroneous matters, the trial court did not err by submitting an invalid theory of liability. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-13-00193-CV, 07-09-2014

Practice Areas: Labor and Employment

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

ALICIA GONZALEZ AND ERNESTO GONZALEZ, and ALL OTHER OCCUPANTS OF 641 Milton Henry Avenue, El Paso, Texas, Appellants, v. WELLS FARGO BANK, N.A., Appellee.

The appellants challenge the trial court's grant of a writ of possession to a bank. While the appellants are correct that by filing an answer, they disputed the operative facts at issue and thereby placed the onus on the plaintiff to affirmatively prove the case laid out in its pleadings, by consenting to an agreed judgment under the terms of an agreed order and failing to convey withdrawal of consent, the appellants essentially stipulated to the fact-findings contained in the agreed judgment and waived their ability to challenge those fact-findings for legal and factual sufficiency. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00310-CV, 07-03-2014

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

RAINBOW GUN CLUB, INCORPORATED; LAKESIDE DEVELOPMENT COMPANY, INCORPORATED; DELLA MILLER BROUSSARD; REED JOSEPH MILLER; URSIN MILLER; ET AL, Plaintiffs Appellees v. DENBURY ONSHORE, L.L.C.; SPECTER EXPLORATION, INCORPORATED; SKH ENERGY PARTNERS, L.P., Defendants Appellants

Plaintiffs sued in Louisiana state court alleging that an energy company breached its duty to act as a reasonable and prudent operator of the well that was drilled under their leases. The energy company removed the case, but the district court remanded. The Class Action Fairness Act provides for federal jurisdiction over "mass actions." CAFA excludes federal jurisdiction over a state case that is primarily local and arises from "an event or occurrence." Although the exclusion applies in cases in which the single event or occurrence happens at a discrete moment in time, the single event or occurrence may also be constituted by a pattern of conduct in which the pattern is consistent in leading to a single focused event that culminates in the basis of the asserted liability. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 14-30514, 07-23-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

FRANCHESKA V. JAGANATHAN, Appellant v. THE STATE OF TEXAS, Appellee

The trial court denied the appellant's motion to suppress. Although the appellant was not "in the process of passing" another vehicle at the exact moment a State Trooper initiated the traffic stop, the State Trooper did not have reasonable suspicion that appellant committed the traffic violation of driving in the left lane without passing because a video showed appellant completing a passing maneuver in close proximity to the "Left Turn for Passing Only" sign and increasing the distance between her car and the car she passed; the video showed that a car merged into the middle lane, making it potentially unsafe for appellant to change lanes; the video showed that the State Trooper approached appellant at a high rate of speed, which could have caused her to slow down and hindered her ability to pass the white car in the middle lane; the video showed that the State Trooper followed appellant in the left lane for only two tenths of a mile; and the video showed that appellant was not impeding traffic or endangering other drivers' safety. The trial court's judgment is reversed and remanded. Houston's 14th Court of Appeals, No. 14-13-00356-CR, 07-08-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

DAVID LEE CRIFF, Appellant v. THE STATE OF TEXAS, Appellee

The appellant asserts that the testimony of complainant, the sole eyewitness, was insufficient to prove beyond a reasonable doubt that appellant knowingly and intentionally caused injury to an elderly person. The jury found that complainant was a credible witness despite conflicting testimony from witnesses regarding the specifics of the attack and testimony suggesting that complainant may have had dementia. The jury is the exclusive judge of the credibility of witnesses, the weight to be given to testimony, and is the exclusive reconciler of conflicts in the evidence. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00960-CR, 07-10-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

THE UNIVERSITY OF HOUSTON, Appellant v. JOHN CASEY, Appellee

A university argues that the trial court erred in denying its plea to the jurisdiction because the appellee did not satisfy the jurisdictional prerequisites to suit under the Texas Whistleblower Act. Making internal reports to employees responsible for internal compliance does not satisfy the Whistleblower Act's jurisdictional requirement that the report be made to an appropriate law enforcement authority. The trial court's denial is reversed and a dismissal is rendered. Houston's 1st Court of Appeals, No. 01-13-00684-CV, 07-03-2014

Practice Areas: Labor and Employment

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

SANDRA BREWER, Appellant v. COLLEGE OF THE MAINLAND, Appellee

The appellant sued her former employer, a college, contending it retaliated against her for filing a complaint of sexual harassment by her supervisor. Even assuming that the general questioning, threats, and isolation about which the appellant complains constituted adverse actions, the college would only be liable for them if supervisory or management personnel orchestrated the harassment of the plaintiff by other employees, or knew about the harassment and acquiesced in such a manner as to condone it. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00276-CV, 07-10-2014

Practice Areas: Labor and Employment

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

IN THE INTEREST OF T.K.D-H., a Child

A parent in this suit to modify the parent-child relationship argues that the trial court erred in its evidentiary rulings. The appellant's good cause or lack of surprise/prejudice arguments were not raised before the trial court, and providing the summary of an expert's report to opposing counsel was not sufficient to raise the arguments. The exclusion of the expert's testimony does not amount to a death penalty sanction; where, as here, the trial court applies Texas Rule of Civil Procedure 193.6's principle of automatic exclusion to an undesignated witness, and no basis for applying an exception is argued to the court, there is no abuse of discretion by the trial court in following the rule. The trial court's order is affirmed. San Antonio Court of Appeals, No. 04-13-00619-CV, 07-09-2014

Practice Areas: Evidence

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

ESTATE OF Paul Edward CHECK, Deceased

The appellant challenges the overruling, by operation of law, of his motion to dismiss a defamation counterclaim against him. Although there was no certificate of service on the counterclaim filed with the clerk's office, no officer's return, and no affidavit, there was evidence presented to the probate court to establish service of the original counterclaim on September 28, 2012. Although the appellant overcame the presumption, the trial did not err in finding service on that date. In the absence of new parties or claims, the deadline for filing a motion to dismiss runs from the date of service of the original legal action. The probate court's judgment is affirmed. San Antonio Court of Appeals, No. 04-13-00388-CV, 07-09-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

The STATE of Texas, Appellant v. Paul GUZMAN, Appellee

The trial court granted the appellee's motion to suppress. The trial court erred in finding the unavailability of the nurse who performed a blood draw violated the appellee's right to confront witnesses. The trial court's order is reversed and remanded. San Antonio Court of Appeals, No. 04-13-00840-CR, 07-09-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

CHARLES HEBERT AND TREASA ANTHONY, Appellants v. JJT CONSTRUCTION, JJT CONSTRUCTION INC., EMMANUEL D. WATSON D/B/A JJT CONSTRUCTION, GULF COAST CLAIMS SERVICE, WILLIAM "BILL" BROOKS AND UNDERWRITERS AT LLOYDS, LONDON, Appellees

The appellants filed a petition under Texas Rule of Appellate Procedure 28.3 seeking permission from this court for an interlocutory appeal under Texas Civil Practice and Remedies Code section 51.014(d) from an interlocutory order signed May 13, 2014, denying their motion for partial summary judgment. Because appellants have not shown that the trial court granted permission to appeal under Texas Civil Practice and Remedies Code §51.014(d), there is no basis for an appeal under this statute. The petition for permission to appeal is denied. Houston's 14th Court of Appeals, No. 14-14-00430-CV, 07-10-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, TWELFTH DISTRICT, TYLER

ROBERT FAIR, INDEPENDENT EXECUTOR OF THE ESTATE OF WILTON FAIR, DECEASED, AND BARTON WALKER FAIR, JR., APPELLANTS v. ARP CLUB LAKE, INC., JEANNE DAVIS, BOB DEHAAN, JAMES D. CARUTHERS, AND DON CARUTHERS, APPELLEES

Landowners appeal from an adverse summary judgment by which the trial court awarded possession of a tract to appellees. The trial court did not err in granting summary judgment on the Declaratory Judgments Act claim. When title and possession are at issue in a suit, trespass to try title is the exclusive remedy. Because the appellee did not prove its affirmative defenses, did not prove that it has any rights under a 1936 lease, and did not prove entitlement to possession of the land at issue as a matter of law, the trial court erred in granting the appellee's motion for summary judgment on the landowners' trespass to try title cause of action. The trial court's judgment is affirmed in part and reversed and remanded in part. Tyler Court of Appeals, No. 12-13-00053-CV, 07-09-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

WILLIAM R. AND SUSAN M. KNODERER, Appellants v. STATE FARM LLOYDS, PENNI PERKINS AND TOM ROBERTS, Appellees

The trial court granted a motion for sanctions against the appellants, homeowners in this insurance dispute. Sanctions are reviewed from the entire record, including the evidence, arguments of counsel, written discovery on file, and the circumstances surrounding the party's alleged discovery abuse. Sanctions should not be used to adjudicate the merits of a party's claims or defenses unless a party's hindrance of the discovery process justifies a presumption that its claims or defenses lack merit. The alleged destruction of data related to six allegedly fabricated photographs does not justify a conclusion that the homeowners' claims lack merit. The trial court's judgment is reversed and remanded. Texarkana Court of Appeals, No. 06-13-00027-CV, 07-10-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, NINTH DISTRICT, BEAUMONT

CENTERPOINT BUILDERS GP, LLC AND CENTERPOINT BUILDERS, LTD., Appellants v. TRUSSWAY LTD., Appellee

The trial court granted summary judgment as to the appellants's status as a seller, making it eligible to seek indemnity from the appellee, and and the granting of full summary judgment in favor of the appellant as to the appellee's cross-action against the appellant for indemnity. The appellant, a general contractor, is not entitled to indemnity as a seller. Although a company's installation services do not preclude it from being a seller, it is not broadly true that a contractor who installs a product is always a seller for purposes of Texas Civil Practice and Remedies Code Chapter 82. The appellant was not the manufacturer of an allegedly defective truss and, accordingly, is not obligated to indemnify the appellee. The trial court's judgment is affirmed in part, and reversed and remanded in part. Beaumont Court of Appeals, No. 09-13-00332-CV, 07-10-2014

Practice Areas: Appellate Law - Civil

SUPREME COURT OF TEXAS

IN RE FORD MOTOR COMPANY, RELATOR

A defendant estate was sued in Texas regarding a Mexican decedent's alleged responsibility for a car accident in Mexico. The estate and wrongful death beneficiaries filed claims against the petitioner. The petitioner failed to get the suit dismissed under forum non conveniens. Beneficiaries and decedents are distinct plaintiffs for purposes of the Texas-resident exception to the forum non conveniens doctrine. The petition for writ of mandamus is denied. Texas Supreme Court, No. 12-0957, 07-03-2014

Practice Areas: Appellate Law - Civil

SUPREME COURT OF TEXAS

ROSEMARIE PORRETTO AND RANDY W. WILLIAMS, AS CHAPTER 7 TRUSTEE OF THE BANKRUPTCY ESTATE OF SONYA PORRETTO, PETITIONERS, v. TEXAS GENERAL LAND OFFICE AND JERRY PATTERSON, IN HIS OFFICIAL CAPACITY AS TEXAS LAND COMMISSIONER, RESPONDENTS

The General Land Office refused to produce a letter disclaiming an ownership interest in certain beach property above the mean higher high water line. The trial court upheld the landowner's ownership of the beach property from the Galveston seawall to the MHHT line. After a bench trial, the court further declared the landowners to be the owners of the property seaward of the MHHT line, and held that the state's actions had resulted in a compensable taking. The petitioners are entitled to judgment settling their title only against the Land Commissioner, not against the GLO. Although the defendants' claims may impede the sale of the property, these claims do not rise to the level of a taking. The court of appeals' judgment dismissing the title claims and denying discovery sanctions is reversed, the judgment is otherwise affirmed and remanded. Texas Supreme Court, No. 12-0483, 07-03-2014

Practice Areas: Residential and Commercial Real Estate

SUPREME COURT OF TEXAS

BROOKSHIRE BROTHERS, LTD., PETITIONER, v. JERRY ALDRIDGE, RESPONDENT

The trial judge charged the jury with a spoliation instruction when a premises owner retained the requested portion of surveillance video footage of the plaintiff's fall, but allowed additional footage to be automatically erased. The court of appeals affirmed. To conclude that a party spoliated evidence, the court must find that (1) the spoliating party had a duty to reasonably preserve evidence, and (2) the party intentionally or negligently breached that duty by failing to do so. The court of appeals' judgment is reversed and remanded. Texas Supreme Court, No. 10-0846, 07-03-2014

Practice Areas: Evidence

SUPREME COURT OF TEXAS

GARY WAYNE JASTER, PETITIONER, v. COMET II CONSTRUCTION, INC., JOE H. SCHNEIDER, LAURA H. SCHNEIDER, AND AUSTIN DESIGN GROUP, RESPONDENTS

Texas Civil Practice and Remedies Code Chapter 150 requires "the plaintiff" in "any action or arbitration proceeding for damages arising out of the provision of professional services by a licensed or registered professional" architect, engineer, land surveyor, or landscape engineer to file a supporting expert affidavit with the complaint. Cross-claimants and third-party plaintiffs are not "the plaintiff" in an "action or arbitration proceeding." The court of appeals' judgment upholding the trial court's dismissal is affirmed. Texas Supreme Court, No. 12-0804, 07-03-2014

Practice Areas: Torts

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

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

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

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

THE ALABAMA-COUSHATTA TRIBE OF TEXAS, Plaintiff-Appellant, v. UNITED STATES OF AMERICA; THOMAS JAMES VILSACK, in his capacity as Secretary of the United States Department of Agriculture; SALLY JEWELL, in her capacity as Secretary of the United States Department of the Interior, Defendants-Appellees.

The appellant, a federally recognized Indian tribe, filed this action against the U.S. and various agencies claiming that the government breached its fiduciary duty under federal law to protect the land and natural resources subject to the aboriginal title of the tribe. The tribes complaint is structured as a blanket challenge to all of the government's actions with respect to all permits and leases granted for natural resource extraction on a significantly large amount of land covering several national parks in Texas. The allegations do not challenge specific agency action sufficient to trigger the sovereign immunity waiver from 5 U.S.C. §702. The district court's dismissal of the suit is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-40644, 07-09-2014

Practice Areas: Native American Law

SUPREME COURT OF TEXAS

UNION CARBIDE CORPORATION, PETITIONER, v. DAISY E. SYNATZSKE AND GRACE ANNETTE WEBB, INDIVIDUALLY AND AS REPRESENTATIVES AND CO-EXECUTRIXES OF THE ESTATE OF JOSEPH EMMITE, SR., JOSEPH EMMITE, JR., DOROTHY A. DAY, VERA J. GIALMALVA AND JAMES R. EMMITE, RESPONDENTS

The defendant in this asbestos-related injury suit asbestos-related injury suit appeals the denial of its motion to dismiss based on the plaintiffs' alleged failure to timely serve a statutorily compliant physician report. Both in context and in order to avoid nonsensical, absurd results, Texas Civil Practice and Remedies Code §90.010(f)(1) is read to require pulmonary function testing and its results to be relevant to the reporting physician's medical conclusions. The Legislature intended that the testing have some relevance to the physician's diagnosis of asbestos-related pulmonary impairment, such as by showing some level of pulmonary impairment, even though the testing results do not meet the §90.003 threshold. Forty-year-old tests that do not show some level of functional pulmonary impairment, or are not otherwise relevant to the diagnosis of functional pulmonary impairment, do not fulfill the requirements of §90.010(f)(1)(B)(ii). Chapter 90 and §90.010(f)(1)(B)(ii)'s pulmonary function testing requirement, as applied to the appellees, does not violate the Texas Constitution's prohibition against retroactive laws. The court of appeals' judgment is reversed and dismissal of the suit is rendered. Texas Supreme Court, No. 12-0617, 07-03-2014

Practice Areas: Torts

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

SHIRLEY DOUGLAS, Successor in Interest of Schwartz & Associates, P.A. and Interstate Fire & Casualty Company, PlaintiffAppellee, v. REGIONS BANK, DefendantAppellant.

An account holder signed her bank's arbitration agreement that contained a delegation provision. The two-part Qualcomm/Agere test demands that even if there is a delegation provision, the court must ask whether the averment that the claim falls within the scope of the arbitration agreement is wholly groundless. The judgment denying the motion to compel arbitration is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-60877, 07-07-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

TEWARI DE-OX SYSTEMS, INCORPORATED, Plaintiff Appellant v. MOUNTAIN STATES/ROSEN, LIMITED LIABILITY CORPORATION, Defendant Appellee

After invoking diversity jurisdiction to file suit in the district court, the plaintiff moved to dismiss for lack of subject matter jurisdiction. The district court denied the motion. A corporation's shareholders' citizenships are irrelevant to diversity jurisdiction under 28 U.S.C. §1332(c)(1); a corporation is the citizen of its principal place of business and place of incorporation. The district court's denial is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-50956 Summary Calendar, 07-09-2014

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In the Matter of: CHARLES E. HARRIS, III, Debtor;

The debtor filed a bankruptcy petition under Chapter 13, made regular payments from his wages to the trustee under a confirmed Chapter 13 plan, and eventually converted his case to Chapter 7. The district court held that payment funds in the possession of the Chapter 13 trustee that had not been distributed to creditors at the time of conversion must be returned to the debtor. The undistributed payments held by the Chapter 13 trustee at the time of conversion must be returned to the debtor or distributed to creditors pursuant to the Chapter 13 plan. The district court's order is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-50374, 07-07-2014

Practice Areas: Bankruptcy

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

LUMINANT GENERATION COMPANY, L.L.C.; ENERGY FUTURE HOLDINGS CORPORATION, Petitioners, v. UNITED STATES ENVIRONMENTAL PROTECTION AGENCY; GINA MCCARTHY, Administrator, United States Environmental Protection Agency, Respondents.

The operators of two power plants filed petitions challenging the legal sufficiency of the notice of violation issued by the Environmental Protection Agency under §7413(a) of the Clean Air Act. The EPA does not undertake final action when it issues a §7413(a) notice of violation. A notice does not itself determine the petitioners' rights or obligations, and no legal consequences flow from the issuance of the notice. Notices of violations do not share the finality of orders. Because the notices were not final actions of the EPA, the petitions are dismissed for lack of subject-matter jurisdiction. 5th U.S. Circuit Court of Appeals, No. 12-60694 Consolidated with No. 13-60538, 07-03-2014

Practice Areas: Environmental Law

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

CHARLES N. TAYLOR, JR., APPELLANT, v. DEE MARGO, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES AND MICHAEL WILLIAMS, IN HIS INDIVIDUAL AND OFFICIAL CAPACITIES, APPELLEES.

The appellee's filed a motion requesting that the court of appeals reconsider its denial of a motion to dismiss for want of jurisdiction. As distinguished from Thomas and Rainbow Group, this case does not involve two separately appealable interlocutory orders, but one order that expressly superseded an older one. Texas Rule of Appellate Procedure 25.1(g) contemplates that a notice of appeal might be defective due to mistakes or errors and information might be omitted from a notice of appeal and it specifically authorizes a party to file an amended notice of appeal to correct a defect or omission. The motion to reconsider is denied, and the appellant is ordered to file an amended notice of appeal correcting the date of the order he intends to appeal. El Paso Court of Appeals, No. 08-14-00066-CV, 06-25-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

WEST TEXAS EXPRESS d/b/a ROBERTS' TRANSPORTATION, INC., Appellant, v. PEDRO GUERRERO, Appellee.

An employer appeals the trial court's denial of its motion to compel arbitration of an employer's claims that resulted from an on-the-job injury. The employee argues that the plan is a contract of employment under the Federal Arbitration Act because the benefits were required under Texas Transportation Code §643.106. Section 643.106 does not require an employer to provide workers' compensation insurance coverage, and therefore does not require an employer to maintain a self-funded occupational benefit plan as a substitute for workers' compensation insurance coverage. Texas Labor Code §406.033(e) is inapplicable, as the employee did not actually waive his right to sue but merely agreed to a particular forum for resolution of his cause of action. The trial court's denial is reversed and remanded. El Paso Court of Appeals, No. 08-12-00307-CV, 06-25-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

THE STATE OF TEXAS, Appellant, v. ANDREW HOWARD LEE, Appellee.

After a jury was sworn, the appellee moved to strike the information "based on an invalid information." After reciting Texas Code of Criminal Procedure article 21.22 to the trial court, the appellee requested that the trial court take judicial notice that the police officer's supplemental report bearing the subheading "Complaint Affidavit" did not bear a magistrate's signature on the jurat. After noting that it had the referenced documents, the trial court granted the appellee's motion to dismiss the case and signed an order dismissing the case for want of jurisdiction. Because the presentment of the information vested the trial court with jurisdiction of this alleged misdemeanor case, the trial court erred in dismissing the case for want of jurisdiction. The trial court's order is reversed and remanded. El Paso Court of Appeals, No. 08-12-00323-CR, 06-25-2014

Practice Areas: Appellate Law - Criminal , Criminal Law

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

IN THE MATTER OF M.A.S., A JUVENILE.

A juvenile appeals the juvenile court referee's order of commitment to the Texas Juvenile Justice Department. A trial court is not required to exhaust all possible alternatives before committing a juvenile to the TJJD. The court did not act arbitrarily or without reference to guiding principles, and therefore did not abuse its discretion. The juvenile court's judgment is affirmed. El Paso Court of Appeals, No. 08-13-00085-CV, 06-25-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

DHS MANAGEMENT SERVICES, INC., DIAGNOSTIC HEALTH SERVICES, INC., MOBILE DIAGNOSTIC SYSTEMS, INC., AND JENNIFER ANN HJARPE, Appellants v. HEATHER CASTRO, Appellee

The appellants challenge the trial court's refusal to dismiss the plaintiff's claims of negligent entrustment and respondeat superior. The suit involves an accident that occurred involving a medical imaging van. The fact that the van was driving to a location to provide medical services when the accident occurred does not bring the appellant's claims within the scope of the TMLA when those medical services do not bear even indirectly on the claims being made. The trial court's order is affirmed. Dallas Court of Appeals, No. 05-13-01304-CV, 06-25-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

FRED VILLANOVA, Appellant, v. FEDERAL DEPOSIT INSURANCE CORPORATION, AS RECEIVER FOR HOME SAVINGS OF AMERICA, Appellee.

This suit involves the foreclosure of two homes. The appellee sought attorneys' fees for prosecuting its counterclaims for breach of contract and breach of the settlement agreement. Because of an incompetent affidavit, the appellee failed to prove damages. In order to recover attorneys' fees under Texas Civil Practice and Remedies Code Chapter 38 for prosecuting these types of counterclaims, a party must first prevail on the underlying claim and recover damages. The appellee was not entitled to summary judgment on its inferential rebuttal defense of sole proximate cause because it failed to conclusively prove this defense as a matter of law. Judicial admissions are not considered summary judgment proof, but rather a waiver of proof. The portion of the trial court's judgment awarding damages and attorneys' fees and granting summary judgment on HSOA's counterclaims and inferential rebuttal defense of sole proximate cause is reversed and remanded, in other respects the trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-11-00361-CV, 06-25-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

WINSTON ACQUISITION CORP, Appellant v. BLUE VALLEY APARTMENTS, INC., Appellee

In this suit involving the failed sale of an apartment complex, the appellant argues the trial court erred in its determination that it breached the contract and the appellee was entitled to recover the earnest money deposit and its reasonable attorney's fees. Taken as a whole, the contract reflects that a condition may be waived in writing, satisfied by performance, or deemed satisfied by a failure to object to non-performance. The contract section allowing written waiver of conditions is not by that interpretation rendered a nullity. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-13-00051-CV, 06-30-2014

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

AMERICAN HERITAGE CAPITAL, LP, Appellant/Cross-Appellee v. ALAN GONZALEZ, Appellee, and DINAH GONZALEZ, Cross-Appellant

The trial judge dismissed the appellant's claims, granting the appellee's motion under the Citizens Participation Act. The appellee claims that the order was a final judgment and the later entered final judgment is void. An order of dismissal is not a final judgment when a request for attorney's fees and sanctions remain pending, and the order reserves those matters for future litigation. Texas Civil Practice and Remedies Code §27.009(a)(1) permits a successful movant to recover attorneys' fees incurred in the defense of a cause of action even if the fees were incurred before the movant was actually sued. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-00892-CV, 07-01-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

ADDISON URBAN DEVELOPMENT PARTNERS, LLC, Appellant v. ALAN RITCHEY MATERIALS COMPANY, LC, Appellee

This appeal involves a dispute over a statutory construction materials lien. "Furnish," in Texas Property Code §53.021, in the context of furnishing materials for a specific job, involves supplying the materials and nothing more. The definitions in no way suggest that furnishing or supplying materials for a project equates to or entails actual use of such materials. Freight components of the final price were properly included in the lien price. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-13-00122-CV, 07-01-2014

Practice Areas: Commercial Law

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

IN THE INTEREST OF S.Y., A CHILD

The appellant challenges the termination of her parental rights. The appellant gave reasons for her failure to comply with the court's order requiring psychiatric evaluation and drug testing, including that she could not meet the identification and income requirements of the evaluation facility. Texas Family Code §161.001(1)(O) does not make a provision for excuses for a parent's failure to comply with the trial court's order. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-14-00011-CV, 06-27-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

CURTIS B. WISE, Appellant v. SR DALLAS, LLC, Appellee/Cross Appellant v. JERRY SPENCER, LP, Cross Appellee

This dispute arises out of the purchase of an adult entertainment club. An actual value measure of damages is frequently used in lieu of the fair market value measure to determine the value of restaurant and bar furniture and equipment, as well as other property with no readily ascertainable value. This case, however, was submitted to the jury without objection on a fair market value theory of valuation, not an actual value theory. A contract measure of damages, standing alone, is not an appropriate remedy for conversion. Damages for conversion are limited to the amount necessary to compensate the plaintiff for actual losses sustained as a natural and proximate result of the defendant's conversion. Further, there was no evidence of demand. The trial court's judgment on the conversion claim is reversed and render, the remainder is affirmed. Dallas Court of Appeals, No. 05-11-01697-CV, 06-30-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

BRETT SHIPP, Appellant v. DR. RICHARD MALOUF AND LEANNE MALOUF, Appellees

The trial court denied the plaintiff's plea to the jurisdiction and a motion to dismiss under the Texas Citizens Protection Act. The broadcast was a communication made in connection with an issue related to government efforts to curb Medicaid fraud and recover taxpayer dollars. Thus, it was an exercise of the defendant's right of free speech and the suit is based on, relates to, or was filed in response to the defendant's exercise of that right. A statement that a dentist is personally bankrupt does not adversely affect the dentist's fitness to practice dentistry -- he may be a great dentist but a bad businessman. Therefore, the false allegation of personal bankruptcy was not defamatory per se. The trial court's order denying the plea to the jurisdiction is affirmed, the order denying the motion to dismiss is reversed and rendered and remanded. Dallas Court of Appeals, No. 05-13-01080-CV, 06-24-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

IN THE INTEREST OF J.K.B. AND J.D.B., MINOR CHILDREN

The trial court denied the appellant's request for genetic testing and his request for termination of the parent-child relationship between him and two children. A man has been adjudicated to be the father of a child when a court finds in a divorce judgment that the man is the parent of the child as part of the court's resolution of issues affecting the parent-child relationship in the divorce proceeding. The appellant's uncontested verified petition alleging that a misrepresentation caused the appellant to believe that he was the childrens' biological father coupled with circumstantial evidence that a misrepresentation as to paternity was made constitutes a prima facie case for genetic testing under Texas Family Code §161.005(c). The trial court's judgment is reversed and remanded. Houston's 1st Court of Appeals, No. 01-13-00629-CV, 06-26-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

ARROW MARBLE, LLC, ARROW MIRROR AND GLASS, INC, AND EQUICAP INVESTMENTS, LLC, Appellants v. ESTATE OF RODNEY B. KILLION, Appellee

A Texas Theft Liability Act claim brought by an estate against the appellant was dismissed with prejudice for want of prosecution. The appellant had counterclaims pending against the estate at the time of dismissal. The phrase "prevailing party" in TTLA §134.005(b) includes both a plaintiff successfully prosecuting a theft suit and a defendant successfully defending against one. A prevailing party is entitled to reasonable fees even if the party is unsuccessful on other claims and counterclaims litigated in the same suit. A defendant prevails if the plaintiff's claim is dismissed with prejudice. The trial court's judgment denying attorney's fees is reversed and remanded. Houston's 1st Court of Appeals, No. 01-12-01133-CV, 07-01-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

TOWN & COUNTRY SUITES, L.C., Appellant v. HARRIS COUNTY APPRAISAL DISTRICT, Appellee

This is an appeal from a property valuation dispute between an appraisal district and a property owner. Texas Tax Code §42.21(h) grants a trial court subject matter jurisdiction over a suit appealing an Appraisal Review Board decision as long as the suit meets the property identification and filing requirements contained in §42.21(h), even if the petition misidentifies the property owner and must be corrected through amendment. The trial court's grand of a plea to the jurisdiction is reversed and remanded. Houston's 1st Court of Appeals, No. 01-13-00869-CV, 07-01-2014

Practice Areas: Taxation

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

KATY VENTURE, LTD. & KATY MANAGEMENT, L.L.C., Appellants v. CREMONA BISTRO CORP., Appellee

The appellant challenges the trial court's summary judgment on its equitable bill of review and the denial of the motion for new trial. The appellant failed to raise a genuine issue of material fact on the requirement of reasonable diligence in attempting to serve the appellant in person. The return explained the cause of the process server's failure to accomplish the service. An email from the appellee to its process server supports the conclusion that the appellee met its obligations to attempt service. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-13-00048-CV, 06-30-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

ALLSTATE INDEMNITY COMPANY, Appellant v. MEMORIAL HERMANN HEALTH SYSTEM, Appellee

An insurer challenges the trial court's grant of a plea to the jurisdiction to the appellee, a hospital. The insurer paid a patient on behalf of its insured to settle the patient's claims against the insured. The hospital had filed a lien that was not dismissed or discharged. The insurer has standing to request declaratory relief concerning its rights to contest the charges for services reflected on the lien. The trial court's ruling is reversed and remanded. Houston's 14th Court of Appeals, No. 14-13-00307-CV, 06-26-2014

Practice Areas: Insurance Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

UNITED NATIONAL INSURANCE COMPANY, Appellant v. AMJ INVESTMENTS, LLC, Appellee

A building was damaged in a hurricane. A jury found that the insurer failed to pay the full amount due and awarded compensatory damages. The insurer argues, inter alia, that the evidence is legally and factually insufficient to support the award of compensatory damages because everyone who offered an opinion about the amount that it should pay relied on estimates prepared on the Xactimate software program, and no one testified that these amounts represented the reasonable and necessary costs to repair or replace damaged property. The jury was not asked to find the reasonable and necessary cost of repair, both sides relied on the software, and there is evidence the parties agreed that the costs of repair or replacement would be the amount as calculated in a particular Xactimate estimate. The evidence is legally sufficient. The trial court's judgment is affirmed as modified to correct the amount of interest, and reversed and remanded with instructions to retry the issue of attorney's fees. Houston's 14th Court of Appeals, No. 14-12-00941-CV, 06-26-2014

Practice Areas: Insurance Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

BOMA O. ALLISON, Appellant v. SERVICE LLOYDS INSURANCE COMPANY, Appellee

A workers' compensation carrier asserted that it was entitled to receive the full amount of a settlement with a third party obtained by the claimant's attorney, without paying the attorney any amount as attorney's fees or expenses. The "first money" doctrine does not preclude the claimant's attorney from recovering any attorney's fees or expenses under Texas Labor Code §417.003. The carrier's failure to retain an attorney until shortly before the statute of limitations ran on the third-party claim does not bar the requests by the claimant's attorney for attorney's fees under subsections (a) and (c) of §417.003. The trial court's summary judgment is reversed and remanded. Houston's 14th Court of Appeals, No. 14-13-00214-CV, 07-01-2014

Practice Areas: Insurance Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

RONIE WAYNE SMITH, Appellant v. THE STATE OF TEXAS, Appellee

The appellant was convicted of alleged aggravated sexual assault of a child less than 14 years old. The appellant challenges the admissibility of a misdemeanor conviction for indecent exposure that was more than 10 years old. Subsequent convictions for felonies or misdemeanors involving moral turpitude can remove the taint of remoteness from the prior convictions by showing a lack of reformation, therefore the "outweigh" standard of Texas Rule of Evidence 609(a) appies. Indecent exposure is a crime of depravity, whereas aggravated sexual assault of a child is a crime of violence. Although both crimes involve sexual elements, they are not so similar as to weigh in favor of exclusion of the indecent exposure conviction. The trial court's judgment is affirmed as modified to correct the spelling of the appellant's name and to reflect mandatory costs of court. Houston's 1st Court of Appeals, No. 01-12-00485-CR, 06-30-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

JESSICA BRIONES, Appellant v. BRAZOS BEND VILLA APARTMENTS, Appellee

The appellant, an apartment tenant, appeals a forcible detainer judgment. The property owner was required to wait until expiration of the period for her to respond to the "Notice of Proposed Termination of Occupancy" before giving the statutory notice to vacate. Failure to object to admission of the "Notice of Proposed Termination of Occupancy" does not preclude the complaint that the property owner did not give the separate statutory notice. The portion of the judgment awarding attorney's fees and costs is reversed and rendered, the portion awarding possession to the property owner is dismissed for lack of jurisdiction. Houston's 14th Court of Appeals, No. 14-12-01125-CV, 07-01-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

HOKE HENRY EBERHARDT, Appellant v. THE STATE OF TEXAS, Appellee

The appellant pleaded guilty to two offenses before a jury. The appellant argues that, in a unitary proceeding, the trial court must instruct the jury to find the defendant guilty as part of the punishment charge. A finding of guilt was not required when appellant pleaded guilty to the jury. The trial court's judgments are affirmed. Houston's 14th Court of Appeals, No. 14-13-00936-CR, No. 14-13-00937-CR, 06-26-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

MINDI M., INDIVIDUALLY AND AS NEXT FRIEND OF S.M., A CHILD, Appellant v. THE FLAGSHIP HOTEL, LTD, FLAGSHIP HOSPITALITY, INC., INDIVIDUALLY AND D/B/A FLAGSHIP HOTEL, Appellees

The appellant sued a hotel alleging her minor son was sexually abused in the hotel by a member of the hotel's staff. The Hotel did not perform any sort of pre-employment background check in this case. Instead, it relied solely on the recommendation of another employee when it hired the alleged perpetrator, a bellman. The hotel suggests that it acted reasonably because the industry standard only requires background checks on upper level employees, such as managers. This is a question of fact for the jury to decide. The trial court's summary judgment is reversed and remanded as to the claim for negligent hiring, retention, and supervision. Houston's 14th Court of Appeals, No. 14-13-00515-CV, 06-26-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

JAMES OTIS O'BRYANT, Appellant v. THE STATE OF TEXAS, Appellee

The appellant was convicted of of two counts of alleged aggravated sexual assault of a child. The trial court refused to grant a mistrial on the grounds the jury began deliberating the case prior to being charged. The terms "outsider" and "unauthorized person," as they relate to Texas Code of Criminal Procedure Article 36.22, do not include other jurors. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00651-CR, NO. 14-13-00652-CR, 06-26-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Mark A. CANTU, Appellant v. GUERRA & MOORE, LLP, Carlos Guerra, J. Michael Moore, and David Lumber, Appellees

Summary judgment on the appellant's allegations of extrinsic fraud was improper. The summary judgment evidence raises genuine issues of material fact on whether appellees' alleged deceptions prevented the appellant from presenting any claims or defenses on the specific plans, actions, and evidence of conspiracy, bribery, perjury, and coercion allegations he raised by his petition; whether he could have reasonably discovered these matters before trial or appeal; whether any claim or defense was, could have been, or should have been presented to and considered by the fact-finder in rendering judgment; and whether the judicial process was distorted to such an extent that confidence in the ability to discover the fraudulent conduct through the regular adversarial process was undermine and the appellant was denied the opportunity to fully litigate at trial all the rights or defenses that could have been asserted. The trial court's judgment is reversed and remanded. San Antonio Court of Appeals, No. 04-13-00213-CV, 06-25-2014

Practice Areas: Appellate Law - Civil

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

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Cesar PEREZ, Appellant v. The STATE of Texas, Appellee

A jury found the appellant guilty of alleged aggregated theft of property valued between $1,500 and $20,000 by a public servant pursuant to one scheme or continuing course of conduct. Non-accomplice evidence may be direct or circumstantial, and must simply link the accused in some way to the commission of the crime, such that rational jurors could conclude this evidence sufficiently tended to connect appellant to the offense. The "tends-to-connect" standard does not present a high threshold. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-13-00758-CR, 07-02-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Juan RODRIGUEZ, Appellant v. The STATE of Texas, Appellee

The appellant was found guilty of multiple counts of alleged aggravated sexual assault and indecency with a child. The evidence supports the conclusion that the jury unanimously agreed that the appellant committed the alleged conduct in each of the five counts contained within the court's charge. This determination is further supported by the fact that each juror signed each verdict form affirming their vote that the appellant was guilty of the offense as charged in the corresponding count of the indictment. Even if the submitted charge was error, the appellant did not suffer egregious harm or was denied a fair and impartial trial. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-13-00081-CR, 07-02-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Jesus CARDOSO, Appellant v. The STATE of Texas, Appellee

A jury convicted the appellant of ten counts of cruelty to animals. Although the affidavit in support of the search warrant did not include specific dates or times when complaints were made, the information contained in the affidavit was sufficient to permit the magistrate to infer a definite outer time limit for when the events giving rise to probable cause occurred. The magistrate could have inferred that 180 complaints made to the police and code compliance in 2009 was sufficient to demonstrate an ongoing, continuous course of complaints regarding the general condition of the premises. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-13-00661-CR, 07-02-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Brittany Marie NELSON, Appellant v. The STATE of Texas, Appellee

The appellant contends the trial court erred in including a synergistic effect instruction -- authorizing the jury to convict based on the synergistic effect of combining alcohol and drugs -- in the court's charge. Some evidence raised the issue of a synergistic relationship between the appellant's medications and alcohol. The charge required that the jury find intoxication due to the appellant's alleged consumption of alcohol, not Adderall or her other medication. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-13-00276-CR, 06-25-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Egna Bishop VILLARREAL, Appellant v. Guillermo Gonzalez GUERRA, Appellee

The trial court found in favor of the appellee on his claim that he owned, by adverse possession, a 266-acre tract of land in Starr County. Possession of land following a verbal gift is generally regarded as hostile from its inception and indicates an intent to take the land as an owner. Possession of land following a verbal gift is adverse and not permissive because such a gift violates the statute of frauds and is unenforceable. The portion of the trial court's judgment awarding attorney ad litem fees is reversed and remanded, the remainder of the judgment is affirmed. San Antonio Court of Appeals, No. 04-13-00522-CV, 07-02-2014

Practice Areas: Residential and Commercial Real Estate

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

The STATE of Texas, Appellant v. Christopher Glen ADAMS, Appellee

The state appeals the trial court's grant of a motion to suppress. The trial court's findings do not include essential facts necessary to resolve the legal issues raised on appeal. The appeal is abated and remanded to the trial court for more specific findings of fact and conclusions of law. San Antonio Court of Appeals, No. 04-13-00048-CR, 06-25-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

DANIEL ANACLETO CARDON, APPELLANT v. THE STATE OF TEXAS, APPELLEE

The appellant challenges his conviction. The denial of an objection to an improper abstract proposition of law that is in the instruction portion of the charge but not made a part of the application paragraph is not error. The appellant argues that the trial court's inclusion of the mandatory sentencing requirement of an adult individual convicted of capital murder to life in prison without the possibility of parole amounted to a comment on the evidence. If error, the instruction was improper because it was simply unnecessary and did not provide any clarification of an element of the offense at issue. Such error was harmless. The trial court's judgment is affirmed. Amarillo Court of Appeals, No. 07-13-00182-CR, 06-26-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

BANNUM, INC. AND CHRISTOPHER TOVAR D/B/A TOVAR CONSTRUCTION COMPANY, APPELLANTS v. EUGENE MEES D/B/A ENCORE HOUSE, APPELLEE

Bannum, Inc. contracted with Eugene Mees to buy the latter's building, contingent upon Bannum winning a bid with the Bureau of Prisons. The BOP terminated the project and Bannum and Mees sued each other for breach of contract and other causes of action. The trial court erred in granting summary judgment against Bannum's claims alleging negligent misrepresentation or concealment and deceptive trade practice. Mees argued he did not cause the damages alleged because Bannum failed to purchase the property on the closing date. There is some evidence of record indicating that through renegotiation or otherwise, Bannum retained a contractual right to buy the property after that date. That portion of the trial court's judgment is reversed and remanded, the remainder is affirmed. Amarillo Court of Appeals, No. 07-12-00458-CV, 06-24-2014

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

PATRICK R. COX, APPELLANT v. THE STATE OF TEXAS, APPELLEE

The appellant challenges the trial court's judgment involving his alleged personal liability in this public enforcement action alleging false, misleading, and deceptive trade practices by a tax resolution company. No Texas court has applied the federal "guiding spirit" doctrine to hold an individual liable under the DTPA for actions taken by a corporation. Because the state did not obtain a finding that would allow the corporate veil to be pierced, for the appellant to have been found personally liable, the evidence had to establish that the appellant personally violated the DTPA. The portion of the trial court's judgment relating to the appellant is reversed, and judgment is rendered denying any recovery of restitution, civil penalties, or attorney's fees against the appellant individually. Amarillo Court of Appeals, No. 07-12-00453-CV, 07-01-2014

Practice Areas: Torts , Business Torts

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

CHAD WILLIAM MURRAY, APPELLANT v. THE STATE OF TEXAS, APPELLEE

The appellant challenges his conviction for allegedly driving while intoxicated. The appellant was found asleep in a running truck while parked off the roadway and mainly in a private driveway. While one can infer that someone had to have driven the truck there, there is no evidence as to when or whether the person was inebriated at the time. The trial court's judgment is reversed and a judgment of acquittal is rendered. Amarillo Court of Appeals, No. 07-13-00356-CR, 06-26-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

LIONEL GONZALES, Appellant v. THE STATE OF TEXAS

The court of appeals on remand found that the appellant's right to a speedy trial was violated. the state's unexplained six-year delay constitutes negligence that has compounded appellant's presumptive prejudice over time. The finding that appellant knew about the outstanding charges cannot be supported only by information regarding appellant being booked for evading arrest, which was presented in closing arguments by the State without personal knowledge. The court of appeals' judgment is affirmed and the indictment is dismissed with prejudice. Court of Criminal Appeals, No. PD-1313-13, 06-25-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

RICHARD LEE RABB, Appellant v. THE STATE OF TEXAS

The court of appeals reversed the appellant's conviction of alleged tampering with physical evidence. While there is some overlap between the terms "conceals" and "destroys" for purposes of Texas Penal Code §37.09(a), no rational trier of fact could have found that appellant destroyed the evidence in this case. The case is remanded for consideration of reformation of the conviction pursuant to Thornton rather than acquittal. Court of Criminal Appeals, No. PD-1643-12, 06-25-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

JERRY PAUL LUNDGREN, Appellant v. THE STATE OF TEXAS

The appellant pleaded guilty to allegedly driving while intoxicated pursuant to a plea-bargain agreement and waived his right to appeal. After a second arrest, the appellant filed a motion for new trial and a notice of appeal in his first case. The trial court revoked the appellant's community supervision. The appellant's filing of a timely and effective motion for new trial retroactively stayed the commencement of his community supervision until it was overruled by operation of law. The court of appeals' judgment is reversed and remanded. Court of Criminal Appeals, No. PD-1322-13, 06-25-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

CHARLES RAY OWENS, JR., Appellant v. THE STATE OF TEXAS, Appellee

The appellant was found guilty of alleged felony murder. The sole evidence against the appellant's claim of incompetence was the testimony of a witness who did not meet the statutory qualifications for that determination. A fatal flaw in the determination of the appellant's competence to stand trial renders anything that occurred during the ensuing trial moot. The trial court's judgment is reversed and remanded. Texarkana Court of Appeals, No. 06-13-00199-CR, 06-27-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

BOBBY GLENN CANIDA, APPELLANT v. THE STATE OF TEXAS

The state petitioned for review of the court of appeals' decision to render a verdict of acquittal instead of reforming the conviction to a lesser-included offense. The court of appeals should reconsider in light of Thornton, which requires answers to two questions: 1. in the course of convicting the appellant of the greater offense, must the jury have necessarily found every element necessary to convict the appellant for the lesser-included offense; and 2. conducting an evidentiary sufficiency analysis as though the appellant had been convicted of the lesser-included offense at trial, is there sufficient evidence to support a conviction for that offense? The case is remanded to the court of appeals. Court of Criminal Appeals, No. PD-0003-13, 06-25-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

SYLVESTER KELLY, Appellant v. THE STATE OF TEXAS

The appellant filed a petition for discretionary review arguing that the court of appeals violated his rights to due process and due course of law by deeming his appeal to be frivolous without first granting him access to the appellate record so that he could prepare an adequate response to his appointed counsel's Anders brief. Appointed counsel has a duty, once he has filed a motion to withdraw from representation with accompanying Anders brief, to assist the appellant in filing a motion in the court of appeals for access to the appellate record if that is indeed what the appellant wants. Once such a motion is filed, the court of appeals has the ultimate responsibility to make sure that the appellant is granted access to the appellate record so that he may file his response before it rules on the adequacy of the Anders brief and appointed counsel's motion to withdraw. The court of appeals' judgment is reversed and remanded. Court of Criminal Appeals, No. PD-0702-13, 06-25-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

ATHA ALBERT DOBBS, Appellant v. THE STATE OF TEXAS

A jury convicted appellant of resisting arrest with a deadly weapon after he, during an attempt by police officers to arrest him at his home, allegedly exhibited a firearm, refused to put the weapon down when ordered to do so, and expressed his intent to use the firearm to shoot himself, but never threatened to use the weapon against the officers. A use of force against an officer must necessarily be in opposition to, or in the direction of and/or in contact with, the officer himself, meaning the officer's physical person. A use of force that is against the officer's goal of effectuating an arrest in the sense that it is hostile to or contrary to that goal, but that is not directed at or in opposition to the officer, is not covered by the plain terms of the statute. The court of appeals' judgment upholding the conviction is reversed and a judgment of acquittal rendered. Court of Criminal Appeals, No. PD-0259-13, 06-25-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

JIMMY DON PRICE, Appellant v. THE STATE OF TEXAS

The appellant was convicted of alleged continuous sexual abuse of a young child and of a criminal attempt to commit a predicate offense under that statute. The attempt and continuous-sexual-abuse offenses are the same for double-jeopardy purposes. The Legislature did not intend to permit multiple punishments. It would violate a defendant's rights against double jeopardy to permit convictions for both continuous sexual abuse and an attempt to commit a predicate act with respect to conduct committed against the same complainant during the same period of time. The court of appeals's judgment vacating appellant's conviction for criminal attempt is affirmed. Court of Criminal Appeals, No. PD-1460-13, 06-25-2014

Practice Areas: Criminal Law

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

SUPREME COURT OF TEXAS

BRYAN JAMES DANET AND WILLIAM TODD KRANZ, PETITIONERS, v. JESSICA BHAN, RESPONDENT

After a jury trial, the trial court entered an order appointing the child's foster care providers as the child's sole managing conservators. The court of appeals reversed on no evidence grounds and appointed the child's mother as his sole managing conservator. The evidence in the record in this case-which includes evidence of misconduct in the more distant past, evidence of more recent misconduct, and evidence of the stability of the child's current placement-together constitutes some evidence to support the jury's verdict. The questions of what length of time is required to ameliorate a history of bad conduct, and whether removal of a child from a long-term stable environment would, in itself, be sufficient to establish that a change in custody would substantially impair the child's physical health or emotional development, are purely contextual and subject to the good judgment of the fact finder at trial. The court of appeals' judgment is reversed and remanded. Texas Supreme Court, No. 13-0116, 06-27-2014

Practice Areas: Family Law

SUPREME COURT OF TEXAS

CARDIAC PERFUSION SERVICES, INC. AND MICHAEL JOUBRAN, PETITIONERS, v. RANDALL HUGHES, RESPONDENT

The trial court found that a majority shareholder engaged in oppressive conduct to the rights of a minority shareholder. The court of appeals affirmed. There is no common-law cause of action for shareholder oppression and the only statutory remedy for "oppressive" actions is a rehabilitative receivership. A minority shareholder in a closely held corporation may recover equitable relief, in some cases individually as well as on behalf of the corporation, through a derivative action for breach of fiduciary duties under Business Organizations Code §21.563(c). The court of appeals' judgment is reversed in part and affirmed in part and remanded to the trial court. Texas Supreme Court, No. 13-0014, 06-27-2014

Practice Areas: Business Entities

SUPREME COURT OF TEXAS

MARCIA FULLER FRENCH, ET AL., PETITIONERS, v. OCCIDENTAL PERMIAN LTD., RESPONDENT

Royalty owners contend that the royalty due on casinghead gas under the parties' agreements must be determined as if the injected CO2 were not present, and that they are not required to share with the working interest the expense of removing the CO2 from the gas. Under West a royalty owner is entitled to a royalty on the value of the non-CO2 portion of the casinghead gas. But that value is far less while the hydrocarbons and CO2 are commingled, and whether a royalty owner must share in the cost of separation was not in issue or addressed in West. Here, under the parties' agreements, where the producer processes the gas, reinjecting part and extracting NGLs to market, the royalty owner must share in the cost of CO2 removal. The court of appeals' judgment is affirmed. Texas Supreme Court, No. 12-1002, 06-27-2014

Practice Areas: Energy and Natural Resources

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JUAN CARLOS RAMOS-DELGADO, Defendant-Appellant.

The defendants pleaded guilty to various counts related to the transportation of illegal aliens. The defendants challenge the application of a 10-level enhancement under U.S. Sentencing Guidelines §2L1.1(b)(7). The guideline enhancement has no causation requirement. The only causation requirement is that contained in §1B1.3, which describes the general relevant conduct that may be considered in determining the guideline range. The defendant's relevant conduct must be a but-for cause of a harm for that harm to be considered in assigning the guideline range. The judgment and sentence are affirmed. 5th U.S. Circuit Court of Appeals, No. 13-40367 Consolidated with No. 13-40394, 06-30-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

RASHEED AL RUSHAID; AL RUSHAID PETROLEUM INVESTMENT CORPORATION; AL RUSHAID PARKER DRILLING, LIMITED, Plaintiffs-Appellees, v. NATIONAL OILWELL VARCO, INCORPORATED; NATIONAL OILWELL VARCO, L.P.; NOW OILFIELD SERVICES, INCORPORATED; NATIONAL OILWELL VARCO NORWAY; GRANT PRIDECO, L.P.; GRANT PRIDECO HOLDINGS, L.L.C.; NATIONAL OILWELL NORWAY, A.S.; NOW OILFIELD SERVICES, L.L.C., Defendants-Appellants.

The defendants in this contract dispute appeal the district court's denial of a motion to compel arbitration. When reference to another document is clear and the circumstances indicate that the intent of the parties was incorporation, a document may be incorporated, even in the absence of specific language of incorporation. Attributing the actions of an arbitration proponent's codefendants to it simply because it benefitted from those actions would cast an unduly wide net. Imputing to a party the actions of its codefendants merely on the ground that the entities are jointly owned or controlled or share representation would contravene the fundamental principle of corporate separateness. The denial of the motion to compel is vacated and the case is remanded. 5th U.S. Circuit Court of Appeals, No. 13-20159, 07-02-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JESUS C. HERNANDEZ, Individually and as the surviving father of Sergio Adrian Hernandez Guereca, and as Successor-in-Interest to the Estate of Sergio Adrian Hernandez Guereca; MARIA GUADALUPE GUERECA BENTACOUR, Individually and as the survi [...] v. UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES BUREAU OF CUSTOMS AND BORDER PROTECTION; UNITED STATES BORDER PATROL; UNITED STATES IMMIGRATION AND CUSTOMS ENFORCEMENT AGENCY; UNITED STATES DEPARTMENT [...]

This case involves a foreign national's attempt to invoke constitutional protection for an injury that occurred outside the United States. At all relevant times the alleged victim was standing in Mexico, therefore the claims against the United States based on the Federal Tort Claims Act are barred by the foreign-country exception. A party asserting jurisdiction under the Alien Tort Statute must establish, independent of that statute, that the United States has consented to suit. The alleged victim lacked sufficient voluntary connections with the United States to invoke the Fourth Amendment. A noncitizen injured outside the United States as a result of arbitrary official conduct by a law enforcement officer located in the United States may invoke the protections provided by the Fifth Amendment. The district court's judgment in favor of the United States and border patrol supervisors is affirmed. The judgment in favor of the border patrol agent is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 11-50792 consolidated with 12-50217 consolidated with 12-50301, 06-30-2014

Practice Areas: Constitutional Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

RANDALL WAYNE MAYS, PetitionerAppellant, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, RespondentAppellee.

The petitioner seeks a certificate of appealability. The appellant failed to show his counsel were constitutionally ineffective during the sentencing phase for failing to investigate the mitigating effects of his mental illness. Because the appellant has made no attempt to present any evidence of limited adaptive functioning under Briseno, he has failed to provide evidence of mental retardation under Texas law and, as a result, has failed to show prejudice in urging his IAC claim. There is no rule of constitutional law making the execution of mentally ill persons unconstitutional. 5th U.S. Circuit Court of Appeals, No. 13-70037, 06-27-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

DONALD KEITH NEWBURY, Petitioner - Appellant v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent - Appellee

On remand the petitioner requests a certificate of appealability. The district court's procedural ruling that ineffective assistance of state habeas counsel cannot constitute cause to excuse a procedural default is incorrect in the light of Martinez and Trevino. But, because the district court addressed the merits of the petitioner's alleged ineffective assistance claim, including the evidence presented for the first time in federal court, it is not arguable but that the petitioner has already received all of the relief available to him under the authority of Martinez and Trevino. The COA is denied. 5th U.S. Circuit Court of Appeals, No. 10-70028, 07-01-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

CRUZ ALBERTO GARCIA, Petitioner v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL, Respondent

The petitioner asks for review of a BIA decision upholding the denial of removal and the withholding of Convention Against Torture protection. The petition for review as to the BIA's denial of protection under the CAT is granted, that decision is vacated, and it is remanded for consideration of whether the petitioner will, more likely than not, be tortured by or at the instigation of or with the consent or acquiescence of a public official at any level of government or other person acting under color of law. 5th U.S. Circuit Court of Appeals, No. 13-60381, 07-01-2014

Practice Areas: Immigration Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

THE ARANSAS PROJECT, PlaintiffAppellee, [...] v. BRYAN SHAW, in His Official Capacity as Chairman of the Texas Commission on Environmental Quality; BUDDY GARCIA, in His Official Capacity as Commissioner of the Texas Commission on Environmental Quality; CARLOS RUBINSTEIN, in His Official Capacity as Commissioner of the Texas Commission on Environmental Quality; MARK VICKERY, in His Official Capacity as Executive Director of the Texas Commission on Environmental Quality; AL SEGOVIA, in His Offici [...]

The district court granted an injunction prohibiting Texas Commission on Environmental Quality from issuing new permits to withdraw water from rivers that feed the estuary where whooping cranes make their winter home. The injunction also required TCEQ to seek an incidental-take permit from the U.S. Fish and Wildlife Service. The district court either misunderstood the relevant liability test or misapplied proximate cause when it held the state defendants responsible for remote, attenuated, and fortuitous events following their issuance of water permits. Because the deaths of the whooping cranes are too remote from TCEQ's permitting withdrawal of water from the San Antonio and Guadalupe Rivers, the state defendants cannot be held liable for a take or for causing a take under the Endangered Species Act. The district court's judgment is reversed. 5th U.S. Circuit Court of Appeals, No. 13-40317, 06-30-2014

Practice Areas: Environmental Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

AFRICAN METHODIST EPISCOPAL CHURCH, Plaintiff-Appellee v. WILLARD LUCIEN, JR.; ROGER KENNEDY; SAINT JAMES MISSION CHURCH; GEORGE GATON, SR.; THOMAS J. HOGAN, Defendants-Appellants;

This appeal concerns a dispute over church property between a dissident local congregation (Saint James) and the national church (AME) with which it had been affiliated for many decades. The district court's denial of Saint James's motion to remand the eviction proceeding is reversed with instructions to remand to the state court from which the proceeding was improvidently removed. Colorado River abstention applies to the district court's jurisdiction over the remaining portions of the consolidated case: the eviction proceeding and the federal action are sufficiently parallel; federal jurisdiction would present a significant risk of inconsistent rulings as to the ownership of the property; relative inconvenience of the fora weighs in slight favor of abstention; there is a risk of inconsistent rulings; the priority element does not weigh against abstention; whether federal law controls the merits is a neutral factor, as is adequacy of the state proceedings to protect AME's rights. The district court's judgment is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 13-30617, 06-30-2014

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, PlaintiffAppellee v. ROBERT A. MACKAY, also known as Fat Boy, also known as Bob Mackay, also known as Fatman, DefendantAppellant

The cover sheet of the appellant's presentence report erroneously listed his offense as alleged conspiracy to possess with intent to distribute, and distribution of, cocaine, and so did his judgment. The clerical error had no effect on the appellant's conviction or sentence. Because the PSR affects the rights and obligations of the defendant, it is of like kind or character as a judgment or order and it is embraced by the terms "other part of the record" as used in Federal Rule of Criminal Procedure 36. There is no conflict between Rule 32's time limit to raise substantive objections to material information and Rule 36's provision that clerical errors may be raised "at any time." The district court's judgment is reversed and remanded with instructions to correct the clerical error. 5th U.S. Circuit Court of Appeals, No. 13-10521, 06-26-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee v. DANIEL ESCOBEDO, Defendant-Appellant

At trial, over the appellant's objection, the district court allowed the prosecution to introduce evidence of his withdrawn guilty plea and related inculpatory statements. The plea agreement is ambiguous as to whether the waiver of the appellant's right to exclude his withdrawn guilty plea and related inculpatory statements under Federal Rule of Evidence 410(a) and Federal Rule of Criminal Procedure 11(f) was effective immediately or contingent upon the district court's acceptance of his guilty plea, which never occurred. An ambiguous plea agreement must be reasonably construed in favor of the defendant. The district court's judgment is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 12-40205, 06-27-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant v. DAVID RAINEY, Defendant-Appellee

The district court held that the defendant cannot be prosecuted under 18 U.S.C. §1505 for obstructing a congressional-subcommittee investigation because a congressional subcommittee is not "any committee of either House." The statutory class of "any committee of either House," includes congressional subcommittees. The district court's judgment is vacated. 5th U.S. Circuit Court of Appeals, No. 13-30770, 06-27-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ADRIAN GARCIA, also known as Adrian Garcia Bustamante, Petitioner v. ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL, Respondent

The petitioner challenges the Board of Immigration Appeals' determination that his auto-burglary conviction constitutes a conviction for an aggravated felony. A conviction for unauthorized entry of a vehicle with intent to commit a theft therein constitutes a conviction for an attempted theft offense, which, under 8 U.S.C. §§1101(a)(43)(U) and 1229b(a)(3), renders the petitioner ineligible to apply for cancellation of removal. The petition for review is denied. 5th U.S. Circuit Court of Appeals, No. 12-60490, 06-30-2014

Practice Areas: Immigration Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JUAN MARTIN GARCIA, Petitioner Appellant v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent Appellee

The petitioner requests a certificate of appealability to appeal the district court's denial of federal habeas relief. In the light of the state's overwhelming evidence of future dangerousness, reasonable jurists would not debate the district court's conclusion that there is not a reasonable probability that the jury would have answered the special issues differently in the absence of a defense witness' isolated testimony about race and ethnicity. The request for a COA is denied. 5th U.S. Circuit Court of Appeals, No. 13-70034, 06-27-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

RICHARD JORDAN, Petitioner - Appellant, v. CHRISTOPHER B. EPPS, COMMISSIONER, MISSISSIPPI DEPARTMENT OF CORRECTIONS, Respondent - Appellee.

The petitioner appeals from the district court's denial of a certificate of appealability for habeas corpus relief. To establish a presumption of vindictiveness claim, there must be an increase in the charge between the initial indictment and the indictment following the exercise of a right. The request for a COA is denied. 5th U.S. Circuit Court of Appeals, No. 10-70030, 06-25-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

NATIONAL LIABILITY & FIRE INSURANCE COMPANY, PlaintiffAppellant, v. R & R MARINE, INC.; R & R MARINE OFFSHORE, INC.; R & R MARINE MAINTENANCE, INC.; R & R SHIPBUILDERS, INC., DefendantsAppellants, v. HORNBECK OFFSHORE SERVICES, L.L.C., DefendantAppellee.

A vessel sank while at a shipyard for repairs. The district court found the shipyard liable negligent and that the shipyard's insurer was liable. The district court did not clearly err in finding that the shipyard had full custody of the vessel. A prima facie case for negligence shifts the burden to the bailee to demonstrate that it exercised ordinary care. The shipyard failed to demonstrate the unexpected severity of the weather was an act of God or to point to any affirmative acts the shipyard took that constituted due care. The district court properly ruled on the vessel owner's counterclaim because Federal Rule of Civil Procedure 13(a) controls. Texas courts would construe Texas Civil Practice and Remedies Code §38.001 as allowing the vessel owner to recover attorney's fees from the insurer, but the court erred in the rate of interest. The district court's judgment is affirmed in part, reversed in part, and remanded. 5th U.S. Circuit Court of Appeals, No. 10-20767, 06-30-2014

Practice Areas: Admiralty

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff Appellee v. NAZARIO GONZALEZ-MEDINA, Defendant Appellant

The appellant contends that he was not required to register as a sex offender because his Wisconsin conviction under Wisconsin Statutes §948.09 for allegedly having sexual intercourse with a child age 16 or older does not qualify as a "sex offense" within the meaning of the Sex Offender Registration and Notification Act. A non-categorical approach applies for purposes of determining the age differential in the 42 U.S.C. §16911(5)(C) exception. A four-year age differential need not be an element of the predicate offense. The conviction is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-40927, 07-02-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

REYMOND MEADAA; HARRY HAWTHORNE; JOSE MATHEW; DINESH SHAW; NAVTEJ RANGI; NAJA HOLDINGS, L.L.C.; HULENCI, L.L.C., PlaintiffsAppellees, v. K.A.P. ENTERPRISES, L.L.C.; ARUN K. KARSAN; VERSHA PATEL KARSAN; SAINATH, L.L.C., DefendantsAppellants.

This is an appeal of non-certified orders. Three of the orders are non-final and merged into a judgment. One order is the district court's denial of a motion to alter or amend the judgment. An order affirming a prior judgment is as much an integral part of that judgment as the evidentiary rulings that paved the way to the judgment. Courts of appeals possess jurisdiction to review a denial of a Rule 59 motion to alter or amend a certified judgment. The district court's partial summary judgment is affirmed in part and vacated and remanded in part. 5th U.S. Circuit Court of Appeals, No. 12-30918, 07-01-2014

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

TRINITY INDUSTRIES, INC., for Itself and on Behalf of Certain Subsidiaries, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee.

A taxpayer appeals the denial of research tax credits claimed under Internal Revenue Code §41. The district court decided that certain claim year projects were not sufficiently experimental to pass the fourth qualified research expenses requirement -- that 80% or more of the research activities involved in the project constitute elements of a process of experimentation -- and the taxpayer asked the court to consider whether four of its base period projects were also not sufficiently experimental to pass that same test. The district court's holding as to the consistency rule is vacated and remand for findings as to whether the four base period vessels at issue are sufficiently experimental to constitute qualified research. The district court's judgment is affirmed in part and vacated and remanded in part. 5th U.S. Circuit Court of Appeals, No. 12-11012, 07-02-2014

Practice Areas: Taxation

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CRISTIAN ALEJANDRO RODRIGUEZ-LOPEZ, a/k/a Alex, a/k/a Puma, a/k/a Compadre, Defendant-Appellant.

Defendants appeal their convictions and sentences related to an alleged conspiracy to distribute marijuana. A prosecutor should not use closing arguments to disparage defense counsel's motives for representing a criminal defendant, but the district court's prompt action and curative instruction were effective. Because there is no evidence that a defendant exercised a managerial or supervisory role in the drug conspiracy, an enhancement under U.S. Sentencing Guidelines §3B1.1 does not apply. One defendant's conviction and sentence is affirmed, and the second defendant's conviction is affirmed and his sentence is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 12-41177 c/w No. 13-40559, 06-25-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

DOUG CROWNOVER and KAREN CROWNOVER, Plaintiffs - Appellants v. MID-CONTINENT CASUALTY COMPANY, Defendant - Appellee

After a homebuilder filed for bankruptcy, homeowners sued the builder's insurer for damages caused by the builder's alleged failure to promptly correct work in the home. The district court did not err in concluding that the insurer had demonstrated that the contractual-liability exclusion applies. Whereas contractually agreeing to repair damage resulting from a failure to exercise reasonable care in performing the work or agreeing to perform work in a good and workmanlike manner would mirror a contractor's duty under general law, contractually agreeing to repair damage resulting from a failure to comply with the requirements of the contract would not. The district court's judgment in favor of the insurer is affirmed. 5th U.S. Circuit Court of Appeals, No. 11-10166, 06-27-2014

Practice Areas: Insurance Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MARY SMITH; PAMELA BAGNERIS BATISTE; ROBERT BOOKMAN; KENNETH BOURGEOIS; JAMES BROWN, JR.; et al, Plaintiffs-Appellants, v. REGIONAL TRANSIT AUTHORITY; TRANSIT MANAGEMENT OF SOUTHEAST LOUISIANA, INCORPORATED, Defendants-Appellees.

The district court dismissed the plaintiffs' suit holding that a pension benefit plan was a "governmental plan" exempt from ERISA. A federal district court has jurisdiction to decide whether or not a plan is an ERISA plan as claimed by the plaintiff in the complaint. The proper procedural vehicle to raise the question of whether a purported ERISA plan is a "governmental plan" is either Rule 12(b)(6) or, if factual information outside the pleadings is needed, Rule 56 (if factual issues cannot be resolved then a trial may be needed). The district court's order is vacated and remanded for reconsideration under a proper procedural vehicle. 5th U.S. Circuit Court of Appeals, No. 13-30647, 06-23-2014

Practice Areas: Labor and Employment

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In the Matter of: 804 CONGRESS, L.L.C., Debtor,

After an automatic stay in bankruptcy was lifted, a creditor was permitted to foreclose on real property. The bankruptcy court jurisdiction over the sale proceeds for purposes of determining the creditor's right to recover attorneys' fees and the Deed of Trust trustee's right to recover a contractually specified commission for conducting the non-judicial foreclosure sale. The bankruptcy court denied the request for attorneys' fees, based on the lack of supporting evidence, and substantially reduced the Deed of Trust trustee's commission, finding the contractual commission unreasonable under 11 U.S.C. § 506(b). The district court reversed. The district court's judgment is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 12-50382 Cons w/ 12-50392 Cons w/ 12-50425, 06-23-2014

Practice Areas: Bankruptcy

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. CARMEN DE JESUS BOCHE-PEREZ, Defendant - Appellant

The appellant appeals from a criminal conviction pursuant to a conditional plea agreement in which he pleaded guilty to knowing possession of child pornography, but reserved the right to appeal the denial of a motion to suppress a series of confessions given to border patrol agents. When presented with a delay outside of the safe harbor, a district court must apply the McNabb-Mallory doctrine to determine whether the delay in bringing a suspect before a magistrate was reasonable. The roughly seven hour delay after the expiration of the safe harbor before the appellant's oral confession was reasonable in light of the totality of the circumstances. Reasonable delays for transferring an oral confession into writing do not trigger a McNabb-Mallory violation. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-40141, 06-17-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ANGELA LEA; DARREL LEA, Plaintiffs Appellants v. BUY DIRECT, L.L.C., Defendant Appellee

Plaintiffs brought this action seeking statutory damages under the Truth in Lending Act alleging that the defendant failed to provide the dates that payments would be due on an installment contract for membership in a wholesale membership club. The agreement was consummated when the plaintiffs signed the Membership Agreement, Retail Installment Contract, and Payment Agreement and paid the first $100 of their down payment. A consumer is entitled to TILA disclosures prior to consummating a transaction. The application of TILA's requirements do not vary due to equitable considerations. The district court's judgment is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-20281, 06-12-2014

Practice Areas: Consumer Protection

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA; NEW YORK MARINE & GENERAL INSURANCE COMPANY; NAVIGATORS INSURANCE COMPANY; NATIONAL LIABILITY & FIRE INSURANCE COMPANY, ("Starr Marine"), Plaintiffs - Appellees, v. W & T OFFSHORE, INCORPORATED, Defendant - Appellant.

Underwriters, the appellees, argued that umbrella policies would only take effect if the insured's underlying / primary insurance is exhausted by claims that would be covered by the umbrella policies. The umbrella policies explain two potential scenarios-if reduced or exhausted by covered claims, then the underwriters either pay in excess of reduced limit limit or act as primary insurer. The district court's summary judgment is reversed and rendered in favor of the insured. 5th U.S. Circuit Court of Appeals, No. 13-20512, 06-23-2014

Practice Areas: Insurance Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, PlaintiffAppellee, v. DESMOND DEON JONES, DefendantAppellant.

The appellant, convicted as a felon unlawfully in possession of a firearm, challenges his sentence. An escape from a halfway house is not a "crime of violence" within the meaning of U.S. Sentencing Guidelines §4B1.2(a). The sentence is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 12-40877, 06-12-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellant v. ASHLEY NICOLE RICHARDS; BRENT JUSTICE, Defendants-Appellees

The government appeals the district court's decision that 18 U.S.C. § 48 is facially invalid under the First Amendment. Section 48 makes it a crime to knowingly create, sell, market, advertise, exchange, or distribute an "animal crush video" that depicts actual conduct in which one or more non-human animals is intentionally crushed, burned, drowned, suffocated, impaled, or otherwise subjected to serious bodily injury and is obscene. On its face §48 is limited to unprotected obscenity and therefore is facially constitutional. The district court's judgment is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-20265, 06-13-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

WILLIAM GRAPER, Plaintiff - Appellant v. MID-CONTINENT CASUALTY COMPANY, Defendant - Appellee v. BEN B. FLOYD, Chapter 7 Bankruptcy Trustee for Joe B. Partain and Laura Partain, Appellant

This appeal concerns the question of when will a conflict of interest entitle an insured to select its own counsel. The "same facts" test in Davalos was the proper analysis to determine whether a disqualifying conflict of interest exists. "Willful" under the copyright act, 17 U.S.C. §504(c)(2), encompasses more than just "knowing" infringements. Because an alleged infringement could be willful conduct under §504(c)(2), entitling the plaintiff to enhanced damages, without a finding of knowing infringement thereby excluding coverage, there is no disqualifying conflict of interest under Davalos. The district court's grant of summary judgment to the insurer is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-20099, 06-24-2014

Practice Areas: Insurance Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

PETER JOHN SCHUSTER, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges his conviction for allegedly violating Texas Penal Code 33.021(b)(1), which prohibits certain types of sexually explicit communications with a minor child. An appellant may challenge the constitutionality of a statute that the Court of Criminal Appeals has decided is unconstitutional, even though he failed to make the argument in the trial court. The trial court's judgment is reversed, the trial court is directed to dismiss the indictment and release the appellant. Houston's 1st Court of Appeals, No. 01-13-00039-CR, 06-05-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

EX PARTE RICHARD MARK BOWMAN, Appellant

The appellant contends that the trial court erred in denying him relief from a judgment of conviction of the misdemeanor offense of allegedly driving while intoxicated on his argument that his trial counsel was ineffective. The state must plead laches in the trial court to preserve the issue for appeal. An investigation that did not include obtaining the arresting officer's payroll records, which were available and readily detailed the extent of the officer's alleged overtime-pay abuse, does not reflect reasonable professional judgment. Because the arrest video alone does not establish that appellant was intoxicated at the time he was stopped by the officer, and the state substantially relied on the officer's opinion regarding intoxication, his credibility was crucial to conviction. Habeas relief is granted. Houston's 1st Court of Appeals, No. 01-13-01045-CR, 06-05-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

GOOGLE, INC., Appellant v. EXPUNCTION ORDER, Appellee

The appellant, which was never a party to the underlying suit, challenges an expunction order. Because there was no identification of the appellant as a party or any attempt to serve it with process, the judgment is void. Portions of the expunction order affecting the appellant is reversed and vacated. Houston's 1st Court of Appeals, No. 01-13-00228-CV, 06-05-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

MARY ANN ORR AND CHARLOTTE ORR, Appellants v. LUCY ANN WALKER, Appellee

The appellants challenge the denial of an application to probate thw will of their grandmother. When the appellants' mother passed away, her interest in the will passed to the appellants. By waiting at least nearly five years after the discovery of the will before filing the application to probate the will, the appellants lost any status that they may have had as non-defaulting. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00586-CV, 06-05-2014

Practice Areas: Trusts and Estates

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

ADVANCED PERSONAL CARE, LLC, Appellant v. JACQUELYN CHURCHILL, EVERETT CHURCHILL AND JED, INC., Appellees

A settlement agreement provided that as consideration for the parties' release of their claims, the sellers would sell the property to the buyer at a reduced rate. After the buyer refused to complete the sale, each side alleged that the other breached the settlement agreement. The trial court found that the buyer breached the agreement, and enforced the release while refusing to enforce the property sale. The trial court failed to answer the fact question of whether the sellers elected to treat the Settlement Agreement as terminated or as continuing. Although it is presumed in some circumstances that the trial court made omitted findings in support of its judgment, the presumption does not apply where the record reveals that the trial court based its judgment on an erroneous interpretation of law, and failed to answer a factual question necessary to resolve the case under a correct interpretation. The trial court's judgment is reversed and remanded. Houston's 14th Court of Appeals, No. 14-13-00251-CV, 06-10-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

RODOLFO DOMINGUEZ, Appellant v. THE STATE OF TEXAS, Appellee

The appellant, who was convicted of alleged capital murder, challenges evidentiary rulings by the trial court. Cell phone tower records prepared through regular conducted activities are business records, and a letter accompanying the record certifying their truth and accuracy constitutes an unsworn declaration. The records are not hearsay. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-01148-CR, 06-10-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

VLADIMIR VAK, Appellant v. NET MATRIX SOLUTIONS, INC., Appellee

In this challenge to the trial court's denial of his special appearance, the appellant argues that his contract with a consulting firm does not contain a forum-selection clause and the appellant's contacts with Texas are insufficient to establish jurisdiction. Clauses providing for exclusive venue in a particular locale are treated as forum-selection clauses. The agreement recites that it "was made" in Harris County, Texas. Such a recital fixes a jurisdictional fact in the forum. The trial court's decision is affirmed. Houston's 1st Court of Appeals, No. 01-13-00385-CV, 06-10-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

IN RE ANTHONY L. BANNWART, JR., Relator

The relator seeks habeas corpus relief from a civil contempt order and seeks a writ of prohibition preventing the trial court from holding criminal contempt proceedings. The order's purging condition does not clearly or specifically notify relator of the action he needs to take to purge himself of contempt and escape the restraint on his liberty. The provision fails to specify the type of document relator is required to execute and record in order to vacate the substitute trustee's deed and leaves open for interpretation the form of the required document, given that the only guideline is that it must be in a "form acceptable to the [trial court]." The contempt order is void, the writ of habeas corpus is granted. The writ of prohibition is denied because the relator failed to demonstrate how the alleged criminal contempt proceedings involving relator are a threat to the subject matter of an appeal currently pending in the court of appeals. Houston's 1st Court of Appeals, No. 01-13-01001-CV, No. 01-13-01094-CV, 06-12-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

JERRY ALFRED FUTCH, JR., Appellant v. BAKER BOTTS, LLP, Appellee

After pleading guilty to the felony offense of false reporting, a former client sued the firm that had represented him, asserting a claim for breach of contract and seeking forfeiture of attorney's fees based on alleged breaches of fiduciary duty. The trial court granted summary judgment in favor of the firm. The appellant's claim against the firm for damages resulting from its alleged disclosure of confidential or privileged information to Justice Department officials sounds in tort, not in contract. Therefore, the trial court did not err in granting summary judgment as to the appellant's breach-of-contract claim. The Peeler doctrine applies to the appellant's request for fee forfeiture based on the firms alleged breaches of fiduciary duty. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00731-CV, 06-10-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

CHRISTOPHER MULGREW, Appellant v. SPECTRASEIS, INC., Appellee

This is an appeal from the dismissal of a personal injury case based on the trial court's determination that a foreign jurisdiction had exclusive jurisdiction over the work-related injury suffered by the appellant. The Texas Legislature has not granted administrative agencies of foreign jurisdictions exclusive jurisdiction over disputes. The trial court's dismissal order is reversed and remanded. Houston's 14th Court of Appeals, No. 14-13-00252-CV, 06-10-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

IN THE INTEREST OF J.D., A CHILD

The appellant appeals from the trial court's judgment terminating her parental rights to her daughter. The trial court could credit the expert medical testimony that a five-year-old, the child's sister, was not capable of causing the injuries to the child, and the injuries resulted from abuse. The trial court was not required to believe the mother's testimony that she was unaware of the injury until shown the x-ray at the hospital. The trial court was also not required to believe the sister's testimony. The trial court's judgment is affirmed.Houston's 14th Court of Appeals, No. 14-14-00076-CV, 06-10-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

CHARLES P. CURRY AND JENNIFER CURRY, Appellants v. HARRIS COUNTY APPRAISAL DISTRICT, Appellee

Property owners challenge the appraised value of real property for property-tax purposes. Nothing precludes a property owner from appealing to the district court if the appraisal review board fixed the appraised value based on an opinion of value offered by the property owner. Any statement in the hearing affidavit or at the formal hearing cannot be a basis for application of the judicial-estoppel doctrine in the district court. The district court erred in granting summary judgment based on judicial estoppel. The trial court's judgment is reversed and remanded. Houston's 14th Court of Appeals, No. 14-12-00898-CV, 06-05-2014

Practice Areas: Taxation

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

MORGAN LEE BROUSSARD, Appellant v. THE STATE OF TEXAS, Appellee

After police smelled an odor they believed was marijuana, they detained the appellant and discovered he was allegedly in possession of cocaine.The trial court denied the appellant's motion to suppress. The appellant's evidence that one item seized from the vehicle smelled fruity does not create a fact issue as to whether the officers smelled marijuana before stopping appellant. The appellant was not entitled to a Texas Code of Criminal Procedure article 38.23 jury instruction. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00406-CR. 06-05-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

BENNETT KEITH O'BANNON, Appellant v. THE STATE OF TEXAS, Appellee

The appellant was convicted for alleged indecency with a child. The appellant argues that the uses specified in Texas Code of Criminal Procedure article 102.020(h) for the DNA Testing Fee collected under article 102.020(a)(1) are not properly characterized as costs of court; therefore, appellant contends that article 102.020(h) impermissibly requires the judicial branch to perform an executive function by collecting a tax. The funds collected as a DNA Testing Fee are sufficiently related to the collection and testing of DNA in criminal cases. The judgment is affirmed as modified to reflect jail time credited. Houston's 14th Court of Appeals, No. 14-12-00653-CR, 06-10-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

COLLEGE OF THE MAINLAND, Appellant v. BRUCE GLOVER, Appellee

The appellee sued his employer, a college, claiming that the college gave preferential treatment to female colleagues in matters concerning their compensation. The sole disputed issue is whether the appellee was treated less favorably than similarly situated persons not in the protected class. The two comparators are not nearly identical for comparison purposes: they differ in terms of experience, educational attainment, and seniority. The trial court's judgment is reversed and a judgment of dismissal is rendered. Houston's 14th Court of Appeals, No. 14-13-01047-CV, 06-05-2014

Practice Areas: Labor and Employment

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

KENNETH LEE DOUDS, Appellant v. THE STATE OF TEXAS, Appellee

After the trial court denied appellant's motion to suppress his blood specimen drawn without a warrant and the results of a blood alcohol test of the specimen, he pleaded guilty to a reduced charge as part of a plea agreement. The taking of appellant's blood was an unreasonable warrantless seizure in violation of the Fourth Amendment. The trial court's judgment is reversed and rendered. Houston's 14th Court of Appeals, No. 14-12-00642-CR, 06-05-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

IN THE MATTER OF THE MARRIAGE OF WILLIAM SCOTT DORNER AND GLORIA MONIQUE DORNER

The appellant in this matter involving the enforcement of a divorce decree appeals the denial of her motion for new trial and claims that the trial court erred in proceeding to hear the appellee's petition in her absence without providing her with 45 days' notice of the trial setting as required by Rule 245 of the Texas Rules of Civil Procedure. After filing a general denial, the appellant did not object that she was not given 45 days' notice of the hearing, but instead filed a motion in which she requested a continuance for medical treatment. By failing to object, error was not preserved. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-14-00005-CV, 06-06-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

TIME WARNER, INC. and Time Warner Cable, LLC, Appellants v. Dulio GONZALEZ, Appellee

The trial court entered judgment for the plaintiff in this case alleging that the plaintiff was injured after tripping over a cable installed by the defendant. The trial court abused its discretion when it denied the appellant's request to withdraw deemed admissions. The record contains evidence establishing that the appellant had good cause for the withdrawal because the deemed admissions acted as merits-preclusive sanctions that raised due process concerns. The appellee would not have been unduly prejudiced by relying on improper requests for admission, and presentation of the merits would have been served by withdrawal of the admissions. The trial court's judgment is reversed and the cause is remanded for a new trial. San Antonio Court of Appeals, No. 04-13-00420-CV, 06-11-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

JJJJ WALKER, LLC; DYNAFAB USA, LLC; RENAISSANCE PROPERTIES OF TEXAS, LLC; PRIYA PROPERTIES, LLC; BD TEXAS, LLC; AND KW HOSPITAL ACQUISITION, LLC, Appellants v. ERIC YOLLICK, Appellee

In this case alleging fraud, the plaintiffs prevailed in their claims against a bank, the bank's corporate agent, and the bank's attorney, but the trial court granted judgment notwithstanding the verdict on the claim against the bank's attorney on the ground that no evidence supported the liability finding. The trial court erred in granting JNOV based on insufficient evidence. The fraud claim is not barred by the economic-loss rule, and attorney immunity does not apply to the attorney's conduct in executing a letter agreement as the bank's agent despite his alleged knowledge that the bank had no intention of performing. The trial court's judgment is reversed in part and remanded. Houston's 14th Court of Appeals, No. 14-13-00161-CV, 06-05-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

THE MONTROSE MANAGEMENT DISTRICT; THE PUBLIC OFFICIALS: CLAUDE WYNN, RANDY MICHMORE, CASSIE STINSON, KATHY HUBBARD, BRAD NAGAR, ROBERT JARA, BOBBY HUEGEL, DANA THORPE, LANE LLEWELLYN, TAMMY MANNING, DAVID ROBINSON, MICHAEL GROVER, AND RANDY ELLIS; AND BILL CALDERON, EXECUTIVE DIRECTOR, Appellants v. 1620 HAWTHORNE, LTD., Appellee

This is an appeal from the trial court's denial of a summary judgment motion based on governmental immunity in this suit brought by a landowner seeking dissolution of a municipal management district. Had the landowner simply sought construction of the statute, the district's immunity from suit likely would have been waived. However, governmental immunity is not waived under the UDJA for complaints about a government entity's actions under a statute. Governmental immunity is not waived under the UDJA for complaints about a government entity's actions under a statute. Texas Local Government Code §375.262(2), which authorizes dissolution based upon a petition signed by owners of 75% of "the surface area of the district" expressly excludes from the calculation property "exempt from assessment." All the claims are dismissed for want of jurisdiction, except one alleging ultra vires conduct. Houston's 14th Court of Appeals, No. 14-13-00233-CV, 06-10-2014

COURT OF CRIMINAL APPEALS OF TEXAS

EX PARTE RICHARD DEWAYNE JONES, Appellant

The court of appeals upheld the trial court's denial of the pre-trial application for a writ of habeas corpus filed in which the appellant alleged a violation of the single-subject rule after being indicted for evading arrest with a motor vehicle. Appellant challenges the validity of a provision within an amendment that elevated the range of punishment for first-time offenders who commit the offense of evading arrest with a motor vehicle. The bill, which provides for criminal penalties for offenses related to motor vehicles for the purpose of better protecting law enforcement and the public from actors who evade arrest, does not violate the single-subject requirement. The court of appeals' judgment is affirmed. Court of Criminal Appeals, No. PD-1158-13, 06-04-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

JAMES GARZA, Appellant v. THE STATE OF TEXAS

The appellant contested the imposition of his life-without-parole sentence arguing that, because he was a juvenile, the sentence violated his Eighth Amendment rights as defined by the U.S. Supreme Court's decision in Miller v. Alabama. Substantive status-based or individualized-sentencing claims under the Eighth Amendment and embraced by Miller are not forfeited by inaction. The court of appeals' judgment is reversed and remanded. Court of Criminal Appeals, No. PD-1596-12, 06-11-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

EX PARTE LEROY EDWARD COTY, Applicant

The habeas court recommended denial of relief in this case alleging forensic technician misconduct. When an applicant alleges a due process violation predicated upon the malfeasance of a forensic laboratory technician, that applicant's claim should be analyzed using a modified false-evidence analysis as set forth in Ex parte Coty. The state rebutted the presumption that the evidence in question should be presumed false. The applicant is denied relief. Court of Criminal Appeals, No. WR-79,318-02, 06-04-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

CORNELIOUS L. MATTHEWS, Appellant v. THE STATE OF TEXAS

The appellant filed a pre-trial motion to suppress crack cocaine that officers allegedly found during a warrantless search of a van that appellant had borrowed. The trial court denied the motion and the appellant was convicted. The court of appeals affirmed. When coupled with the specific anonymous tip that appellant was allegedly selling cocaine from that van, the totality of circumstances established reasonable suspicion to briefly detain and investigate the officers' suspicions. The post-frisk detention was not unreasonable, nor was it unnecessarily prolonged. By fleeing, the appellant abandoned his reasonable expectation of privacy in the van. The court of appeals judgment is affirmed. Court of Appeals, No. PD-1341-13, 06-11-2014

Practice Areas: Criminal Law

SUPREME COURT OF TEXAS

IN RE VAISHANGI, INC., ET AL., RELATORS

This is a mandamus proceeding. A defendant filed a motion to enforce a Rule 11 agreement almost a year after the case had been dismissed. the Rule 11 agreement contains no decretal language. The dismissal order is the trial court's final judgment and the Rule 11 agreement is not. The trial court exceeded its jurisdiction by hearing a post-judgment motion to enforce the agreement after its plenary power had expired. The writ of mandamus is conditionally granted. Texas Supreme Court, No. 13-0169, 06-06-2014

Practice Areas: Appellate Law - Civil

SUPREME COURT OF TEXAS

CITY OF HOUSTON, PETITIONER, v. SHAYN A. PROLER, RESPONDENT

The plaintiff appeals in this case alleging disability discrimination by a city. the record shows that the plaintiff, a firefighter, was reassigned because the city perceived him as unable to perform his specific job as a captain of a firefighting crew. There is no evidence that the city reassigned him because it perceived him as unable to perform a major life activity such as walking, thinking, or working in general, due to an underlying mental or physical disorder. The court of appeals judgment remains in effect but is reversed and remanded in part and rendered in part. Texas Supreme Court, No. 12-1006, 06-06-2014

Practice Areas: Labor and Employment

SUPREME COURT OF TEXAS

IN THE INTEREST OF S.M.R., G.J.R. AND C.N.R., CHILDREN

The court of appeals reversed a judgment terminating a father's parental rights and remanded the case, concluding that the termination grounds expressed in the trial court's judgment were not supported by factually sufficient evidence. A judgment in compliance with Texas Rule of Civil Procedure 306 that states the specific termination grounds and determines the children's best interests is complete on its face, and nothing need be implied in support of the judgment under Rule 279. Conceivably, subpart (O) of Texas Family Code §161.001 could be established as a termination ground as a matter of law. But when questions of compliance and degree are raised, and the trial court declines to terminate on this ground, the evidence is not conclusive; it is disputed. The department did not conclusively establish subpart (O) as a ground for terminating the father's rights in this case. The court of appeals' judgment is affirmed. Texas Supreme Court, No. 12-0968, 06-06-2014

Practice Areas: Family Law

SUPREME COURT OF TEXAS

MAN ENGINES & COMPONENTS, INC. AND MAN NUTZFAHRZEUGE AKTIENGESELLSCHAFT, PETITIONERS, v. DOUG SHOWS, RESPONDENT

In this case involving the purchase of a used yacht. The purchase was entitled to recover on his implied-warranty claim. If the manufacturer validly disclaims implied warranties at the first sale, as is commonly done, that disclaimer carries with the good, just as the warranty otherwise would. Absent such disclaimer language, manufacturers do not escape liability merely because a good has transferred owners, and the purchaser of a used good can rely upon an implied warranty created at the time of first sale. The law imposes an obligation that merchants sell merchantable goods, and when they fall short of this standard, a second-hand buyer who suffers an economic loss from a defect has a right of recovery through an implied-warranty action. Texas Supreme Court, No. 12-0490, 06-06-2014

Practice Areas: Commercial Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, PlaintiffAppellee, v. SAN JUANITA NOEMI MEDELESCAB, DefendantAppellant.

The appellant argues that the government put on improper "drug courier profile" evidence during her trial. Inadmissible drug courier profile testimony involves an agent drawing a direct connection between a drug courier characteristic (or characteristics) and the defendant in order to establish the defendant's guilt. If, on the other hand, the agent merely testifies to certain characteristics of drug trafficking, without drawing the connection, the testimony is generally admissible. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-40374, 06-11-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

IN RE: DEEPWATER HORIZON;

The defendants appeal partial summary judgment in favor of the government in this suit involving civil liability for the Deepwater Horizon oil spill. Oil need not flow from a facility directly into navigable waters to give rise to civil-penalty liability under 33 U.S.C. §1321. Liability is not precluded by the fact that the property traversed by the oil was owned by a third party. Although §1321 includes a third-party-fault exception for removal-cost liability, it includes no such exception for civil-penalty liability. The district court's summary judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-30883, 06-04-2014

Practice Areas: Environmental Law

SUPREME COURT OF TEXAS

DEPUTY COREY ALEXANDER AND SERGEANT JIMMIE COOK, PETITIONERS, v. APRIL WALKER, RESPONDENT

This is an appeal of the trial court's denial of defendant police officers motion for summary judgment under the Texas Tort Claims Act election-of-remedies provision. The court of appeals held that, because Walker elected to sue the officers first, she triggered the bar to suit against their governmental employer in Texas Civil Practice and Remedies Code §101.106. For the same reason, the court held that Walker's subsequent suit against the County did not bar her previously filed suit against the officers under subsection (a). Because thesuit against the officers was based on conduct within the general scope of their employment and could have been brought under the TTCA against the county, the suit is considered to be against the officers in their official capacities only. The court of appeals' judgment is reversed and rendered. Texas Supreme Court, No. 11-0606, 06-06-2014

Practice Areas: Torts

SUPREME COURT OF TEXAS

THE CITY OF WATAUGA, PETITIONER, v. RUSSELL GORDON, RESPONDENT

The plaintiff sued a city for injuries, allegedly accidentally caused by a police officer's use of handcuffs. The court of appeals concluded that the underlying claim was for negligence and therefore affirmed the trial court's order denying the city's governmental-immunity plea. Compliance during an arrest is not legal consent to what otherwise would have been alleged battery. The pleadings do not state a claim for which governmental immunity has been waived under the Tort Claims Act. The court of appeals' judgment is reversed and a judgment of dismissal is rendered. Texas Supreme Court, No. 13-0012, 06-06-2014

Practice Areas: Torts

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BLUEBONNET HOTEL VENTURES, L.L.C., PlaintiffAppellant v. WELLS FARGO BANK, N.A., DefendantAppellee

The district court granted summary judgment for the appellee bank on the appellant's claim for rescission of contract. The appellant maintains that its cause for entering into the swap agreement was to fix the rate on variable rate bonds, contingent on the bank issuing a letter of credit for the bonds, and that cause allegedly failed when the appellant was unable to obtain a letter of credit from any financial institution that would finalize the bond financing. The swap agreement confirms that the appellant entered into the swap agreement in order to receive the difference between the floating and fixed interest rates in the event that the floating rate exceeded the fixed rate. The appellant has never alleged that this cause failed. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-30827, 06-06-2014

Practice Areas: Banking and Financial Institutions

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

SEALED APPELLEE 1, Petitioner-Appellee, v. SEALED APPELLANT 1, Respondent-Appellant.

The appellant, a federal prisoner, challenges her commitment to a mental-health treatment facility within the federal prison system. The government may pursue a 18 U.S.C. §4245 commitment proceeding when the subject of the proceeding voluntarily resides in the facility to which the government seeks commitment. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-10153, 09-06-2013

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JACKIE COX; RICKY LEE COX, Plaintiffs - Appellants v. WAL-MART STORES EAST, L.P., Defendant - Appellee

In this premises liability case, the district court granted summary judgment to the appellee finding that the alleged defect in a door threshold was not unreasonably dangerous as a matter of law. the district court erred in extending Mississippi's categorical exemption to defective thresholds. The instant case does not involve a known, permanent, or visible condition, but an alleged defect that caused the threshold to unexpectedly move up and down; such an allegation is sufficient for a reasonable jury to conclude that it creates an unreasonable or unusually dangerous condition. The district court's judgment is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-60454, 06-10-2014

Practice Areas: Torts

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JOHEL AMILCAR CONTRERAS, also known as Pablo Contreras Villalta, Petitioner v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL, Respondent

The petitioner was denied special rule cancellation of removal under §203 of the Nicaraguan Adjustment and Central American Relief Act because the Board of Immigration Appeals considered his 1992 Virginia conviction for "carnal knowledge of a child between 13 and 15years of age" an "aggravated felony" as defined by the Immigration and Nationality Act. The appellant's conviction under the Virginia statute necessarily means that he has also been convicted of sexual abuse of a minor, an aggravated felony within the INA. The petition for review is denied. 5th U.S. Circuit Court of Appeals, No. 13-60407, 06-06-2014

Practice Areas: Immigration Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

WHITEHOUSE HOTEL LIMITED PARTNERSHIP; QHR HOLDINGS NEW ORLEANS LIMITED, Tax Matters Partner, Petitioners Appellants v. COMMISSIONER OF INTERNAL REVENUE, Respondent Appellee

The appellant challenges a ruling of the U.S. Tax Court disallowing a significant portion of a tax deduction claimed for a historic conservation easement and the tax court's enforcement of a 40 percent gross overstatement penalty. The tax court did not err in rejecting the reproduction cost method and income method for valuation of the easement. Following the advice of accountants and tax professionals may be sufficient to meet the requirements of the good faith defense, especially in regard to such a complex task that involves so many uncertainties. The tax court's valuation is affirmed, the undervaluation penalty is vacated, and the case is remanded. 5th U.S. Circuit Court of Appeals, No. 13-60131, 06-11-2014

Practice Areas: Taxation

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

GARY SAWYER; DOUG KEMPF; PETER BARNABA, SR.; GEOFF RORREV; TIM GREGORY; ET AL, Plaintiffs - Appellants v. E I DUPONT DE NEMOURS & COMPANY, Defendant - Appellee

Sixty-three former employees of E.I. DuPont de Nemours and Company's Porte, Texas manufacturing facility sued DuPont, alleging that the company fraudulently induced them to terminate their employment with DuPont and accept employment with a wholly-owned subsidiary. The non-covered employees are at-will employees who, under Texas law, may not bring fraud claims for the termination of their employment. While the CBA altered the covered employees' at-will status, they too cannot bring fraud actions because their remedies are limited to those provided in the CBA. The district court's summary judgment in favor of DuPont is affirmed. 5th U.S. Circuit Court of Appeals, No. 11-40454, 06-11-2014

Practice Areas: Labor and Employment

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ANGELICA LOPEZ SANCHEZ, Plaintiff - Appellee v. R. G. L., as next friend Alex Hernandez; S. I.G. L., as next friend Alex Hernandez; A. S.G. L., as next friend Alex Hernandez, Movants - Appellants

Three children who are natives of Mexico, through a next friend, appeal the district court's finding under the Hague Convention on the Civil Aspects of International Child Abduction that they were being wrongfully retained in the United States and should be returned to their mother. While this appeal was pending, the United States Citizenship and Immigration Services granted the children asylum. The current legal custodian of the children, the federal Office of Refugee Resettlement, should be joined as a party. The district court's order to return the children is vacated and the case is remanded. 5th U.S. Circuit Court of Appeals, No. 12-50783, 06-05-2014

Practice Areas: Family Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

LINDSEY GREEN; BRENDA GREEN, Plaintiffs-Appellants, v. LIFE INSURANCE COMPANY OF NORTH AMERICA, Defendant-Appellee.

Life insurance beneficiaries appeal summary judgment in favor of the insurer. Under the policies' exclusions, Mississippi law clearly applies to interpret "intoxicated" and not "vehicle." The plain meaning of the word "vehicle" as used in the policies is unambiguous and broad enough to encompass a boat. The district court's summary judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-60049, 06-11-2014

Practice Areas: Insurance Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

GE CAPITAL COMMERCIAL, INCORPORATED; GENERAL ELECTRIC CAPITAL CORPORATION; GE CAPITAL FINANCIAL, INCORPORATED, Plaintiffs - Appellees v. WORTHINGTON NATIONAL BANK, Defendant - Appellant

The appellant contends that either the Texas Uniform Fraudulent Transfer Act or the common-law one-satisfaction rule entitles it to a settlement credit for the appellee's prior settlement with a non-defendant, and that the district court erred in construing TUFTA. The Texas Supreme Court would not find that "claim" in TUFTA §24.009(b) encompasses a separate legal right arising not from TUFTA but from the same underlying factual injury. In Texas Supreme Court jurisprudence, the one-satisfaction rule is a tort law contribution doctrine, and its application has generally been limited to cases in which a plaintiff settles with an alleged joint tortfeasor. The Texas Supreme Court would treat TUFTA's good faith standard as an objective standard, and would not adopt the subjective "secret agreement" standard of Hawes. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-10171, 06-10-2014

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee v. JOHNNY LEE DAVIS, Defendant-Appellant

The appellant was convicted following a bench trial of allegedly passing an altered obligation of the United States with intent to defraud and was sentenced to a 34-month term of imprisonment. The appellant failed to object during the bench trial to the requirement that he stand trial handcuffed and shackled. The appellant failed to provide authority for the proposition that Deck should be extended to bench trials, and even assuming Deck's application, the record demonstrates circumstances making it apparent that shackling is justified. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-40612, 06-06-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

FERMIN GARZA, JR., Appellant, v. ESTAKFI VARGAS AND ESPERANZA VARGAS, Appellees.

The appellant challenges a judgment awarding the appellees title to certain real property by adverse possession. Because the court reporter allegedly lost the record, the record is necessary to resolution of the appeal and the record cannot be replaced by agreement of the parties, the appellant is entitled to a new trial. The trial court's judgment is reversed and remanded. El Paso Court of Appeals, No. 08-13-00116-CV, 05-30-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

THE STATE OF TEXAS FOR THE BEST INTEREST AND PROTECTION OF R.P.

The appellant challenges a judgment ordering temporary inpatient mental health services. The probate court could have reasonably found that walking into the desert without food or water is an overt act which tends to confirm that the appellant poses a likelihood of serious harm to himself, even though a doctor admitted that the appellant was thinking more clearly at the hearing and had not done anything showing he likelly would harm himself in a hospital setting. Evidence that appellant is voluntarily taking his medication in the hospital setting does not demonstrate that he has the ability to make a rational and informed decision whether or not to submit to treatment. The probate court's judgment is affirmed. El Paso Court of Appeals, No. 08-13-00180-CV, 05-30-2014

Practice Areas: Health Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ALBERTO ELIZONDO-HERNANDEZ, Defendant-Appellant.

The appellant contends that the district court erred in applying a sixteen-level crime-of-violence enhancement pursuant to U.S. Sentencing Guidelines §2L1.2(b)(1)(A)(ii) based on his Texas conviction of alleged indecency with a child. Although Rodriguez created a new plain-meaning approach for offense categories that were not defined at common law, such as sexual abuse of a minor, that determination does not effect the imposition of an enhancement under §2L1.2(b)(1)(A)(ii) where the defendant's conviction is under a statute like Texas Penal Code §21.11(a)(1). Also, to the extent that the court treated the Texas conviction as an aggravated felony, the appellant failed to show error. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-40887 Summary Calendar, 06-09-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

TETRA TECHNOLOGIES, INCORPORATED; MARITECH RESOURCES, INCORPORATED, Plaintiffs - Appellees v. CONTINENTAL INSURANCE COMPANY, Defendant - Appellant

This appeal arises from an insurance coverage dispute concerning an industrial accident. Where a court disposes of an affirmative defense, or even every affirmative defense raised by the defendant, the court still has not disposed of a "claim" for Federal Rule of Civil Procedure 54(b) purposes unless it makes an express holding as to liability. Where the district court rules on some issues concerning a claim, but declines to complete the analysis because there are fact issues extant, the court may not certify the issues it has ruled on for appeal under Rule 54(b). A district court does not resolve a claim merely by ruling on a threshold legal issue relevant to that claim. The appeal is dismissed for want of jurisdiction. 5th U.S. Circuit Court of Appeals, No. 13-30516, 06-10-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

GENERAL METAL FABRICATING CORPORATION, GMF LEASING INC., AND ARNOLD CURRY, Appellants v. JOHN STERGIOU AND MAIN MARINE REPAIR AND INDUSTRIAL CLEANING CO., Appellees

Like most settlement agreements, the Rule 11 agreement here included essential terms for the payment of money in exchange for the performance of some act: the appellee would return his shares of the appellants' stock, the appellants would pay $300,000, and together the parties would dismiss the lawsuit with prejudice. The Rule 11 agreement required the parties to execute additional documents: a promissory note, deed of trust, security agreement, and any necessary financing statements. The particular terms of the additional documents were not essential and therefore did not destroy the Rule 11 agreement's effectiveness, and therefore the Rule 11 agreement is not an unenforceable "agreement to agree." The trial court's judgments are affirmed. Houston's 1st Court of Appeals, No. 01-11-00460-CV, 05-29-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FIFTH DISTRICT, DALLAS

DALLAS AREA RAPID TRANSIT, Appellant v. DAVID MORRIS, Appellee

The appellant, a public transportation authority, challenges the trial court's judgment rendered for the appellee who alleges he was injured on a bus due to the negligent operation of a bus. A plaintiff is not required to plead the applicable standard of care in a negligence claim in order to meet the fair notice requirement of Texas Rule of Civil Procedure 45. In the absence of a court order granting a special exception, the plaintiff was not required to plead the "high degree of care" standard applicable to a common carrier in his petition. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-01133-CV, 05-29-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Barry BROOKS, Heston C. King, Stefen Douglas Brooks, Johanna Barton, and Jesse Rodriguez Benavides, Appellants v. EX EXCELLENCE MORTGAGE, LTD., Appellee

The appellants, loan officers, brought suit against their former employer alleging various claims including breach of contract and unlawful restraint of trade. The employment contract signed by each loan officer provided the appellee with the right to seek injunctive relief for the improper use of its confidential information. The trial court properly granted summary judgment in favor of the appellee on the issue of tortious interference with prospective contractual relations. The antitrust allegations are unfounded: the appellee's injunction sought nothing more than to prevent dissemination of the client information in accordance with their employment agreement and there is no evidence the suit was an attempt to prevent the appellants from competing in the loan mortgage business. San Antonio Court of Appeals, No. 04-13-00106-CV, 05-30-2014

Practice Areas: Labor and Employment

COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON

MANUEL RICHARD PENA, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges his conviction for alleged murder. The mere absence of DNA and fingerprint evidence does not affect the legal sufficiency of the evidence actually introduced at trial. That a drape over a courtroom window was closed did not violate the appellant's Sixth Amendment rights. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00372-CR, 06-03-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, ELEVENTH DISTRICT, EASTLAND

THE STATE OF TEXAS, Appellant v. JOHN BERRY JACKSON, Appellee

The state appeals the trial court's grant of a pretrial motion to suppress evidence. The defendant's consent to search the car, the alleged discovery of methamphetamine, and the defendant's statements to the officers cannot be separated from the information obtained from the use of a GPS tracking device, which constituted a search under Jones. Because the alleged methamphetamine was discovered a short time after the officers stopped the defendant's car and because there was no intervening circumstance that provided justification for the search of the car, the taint of illegality had not been purged. An officer's good faith reliance on the law or existing precedent is not recognized as an exception to the Texas exclusionary rule. The trial court's order is affirmed. Eastland Court of Appeals, No. 11-12-00315-CR, 05-30-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, EIGHTH DISTRICT, EL PASO

TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. MERARDO BONILLA, Appellee.

The Texas Department of Public Safety challenges the trial court's denial of its immunity-based plea to the jurisdiction and summary judgment motions. A district reconstruction team's report is an admission by the DPS, and it is admissible pursuant to Texas Rule of Evidence 801(e)(2)(D). The trial court did not err by denying DPS's plea to the jurisdiction based on sovereign immunity via the emergency exception: the evidence creates a fact issue regarding whether the trooper slowed before proceeding through the intersection. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-13-00117-CV, 05-30-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS, SIXTH DISTRICT, TEXARKANA

QUADREUY FLOWERS, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges a search of his cell phone. The appellant consented to a search for a person's number, telling the police the numbder was "saved under 'T-Will.'" Limitations imposed by the defendant in assenting to a request must be explicit. The plain view doctrine applies in situations of consent to cell phone searches. If the police exceeded the scope of consent, any error in admitting the photographs would be harmless. The trial court's judgment is affirmed as modified to reflect an assessment of court costs. Texarkana Court of Appeals, No. 06-13-00102-CR, 06-03-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

IN RE RT SONCY PARTNERSHIP, LTD., RT SONCY MANAGEMENT, LLC, AND CORY STRICKLAND, RELATORS

The relators ask that an order be vacated that directed them to place money into the court registry. The underlying dispute involves the proceeds from the sale of realty. The obligation to arbitrate does not divest the trial court of the authority or jurisdiction to consider requests to protect funds from depletion pending arbitration and otherwise permit arbitration to continue in an orderly manner. Where the record is devoid of evidence that funds are actually in danger of being lost or depleted, a trial court abuses its discretion by ordering them paid into the court's registry. The writ of mandamus is conditionally granted. Amarillo Court of Appeals, No. 07-14-00196-CV, 05-29-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

Chad THOMPSON, Appellant v. CITY OF WACO, Texas and Fire Chief John D. Johnston, Appellees

A firefighter, the appellant, sued after the city denied his request to be reinstated as a fire station lieutenant. The Fire Fighter and Police Officer Civil Service Act force reduction provision is invoked when the commission or a hearing examiner restores a previously indefinitely suspended fire fighter to his former position and the number of classified personnel in that position then exceeds the number of authorized positions. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-13-00460-CV, 05-30-2014

Practice Areas: Labor and Employment

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

PARHAM FAMILY LIMITED PARTNERSHIP AND VAN E. PARHAM, JR., Appellants v. DIANE MORGAN F/KA/ DIANE PARHAM, Appellee;

The plaintiff in the underlying suit sought to avoid a transfer of the subject property as a fraudulent transfer as well as a declaration that the September 22, 2007 deed purporting to accomplish the transfer is void. The appellants argue that the plaintiff cannot have standing because the transfer about which she complains took place nine months prior to the plaintiff's claim against the transferee resulting in judgment. The plaintiff does not lack standing: the Texas Uniform Fraudulent Transfer Act includes "creditor's claim[s that] arose before or within a reasonable time after the transfer was made or the obligation was incurred." The trial court's judgment is affirmed as modified. Houston's 14th Court of Appeals, No. 14-12-00753-CV, No. 14-12-00795-CV, 06-03-2014

COURT OF APPEALS OF TEXAS, SEVENTH DISTRICT, AMARILLO

CHARLES EDWARD HARETER, APPELLANT v. THE STATE OF TEXAS, APPELLEE

The appellant challenges his convictions for alleged possession or promotion of child pornography. An instruction allowing the jury to decide if a letter contained an admission of guilt was not a comment on the weight of the evidence, particularly when the court's instruction, given at appellant's request, limited the availability of the letter for consideration by the jury. The trial court's judgment is affirmed. Amarillo Court of Appeals, No. 07-12-00222-CR, 05-30-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

VICTORIA NORTON, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges the trial court's order revoking her community supervision. A defendant who benefits from the contractual privilege of community supervision, the granting of which does not involve a systemic right or prohibition, must complain in the trial court regarding conditions she finds objectionable. Applying the precedent of the transferor court -- the Waco Court of Appeals -- the absence of appellant's thumbprint from the judgment is a clerical error not subject to a harm analysis. The judgment is affirmed subject to modifiction of the judgment to include the appellant's thumbprint. Houston's 14th Court of Appeals, No. 14-13-00289-CR, 05-29-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

DRAKE INTERIORS, L.L.C., Appellant v. ANDREA MARIE THOMAS AND ROBERT WARREN THOMAS, Appellees

The appellant, a judgment creditor, argues that the trial court erred by declaring that the abstract of judgment did not create a valid lien that attached to certain property. If one spouse incurs a nontortious liability before or during marriage, the entire joint management community property may be reached to satisfy the liability. Texas Family Code §3.202(c) allows creditors to reach joint management community property in satisfaction of both premarital and marital debts that were incurred by a single spouse. If the appellant's lien attached during marriage, then the property is liable. The sole basis for arguing the property was nonexempt was abandonment, which presupposes the property is a homestead. The appellant failed to prove abandonment of the property. The trial court's judgment is reversed and remanded. Houston's 14th Court of Appeals, No. 14-13-00349-CV, 05-29-2014

COURT OF APPEALS OF TEXAS, FOURTH DISTRICT, SAN ANTONIO

IN RE ESTATE OF Alvilda M. AGUILAR, Deceased

This is an attempted appeal from a probate court's order granting a motion to transfer to itself a wrongful death action pursuant to Texas Estates Code §34.001. There is no final judgment that would permit concomitant review of the probate court's transfer order, and there is no statute permitting an interlocutory appeal from the probate court's transfer. Nor is this the type of order that is considered an exception to the one final judgment rule. To treat an appeal as a petition for writ of mandamus, the party seeking appellate review must specifically request that its appeal be treated as a mandamus petition to invoke this court's original jurisdiction. The appeal is dismissed. San Antonio Court of Appeals, No. 04-13-00690-CV, 06-04-2014

Practice Areas: Appellate Law - Civil

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, FOURTEENTH DISTRICT, HOUSTON

JASON ALEXANDER SMITH, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges his conviction for alleged murder. A 14 month delay between arrest and trial did not violate the appellant's right to a speedy trial. Confrontation Clause error does not require reversal unless there is a reasonable possibility that, within the context of the entire trial, the perceived error moved the jury from a state of non-persuasion to one of persuasion on a particular issue; the erroneous admission of the testimony of a DNA laboratory supervisor does not require reversal. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00790-CR, 05-29-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS SEVENTH DISTRICT AMARILLO

BYRON MORGAN, APPELLANT v. D&S MOBILE HOME CENTER, INC. AND SHAWN FULLER, APPELLEES

The movant asks that the appellee show whether or not it is a valid Texas corporation with corporate privileges recognized by the State of Texas. The motion is accompanied by documents purporting to show that the corporation lost its privilege to transact business in Texas, but the authenticity of the documents was not established. The cause is abated and remanded to the trial court. Amarillo Court of Appeals, No. 07-13-00263-CV, 05-27-2014

Practice Areas: Appellate Law - Civil

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

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

COURT OF APPEALS OF TEXAS, FOURTEENTH DISTRICT, HOUSTON

VICTORIA V. OCHSNER, Appellant v. PRESTON A. OCHSNER, Appellee

The appellant appeals the trial court's order denying her motion for enforcement of child support order. Neither party asked the trial court to modify the child support obligations found in the original divorce decree to allow the appellee's payments to a daycare and private schools to constitute child support. Thus, even if the trial court found that the parties agreed that the payment to a daycare and private school constituted child support, such an agreement is unenforceable and is not a proper basis for reducing child support arrearages. The trial court's order is reversed and remanded. Houston's 14th Court of Appeals, No. 14-13-00301-CV, 05-29-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

ROY RODGERS, Appellant v. THE STATE OF TEXAS, Appellee

A jury found the appellant guilty of alleged continuous sexual abuse of a young child and assessed punishment at seventy years' imprisonment. During the punishment phase, the trial court received information from the jury foreman, through the bailiff, that the original verdict of guilty of indecency with a child was not the decision of the jury. Instead, as affirmed by the jury foreman and every other juror after polling, the jury unanimously intended to find appellant guilty of continuous sexual abuse of a young child. The trial court did not err by permitting the jury to correct its verdict during the punishment phase. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-01472-CR, 05-22-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

MICHAEL O. PICKENS, Appellant v. ELIZABETH CORDIA, PAMELA PICKENS, T. BOONE PICKENS JR., AND THOMAS B. PICKENS III, Appellees

The appellees sued the appellant for invasion of privacy by public disclosure of private facts, defamation, statutory libel, and intentional infliction of emotional distress for remarks he published about them on a blog. In addition, an appellee brought a separate claim for harmful access by computer. The trial court granted dismissal of the harmful access by computer claim but denied dismissal of the remaining claims. Evidence including the number of google results and articles about energy did not establish that an appellee was a general-purpose public figure. The motion to dismiss the harmful access claim was based on chapter 27, but because the appellant denies sending the email that is the basis of that claim, it does not implicate the constitutional concerns of that chapter. The dismissal of the harmful access claim is reversed and remanded. The order is otherwise affirmed. Dallas Court of Appeals, No. 05-13-00780-CV, 05-22-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS EIGHTH DISTRICT EL PASO

RAY SALAZAR, RICHARD A. NAJERA, JULIE REYNOLDS, GUILLERMO ACOSTA, OTHON MEDINA, AND JESUS B. OCHOA, JR., Appellants, v. JOYCE WILSON, IN HER PERSONAL CAPACITY AS CITY MANAGER OF EL PASO, TEXAS, STEVE ORTEGA, IN HIS PERSONAL CAPACITY AS REPRESENTATIVE DISTRICT 7 EL PASO, TEXAS, COURTNEY NILAND, IN HER PERSONAL CAPACITY AS REPRESENTATIVE DISTRICT 8 EL PASO, TEXAS, Appellees.

In this class action suit brought on behalf of taxpayers, the trial court granted the appellees' plea to the jurisdiction. A taxpayer plaintiff, like any other plaintiff, carries the initial burden of alleging facts that affirmatively demonstrate the trial court's jurisdiction. For each cause of action presented in their live pleadings, the appellants seek relief in the form of monetary damages. Because they do not seek to enjoin the prospective and illegal expenditure of public funds, the appellants are without standing. The trial court's order is affirmed. El Paso Court of Appeals, No. 08-13-00171-CV, 05-14-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS EIGHTH DISTRICT EL PASO

MARIA CASTRO, Appellant, v. MARTIN AYALA AND THE OFFICE OF THE ATTORNEY GENERAL, Appellees.

The appellant challenges the trial court's denial of her bill of review regarding its order to release child support arrearages. The appellant failed to establish a due process violation; the trial court determined that the appellant understood the terms of the order when she signed it, regardless of whether or not she could read English. Because the appellant's failure to make it known to the court and the other parties that she needed translation services at the time she signed the order constitutes negligence on her part, the trial court did not procedurally err when it dismissed the appellant's bill of review without proceeding to a full trial on the merits of the underlying claim. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00142-CV, 05-14-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS FOURTH DISTRICT SAN ANTONIO

Joseph Lester GREEN, Appellant v. The STATE of Texas, Appellee

The appellant appeals his conviction of alleged aggravated sexual assault of a child. The charge's definitions of "female sexual organ" and "penetration" constituted an improper comment on the weight of the evidence because they focused the jury's attention on the specific type of evidence that would support a finding of the contested element of penetration. Because the error was harmful, the trial court's judgment is reversed and remanded. San Antonio Court of Appeals, No. 04-12-00830-CR, 05-28-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FOURTH DISTRICT SAN ANTONIO

EX PARTE Patricia Foster SKELTON

On rehearing, the court of appeals addresses the appellant's habeas ineffective assistance of counsel claim. There was no strategic value to justify not objecting to testimony specifically discussing the appellant's invocation of her rights. Trial counsel emphasized and highlighted the Ranger's prejudicial testimony on cross-examination. The failure to object to a Texas Ranger's opinion of guilt fell below a reasonable standard of representation. The appellant's Schlup-type claim of actual innocence is improper because this is her first application for habeas corpus. Because the fundamental fairness of the appellant's trial was tainted by the ineffective assistance of her trial counsel, habeas relief is granted. San Antonio Court of Appeals, No. 04-12-00066-CR, 05-28-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS ELEVENTH DISTRICT EASTLAND

TEXAS DEPARTMENT OF TRANSPORTATION, Appellant v. TERESA RENEE ABILA LOPEZ ET AL., Appellees

This case arises from a vehicle accident in which a motorist struck and killed a tow-truck driver who was working to upright a truck. The decision about whether to implement signage is a discretionary act for which immunity is not waived. Appellees presented no evidence as to either the state or the condition of any signage. Additionally, there is no proof that the state or condition of the signage was in the same class as an excavation or obstruction on a highway, road, or street. The trial court erred when it denied TxDOT's motion for summary judgment as it related to the existence and condition of an alleged pothole. The trial court's denial of TxDOT's motion for summary judgment on the issue of existence and the condition of an alleged drop-off is affirmed, the trial court's judgment on all other claims is reversed and those claims are dismissed. Eastland Court of Appeals, No. 11-13-00064-CV, 05-22-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS EIGHTH DISTRICT EL PASO

COUNTY OF EL PASO, TEXAS and EL PASO COUNTY SHERIFF'S DEPARTMENT, Appellants, v. LISA LATIMER, Appellee.

A county argues that due to the untimeliness of her whistleblower suit, the appellee failed to comply with the jurisdictional elements of her cause of action, thus, the trial court lacked jurisdiction over her claims. When it is unclear whether an employer has a post-termination grievance procedure, the terminated employee's notice to the employer that he believes that an adverse personnel action was taken against him due to a good faith report of a violation of the law by the governmental entity, if made within 90 days, is sufficient to toll the limitations period of Texas Government Code §554.005. The trial court's order denying the appellant's plea to the jurisdiction is affirmed. El Paso Court of Appeals, No. 08-13-00082-CV, 05-21-2014

Practice Areas: Labor and Employment

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. REGON HOLLIS HILL, Defendant - Appellant

The appellant challenges a search that resulted in his conviction for alleged possessing a firearm and ammunition after having been convicted of a felony. The appellant and a passenger were approached by police while they sat in a car parked in the lot of an apartment building, on a weekend night. They were not offending any traffic ordinance; there was no evidence of recent crimes in the neighborhood, no reason to suspect that the appellant or his passenger were wanted by the police, and no other reason to believe that anything unusual was taking place. That the encounter occurred at night in a county alleged to be a high crime area does not support a suspicion of criminal activity. That the passenger exited the car rapidly and took steps towards the apartment did not provide reason to suspect criminal activity. The trial court's denial of the motion to suppress is reversed and the conviction and sentence are vacated. U.S. 5th Circuit Court of Appeals, No. 13-60095, 05-29-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

THOMAS W. MCKAY; LETICIA MCKAY, Plaintiffs Appellants v. NOVARTIS PHARMACEUTICAL CORPORATION, Defendant Appellee

This case involves two drugs manufactured and distributed by the appellee. The Judicial Panel on Multidistrict Litigation court granted partial summary judgment for the manufacturer and made two rulings: 1. Texas law applied to the appellants' case, and 2. Texas Civil Practice and Remedies Code §82.007(a) -- providing a rebuttable presumption against liability for failing to warn -- foreclosed the failure to warn claims. On remand, the district court in Texas granted summary judgment against the appellants' remaining claims. Because neither the MDL court nor the remand court erred reversibly, the summary judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-50404, 05-27-2014

Practice Areas: Products Liability

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

CONSUMER SERVICE ALLIANCE OF TEXAS, INC., TITLEMAX OF TEXAS, INC., AND ACE CASH EXPRESS, INC., Appellants v. CITY OF DALLAS, TEXAS, Appellee

The appellants challenged a city ordinance regulating credit access businesses with physical locations inside the city. The appellants appeal the trial court's grant of the city's plea to the jurisdiction. The appellants have failed to show they do not have an adequate remedy at law or that the enforcement of the ordinance will cause them any harm other than that inherent in prosecution for an offense. A court exercising civil jurisdiction lacks jurisdiction to render a declaratory judgment regarding the constitutionality of a criminal statute or ordinance. The trial court's order dismissing the claims is affirmed. Dallas Court of Appeals, No. 05-13-00255-CV, 05-23-2014

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, PlaintiffAppellee v. BOBBY D. CURTIS, DefendantAppellant

The appellant challenges the district court's denial of his motion to vacate his conviction under 28 U.S.C. §2255, arguing that his court-appointed counsel rendered ineffective assistance. 18 U.S.C. § 3284 does not specify a method of computing time, and Federal Rule of Criminal Procedure 45(a) applies. The statute of limitations for the appellant's offense began running the day after his bankruptcy discharge making the indictment against him timely. Because the indictment was timely, he cannot show that he was prejudiced by an attorney's alleged failure to research the applicable statute of limitations in advance of the appellant's guilty plea. A defendant who alleges a failure to investigate on the part of his counsel must allege with specificity what the investigation would have revealed and how it would have altered the outcome of the trial. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-30819, 06-03-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FIRST DISTRICT HOUSTON

BUFFY M. LAWRENCE, Appellant v. THE REYNA REALTY GROUP, Appellee

A real estate broker sued the appellant to recover a broker's commission in connection with the sale of the appellant's home. The broker's late notification to the Real Estate Commission does not bar his recovery of a commission. Because the appellant acknowledged in writing a continuation of the listing agreement under which the broker performed, the listing agreement's integration clause and the appellant's statute-of-frauds defense did not bar the jury's consideration of whether the listing agreement between the parties remained, subject to a modification of its duration or ratification of work done post-termination. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00819-CV, 05-15-2014

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

IN THE MATTER OF THE MARRIAGE OF ASHANTI JOHNSON PYRTLE AND FRANK PYRTLE, III AND IN THE INTEREST OF F.P., A CHILD

Among other issues, the appellant challenges an award of attorney's fees in this divorce case. Even assuming without deciding that the attorney's testimony can be considered for purposes of a lodestar analysis, the record in this case does not show the reasonableness of the hourly rate stated by the attorney, the performance of specific tasks, the time required for those tasks, or the person who performed the work. Even assuming the lodestar method is inapplicable, courts in non-lodestar cases are not precluded from remanding for a new trial on attorney's fees when the evidence is legally insufficient to support such fees. The trial court's judgment is reversed and remanded in part, and otherwise affirmed. Dallas Court of Appeals, No. 05-13-00359-CV, 05-19-2014

Practice Areas: Family Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

AMY R. GORMAN, Plaintiff - Appellant v. VERIZON WIRELESS TEXAS, L.L.C.; VERIZON WIRELESS SERVICES, L.L.C.; GTE MOBILNET OF SOUTH TEXAS, LIMITED PARTNERSHIP, Defendants - Appellees

The appellant alleges retaliation by her employer for her complaint of discrimination and harassment, in violation of the Texas Commission on Human Rights Act. The suit was removed to federal court. The failure to receive a Texas right to sue letter is not a jurisdictional defect. The appellant failed to establish causation. The appellant was fired 10 months after her complaint, significantly discrediting the link between her complaint and firing. The decisionmaker was unaware of the complaint. An independent investigation fairly conducted usually prohibits the ultimate decisionmaker from being considered a "rubber stamp" because it acts as a superseding cause to the termination decision. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-20562, 05-28-2014

Practice Areas: Labor and Employment

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff - Appellee v. SAMUEL CONDE-CASTANEDA, Defendant - Appellant

The appellant was convicted of alleged illegal reentry. Sixteen levels were added to the appellant's offense level because he had previously committed a felony "crime of violence." The predicate offense, a Texas conviction for burglary, constitutes "burglary of a dwelling" under the U.S. Sentencing Guidelines and is therefore a crime of violence. The appellant's written Texas "boiler plate" judicial confession, in which he confessed to "each and every act alleged" in the indictment, is sufficient to establish that his prior conviction rested on every offense the indictment charged. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-10590, 05-28-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FOURTH DISTRICT SAN ANTONIO

Amber WRAY, Appellant v. Jonathon A. PAPP, Appellee

This is a restricted appeal from a final divorce wherein the appellant defaulted. A record is required to be made in all suits involving the parent-child relationship unless waived by the parties with the consent of the court. Although the order in question recites the parties waived the making of a record, the appellant was neither present nor represented by counsel at the hearing; therefore, the making of the record could not be waived as to the appellant, and the trial court erred in consenting to the waiver of the record. The trial court's order is reversed and remanded. San Antonio Court of Appeals, No. 04-13-00374-CV, 05-21-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

PAK FOODS HOUSTON, LLC, Appellant v. MARISSA GARCIA, INDIVIDUALLY AND AS NEXT FRIEND OF S.L., A MINOR, Appellees

The appellant challenges the trial court's order denying its motion to compel arbitration pursuant to the Federal Arbitration Act. The appellee was still a minor when she objected to arbitration and elected to void the contract. The appellees' response filed in opposition to the motion to compel arbitration is a definitive disaffirmance of any agreement to arbitrate. The trial court's order is affirmed. Houston's 14th Court of Appeals, No. 14-13-00409-CV, 05-22-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

VIRGINIA ROE HINTON F/K/A VIRGINIA ROE BURNS, Appellant v. DENIS LYONS BURNS, Appellee

As part of a final decree of divorce,the trial court burdened the appellant's separate property with an equitable lien to secure the judgment. Because there is no evidence that the property on which the trial court imposed the equitable lien, that is, the appellant's separate property, was benefited by a contribution from the appellee's separate property, an equitable lien under Texas Family Code §3.406(a) may not be imposed. The trial court's judgment is affirmed as modified. Dallas Court of Appeals, No. 05-12-01494-CV, 05-22-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

IN THE MATTER OF J.M., A MINOR

The appellant challenges the trial court's judgment adjudicating her a child engaged in delinquent conduct and placing her in an institutional home. The placement followed a 30-day trial period at home to determine whether that environment would allow her to receive the care she needed. The court found that if the appellant remained at home she could not be provided the quality of care and level of support and supervision that she needed to meet the conditions of probation. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-14-00055-CV, 05-22-2014

Practice Areas: Family Law , Juvenile Law

COURT OF APPEALS OF TEXAS SECOND DISTRICT FORT WORTH

GLEN LATEL POWE A/K/A GLEN POWE, APPELLANT v. THE STATE OF TEXAS, STATE

The appellant argues that the trial court abused its discretion by finding true two allegations that he had committed deadly conduct. In light of the uncontested allegations that substantiated the adjudication, the two additional allegations could not have had any perceptible additional negative influence on the sentences the trial court imposed. The appellant's pro se letters to the trial court, even if construed as a motion for new trial, contain bare assertions insufficient to create a record supporting involuntariness of the appellant's plea where no support exists in the appellate record. The trial court's judgment is affirmed. Fort Worth Court of Appeals, No. 02-12-00356-CR, No. 02-12-00357-CR, 05-22-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS SECOND DISTRICT FORT WORTH

DAMIAN LAMON MURKLEDOVE, APPELLANT v. THE STATE OF TEXAS, STATE

The appellant was convicted of alleged capital murder. The charge properly allowed the jury to find the appellant guilty of capital murder under the law of parties. The application of Texas Penal Code §7.02(b) and the inclusion of the definition of the term "conspiracy" from §15.02 did not permit the jury to convict him of capital murder under the theory of party liability if it found him guilty of the offense of conspiracy. The mandatory life sentence required under Texas Penal Code §12.31(a) and Texas Code of Criminal Procedure article 37.071 §1 does not violate the Eighth Amendment or Texas Constitution article I §13. The trial court's judgment is affirmed. Fort Worth Court of Appeals, No. 02-12-00194-CR, 05-15-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS NINTH DISTRICT BEAUMONT

IN RE COMMITMENT OF LESTER WINKLE

The appellant challenges his civil commitment as an alleged sexually violent predator. Texas Rule of Civil Procedure 252 implies that sworn testimony may be considered an adequate substitute for a witness's personal appearance in a civil trial. An expert's testimony on the quality of actuarial predictions compared to predictions based on clinical judgment should not have been excluded on the grounds of relevance or that it was cumulative, but the appellant failed to show that the testimony was reliable. That the judge's campaign slogan was "A PROSECUTOR TO JUDGE THE PREDATORS" did not require recusal. The trial court's judgment is affirmed. Beaumont Court of Appeals, No. 09-13-00347-CV, 05-22-2014

Practice Areas: Health Law

COURT OF APPEALS OF TEXAS FOURTH DISTRICT SAN ANTONIO

PNP PETROLEUM I, LP, PNP Management, Inc., Philip Zaccaria, and Cibolo Energy Operating, Inc., Appellants v. Edna Earnest TAYLOR, Elizabeth Earnest Herbst, and U.S. Enercorp, Ltd., Appellees

The trial court did not have discretion to refuse to consider evidence incorporated into the appellant's motion to reconsider. These appellants were not parties when the appellee's motion for partial summary judgment was filed and were owed an opportunity to be heard in a meaningful manner on the issue of whether the oil-and-gas lease term was extended. Taking into consideration the parties' negotiations as reflected in the lease drafts and the plain language of the lease, the parties did not intend to apply the oil and gas industry's generally accepted meaning of the term "shut-in royalty" in the savings clause. The trial court's orders are reversed and judgment is rendered that the lease term was extended by a payment made by the lessee. San Antonio Court of Appeals, No. 04-13-00445-CV, 05-21-2014

Practice Areas: Energy and Natural Resources

COURT OF APPEALS OF TEXAS SEVENTH DISTRICT AMARILLO

UNIT PETROLEUM COMPANY, APPELLANT v. DAVID POND WELL SERVICE, INC., D/B/A, D.W.P. PRODUCTION, APPELLEE

The appellant appeals an adverse judgment in its action for a declaratory judgment related to the construction of two mineral leases. Under the appellant's lease, the appellant has the right to use the surface area of its leasehold estate to the extent that is reasonably necessary to develop and produce the minerals, including the exclusive executive right to establish a proration unit encompassing any of its leasehold estate, subject to an obligation to designate a sufficient amount and configuration of acreage to permit the appellee, to produce oil, gas and other minerals from the wellbore in accordance with applicable regulatory requirements. The trial court's judgment is rendered and remanded. Amarillo Court of Appeals, No. 07-12-00359-CV, 05-19-2014

Practice Areas: Energy and Natural Resources

COURT OF APPEALS OF TEXAS SEVENTH DISTRICT AMARILLO

DOUGLAS HOOPES, APPELLANT v. THE STATE OF TEXAS, APPELLEE

The appellant challenges his conviction of the alleged felony offense of violation of a protective order. The state's indictment of appellant did not allege the statutory authority under which the protective order was issued, and the evidentiary record is silent on the question. The state was required to show the protective order was issued under the authority of one of the statutes listed in Texas Penal Code §25.07(a). The trial court's judgment is reversed and a judgment of acquittal is rendered. Amarillo Court of Appeals, No. 07-12-00201-CR, 05-22-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS SECOND DISTRICT FORT WORTH

DALWORTH RESTORATION, INC., APPELLANT v. MRS. ANGIE RIFE-MARSHALL, APPELLEE

The appellant contends that the trial court erred by not applying a settlement credit under Texas Civil Practice and Remedies Code §33.012(b). Appellant met its burden to present evidence of the amount of the settlement between appellee and an insurer. Because appellant met its burden, the burden shifted to appellee to show, by presenting the settlement agreement, that she would not receive a double recovery from the settlement and a judgment against appellant (that her damages recited in the settlement and the judgment were separate and not common). A defendant need not plead for a settlement credit in its answer. Because the settlement credit exceeds the amount that the trial court awarded to appellee in its judgment the trial court's judgment is reversed and a take-nothing judgment for appellant is rendered. Fort Worth Court of Appeals, No. 02-12-00381-CV, 05-15-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS SECOND DISTRICT FORT WORTH

FARMERS GROUP INSURANCE, INC., D/B/A FARMERS GROUP INSURANCE, FARMERS INSURANCE EXCHANGE, AND FIRE INSURANCE EXCHANGE, APPELLANTS v. TAMMY POTEET, APPELLEE

An insurer appeals from the judgment rendered on a jury's verdict in favor of the appellee for damages and attorney's fees on her cause of action alleging breach of an appraisal provision. The appraisers might have determined the entire amount of her claimed soot-related loss to her furniture, her carpets, and her house, but they would not have been required to segregate that loss between covered and non-covered damages. Under the doctrine of concurrent causation, this burden belonged to the appellant. She was not entitled to recover under her insurance policy unless she proved that her loss was covered by the policy. The trial court erred in failing to grant the insurer's motion for JNOV. That portion of the judgment awarding the appellant reasonable and necessary attorney's fees incurred as a result of the insurer's failure to comply with the appraisal provision and an amount for reasonable and necessary litigation expenses associated with the insurer's failure to comply with the appraisal provision is affirmed. The judgment is otherwise reversed and remanded. Fort Worth Court of Appeals, No. 02-11-00159-CV, 05-22-2014

Practice Areas: Insurance Law

COURT OF APPEALS OF TEXAS SIXTH DISTRICT TEXARKANA

DEVERON DEON ROGERS, Appellant v. THE STATE OF TEXAS, Appellee

The appellant asserts that the trial court erred by failing to charge the jury on the effects of parole law on his sentence for a state jail felony and by ordering that he pay $140 as restitution to the Department of Public Safety Crime Laboratory without supporting evidence. The Texas Legislature has not mandated a jury instruction regarding either parole or good-conduct time eligibility in state jail felony cases. The record is devoid of evidence regarding the charges upon which the reimbursement order was based. As a result, the reimbursement order lacks sufficient evidentiary support and is deleted from the judgment. The trial court's judgment is affirmed as modified. Texarkana Court of Appeals, No. 06-13-00262-CR, 05-20-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS SIXTH DISTRICT TEXARKANA

JERRY JOHNSON, Appellant v. THE STATE OF TEXAS, Appellee

The appellant complains that his trial counsel was ineffective. Expert testimony that the victim suffered from posttraumatic stress disorder was not an impermissible comment on truthfulness. Trial counsel's performance did not fall below an objective standard of reasonableness by a failure to object to an expert's comment that false accusations of childhood sexual assault are very rare. The testimony was spontaneous on the part of the witness and was not emphasized by the state. Trial counsel acted within the realm of reasonable trial strategy in attempting to present limited character trait evidence. The appellant failed to preserve error regarding alleged prosecutorial conduct because the presentation of punishment range evidence was not flagrant repeated misconduct. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00168-CR, 05-15-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS SIXTH DISTRICT TEXARKANA

IN RE: HUNT COUNTY COMMUNITY SUPERVISION AND CORRECTIONS DEPARTMENT

A county corrections department petitions for writ of mandamus seeking the vacatur of a district court's order waiving community supervision fees. The department has standing and the orders are not appealable. The orders were issued without the determination required by Texas Code of Criminal Procedure Article 42.12 §19(a). The writ of mandamus is conditionally granted. Texarkana Court of Appeals, No. 06-14-00017-CV, 05-23-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS SEVENTH DISTRICT AMARILLO

IN THE INTEREST OF C.L., A CHILD

The appellant challenges the termination of her parental rights. The district clerk filed a request for additional time to file the clerk's record on the ground that the appellant has not paid or made arrangements to pay for the record. The appellant was apparently indigent at trial and, without a change in circumstance, would therefore be entitled to proceed without advance payment of costs. Additionally, an indigent parent responding in opposition to a parental termination case filed by a governmental entity is entitled to a court appointed attorney ad litem. The appeal is abated and remanded. Amarillo Court of Appeals, No. 07-14-00180-CV, 05-19-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS SIXTH DISTRICT TEXARKANA

IN THE MATTER OF THE MARRIAGE OF BINNAABAH FORD AND JOE C. FORD

The appellant argues the trial court abused its discretion in failing to order forfeiture of what the appellant asserts was undisclosed marital property (income the appellee received during the final three years of the marriage) and the failure of the trial court to reconstitute the marital estate. Because the appellant failed to allege a fraud on the community as required by Texas Family Code §7.009, the issue of failure to reconstitute was not properly presented to the trial court. With no evidence any of the income was still on hand at the time of the divorce, there is nothing establishing the existence of property not disposed of in the divorce decree, as contemplated by Texas Family Code §9.203. The trial court's ruling is affirmed. Texarkana Court of Appeals, No. 06-13-00109-CV, 05-22-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS SIXTH DISTRICT TEXARKANA

IN THE INTEREST OF D.W.C., A CHILD

The appellant challenges the modification of a possessory order to conform to a standard possessory order. The appellant contends that the trial court abused its discretion in disallowing a social worker's testimony because she maintains that it was necessary for her to hire her own expert to contrast the written opinions and recommendations of the court-appointed social worker. To the extent the testimony would have conformed to the social worker's report, it is duplicative. Error outside of the report was not preserved because the appellant failed to make an offer of proof. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00045-CV, 05-15-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

STEVEN PHILLIPS, Appellant v. TRACI TUCKER, Appellee

The appellant contends that the trial court erred in awarding to his ex-wife, as a division of maritial property, a portion of his compensation for wrongful imprisonment. The Tim Cole Act does not permit the spouse or former spouse of an exoneree to recover a portion of the compensation awarded under Texas Civil Practice and Remedies Code §103.052 as lost wages. The judgment of the trial court is reversed and rendered. Dallas Court of Appeals, No. 05-13-00210-CV, 05-12-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

DALLAS COUNTY CITY OF GRAND PRAIRIE, GRAND PRAIRIE INDEPENDENT SCHOOL DISTRICT, DALLAS COUNTY COMMUNITY COLLEGE DISTRICT, PARKLAND HOSPITAL DISTRICT, DALLAS COUNTY SCHOOL EQUALIZATION FUND, Appellants v. BOBBY E. SIDES AND MARSHA LYNNE SIDES, Appellees

Taxing authorities challenge the trial court's order finding that they lacked standing and the exclusion of evidence of abandonment of a property. Though Texas law does not recognize abandonment of title to real property, the taxing authorities argue that appellees abandoned or waived their "incorporeal rights" associated with the property, including the right to claim excess proceeds from the sale of the property. Because the appellees made a claim based on ownership, within two years, they were entitled to the excess proceeds of the sale of the property. None of the Taxing Authorities' evidence concerning activities or conditions on the property was relevant to the trial court's inquiry of who was entitled to the excess proceeds. The trial court's order is affirmed. Dallas Court of Appeals, No. 05-13-00067-CV, 05-08-2014

Practice Areas: Taxation

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

IMAGINE AUTOMOTIVE GROUP, IMAGINE AUTOMOTIVE GROUP, I., L.P., ECARLINK, L.P., ECARLINK GP, INC., BRETT STACY, AND LEN CRITCHER, Appellants v. BOARDWALK MOTOR CARS, LTD. D/B/A BOARDWALK PORSCHE, BOARDWALK AUTOMOBILES, LTD. D/B/A BOARDWALK AUDI, AND BOARDWALK TRANSPORTATION, L.P. D/B/A BOARDWALK VOLKSWAGEN, Appellees

The trial court struck the appelants' pleadings as a sanction for alleged discovery abuse. When confronted with an incomplete record, the omitted portions are presumed relevant to the appeal and the evidence contained within the omitted portions of the record is presumed to support the trial court's judgment. The trial court did not fail to consider lesser sanctions; the trial court made repeated efforts to obtain compliance with the appellant's discovery obligations. The specific discovery abuse of failing to produce documents was remedied by excluding those documents from the evidence. Allowing appellants to offer that same proof to negate causation of damages would effectively lift the sanction. The trial court did not abuse its discretion in assessing sanctions only against appellants, and not against counsel. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-11-01119-CV, 05-07-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS FIRST DISTRICT HOUSTON

CAROLYN CALKINS JAMES, INDIVIDUALLY AND AS NEXT FRIEND OF HER ELDERLY MOTHER, MARY OLIVE CALKINS, Appellant v. HONORABLE OLEN UNDERWOOD, HONORABLE PATRICK SEBESTA AND FIDELITY AND DEPOSIT COMPANY OF MARYLAND, RICHARD STEPHEN CALKINS AS AGENT IN FACT FOR MARY OLIVE CALKINS AND MICHAEL EASTON, INDIVIDUALLY AND AS ASSIGNEE OF RICHARD STEPHEN CALKINS, Appellees

The appellant argues that the trial court erred in dismissing her claims against two judges, contending that the first judge was required to sever a claim in intervention and the second judge had no jurisdiction to subsequently preside over the probate matter. The acts complained of are judicial, and each judge had jurisdiction. Judicial immunity attaches even if a judge's action in exercising his authority is allegedly flawed in substance or procedure-- the only question is whether the judges had jurisdiction. To the extent any individual has a claim for damages arising from a probate judge's alleged neglectful management of a guardianship or a ward, the claim comes within the subject matter jurisdiction of the courts only if those statutory duties have attached. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00277-CV, 05-08-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS TENTH DISTRICT WACO

SOUTHERN COUNTY MUTUAL INSURANCE COMPANY, Appellant v. GREAT WEST CASUALTY COMPANY, Appellee

The appellee, an insurance company, sued the appellant, an insurance company, to collect on a judgment rendered in favor of the appellee against the appellant's insured. Tyron Black was injured in a vehicle collision with an employee of the insured and his business while the employee was acting in the course and scope of his employment. The dispute is between the appellee, who paid Black's personal injury expenses, and the appellant who was obligated pursuant to the MCS-90 to pay the judgment against the appellant's insured for Black's expenses. The appellee is entitled to payment from the appellant under the MCS-90 endorsement and the Workers' Compensation Act to satisfy the judgment against the insured. The trial court's judgment is affirmed. Waco Court of Appeals, No. 10-14-00032-CV, 05-22-2014

Practice Areas: Insurance Law

COURT OF APPEALS OF TEXAS SIXTH DISTRICT TEXARKANA

JOHAUN DUPREE, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges his conviction of alleged possession of a weapon in a prohibited place, the campus of Kilgore College. There is no evidence in the record that the appellant entered a building or a portion of a building on the Kilgore College campus while possessing a handgun. Texas Penal Code §46.03 applies to possession of a weapon in a "building or a portion of a building." Nothing in the Legislature's definition of "premises" deviates from the plain meanings of the words "building or a portion of a building." The appellant's conviction is reversed and a judgment of acquittal is rendered. Texarkana Court of Appeals, No. 06-13-00067-CR, 05-16-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS SIXTH DISTRICT TEXARKANA

KEN LANDERS AND HIS WIFE, CLARLINDA LANDERS, Appellants v. AURORA LOAN SERVICES, LLC, AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., AS NOMINEE FOR AURORA LOAN SERVICES, LLC, Appellees

The appellants challenge a summary judgment against them on their fraud claim related to their attempts to acquire a lower interest rate and payments on their home mortgage. There was no contract on which suit could be brought, therefore, this is not a case where the fraud claim is actually a claim for breach of contract. There is no evidence evidence of any effort by the lender to manipulate information to actively mislead the the appellants, or customers in general, by limiting information available to certain employees. For a fraud claim to survive, the company agent that makes the representation must have the requisite mental state. There is no evidence raising a fact issue concerning whether the speaker was reckless about the truth. The trial court's summary judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00131-CV, 05-16-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS SIXTH DISTRICT TEXARKANA

IN RE: TIMOTHY LEE ROBINSON

The relator filed a petition for writ of mandamus requesting this court to order an unspecified district court in Titus County to adjudicate that the petitioner is entitled to the return of $1,155 seized in 2005. The petition is not accompanied by a certified or sworn copy of the motion that is the subject of his complaint, as is required by Texas Rule of Appellate Procedure 52.3. The record is inadequate to grant mandamus relief. Texarkana Court of Appeals, No. 06-14-00039-CV, 05-15-2014

Practice Areas: Appellate Law - Criminal , Criminal Law

COURT OF APPEALS OF TEXAS SIXTH DISTRICT TEXARKANA

IN RE: DAVID. J. INGRAM

The relator challenges several orders of the trial court. Although the relator alleges that he filed an amended pleading raising breach of the settlement agreement and/or fraud in its inducement, this pleading is not included in the mandamus record. Mandamus is denied based on the availability of adequate remedy by law. Whether the trial court erred in its determination that the Rule 11 agreement is valid and binding is an issue that can be presented on direct appeal. Whether the trial court erred in its rulings on the disputed discovery is likewise an issue that can be presented on direct appeal. The petition for writ of mandamus is denied. Texarkana Court of Appeals, No. 06-14-00032-CV, 05-14-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS SIXTH DISTRICT TEXARKANA

JAMES J. NAPLES, Appellant v. M. MARK LESHER AND WIFE, RHONDA LONG LESHER, Appellees

This dispute concerns proceeds from the sale of timber and minerals on a jointly owned property. The trial court found that the claims related to minerals were barred by the statute of limitations. Summary judgment was not proper concerning royalty payments made in 2006 that were not mentioned in a 2005 letter. A 2007 letter shows that the appellant was aware of missing timber, so those claims are barred by limitations. The trial court erred in finding no fiduciary duty applied to the timber claims; partners owe each other and the partnership a fiduciary-like duty in the conduct of partnership business and that liability flows from a breach of that duty. The trial court's judgment is affirmed in part, and reversed and remanded in part. Texarkana Court of Appeals, No. 06-13-00059-CV, 05-08-2014

Practice Areas: Appellate Law - Civil

SUPREME COURT OF TEXAS

AMEDISYS, INC. D/B/A AMEDISYS TEXAS, LTD., PETITIONER, v. KINGWOOD HOME HEALTH CARE, LLC D/B/A HEALTH SOLUTIONS HOME HEALTH, RESPONDENT.

Under Texas Rule of Civil Procedure 167 a party may recover certain litigation costs if the party made, and the party's opponent rejected, a settlement offer that was significantly more favorable than the judgment obtained at trial. The court of appeals found that no settlement agreement existed here because the petitioner had not accepted all of the offer's material terms. The petitioner sought to enforce a contract, not to recover litigation costs, and to prevail on that claim it had to establish the existence of a valid contract under the common law, including the elements of offer and acceptance. The petitioner's email and letter constitute prima facie evidence of a clear intent to accept the settlement offer and did not indicate that acceptance was conditioned on the alteration of any material terms. The court of appeals' judgment is reversed and remanded. Texas Supreme Court, No. 12-0839, 05-09-2014

Practice Areas: Appellate Law - Civil

COURT OF CRIMINAL APPEALS OF TEXAS

MICHAEL COOPER, Appellant v. THE STATE OF TEXAS

The appellant was convicted of five counts of aggravated robbery arising from a single home invasion. Two counts pertain to a first complainant, two counts to a second complainant, and one count to a third complainant. Appellant's convictions violate the double-jeopardy clause. The court of appeals' judgment is reversed and remanded. Court of Criminal Appeals, No. PD-1022-12, 05-14-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

RICHARD BOWMAN, Appellant v. EL PASO CGP COMPANY, L.L.C., Appellee

El Paso CGP Company, L.L.C. (El Paso), a judgment creditor, sued Richard Bowman, the appellant, for allegedly fraudulent transfers that El Paso's judgment debtor, Atasca Resources, Inc., made to Bowman. El Paso moved for a traditional summary judgment on its own claim, and the trial court awarded El Paso a judgment against Bowman for $987,915.82. The determination of reasonably equivalent value requires focusing on the substance of what occurred between Bowman and Atasca: the owner of a closely held company transferred assets to and from his company, with no net loss to the company. It is impossible to determine as a matter of law from this summary judgment record that Bowman's promises to repay Atasca were not reasonably equivalent in value to the transfers to him in light of the evidence that Bowman repeatedly fulfilled his promises and transferred more money to Atasca than he received. The trial court's judgment is reversed and remanded. Houston's 14th Court of Appeals, No. 14-13-00441-CV, 05-08-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS FIRST DISTRICT HOUSTON

ANGLO-DUTCH PETROLEUM INTERNATIONAL, INC. AND ANGLO-DUTCH (TENGE), LLC, Appellants v. CASE FUNDING NETWORK, LP, 3K PARTNERSHIP, PROSPERITY SETTLEMENT FUNDING, INC., LAWSUIT FINANCIAL, LLC, FUTURE SETTLEMENT FUNDING OF SC, INC., ROBERT M. PRESS, NEW AMSTERDAM CAPITAL PARTNERS, INC., RYAN BROOKS, JOSEPH DINARDO, JOSEPH GIURINTANO, PLAINTIFF SUPPORT SERVICES, INC., ROBERT E. HILL, AND ANZAR SETTLEMENT FUNDING CORP., Appellees

The appellant contends that the trial court erred in denying its plea in abatement and concluding that two release investors had the capacity to bring suit in Texas, that there is insufficient evidence to support the trial court's finding that the appellant fraudulently induced the release investors to sign release agreements, and that the trial court erred in awarding the release investors their attorneys' fees and not awarding the appellant its attorneys' fees. Under Nevada law, the loss of the capacity to maintain a suit is not among the penalties imposed for the administrative default of a corporation. Even when the subject matter of a contract is in Texas, courts look to the transaction itself and whether the transaction occurred entirely within one state when deciding whether a foreign-filed entity may maintain suit in Texas. Attorneys' fees incurred to defeat a counterclaim that must be overcome to recover fully on a contract need not be segregated. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00539-CV, 05-13-2014

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS FOURTH DISTRICT SAN ANTONIO

EX PARTE Richard Anthony BALDEZ

The appellant challenges the trial court's order denying his post-conviction application for writ of habeas corpus as frivolous. In the context of both habeas petitions and motions for new trial, the absence of a verification does not prevent the trial court from acting or the appellate court from reviewing the trial court's action. On their face, the application and affidavits submitted by the appellant indicate that appellate counsel failed to notify appellant of his right to file a pro se petition for discretionary review. It was error to find the application frivolous, because the face of the application does not show that the appellant is manifestly entitled to no relief. The trial court's order is reversed and remanded. San Antonio Court of Appeals, No. 04-13-00494-CR, 05-14-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

IN RE JULIE HANNAH, Relator

The relator asks the court to compel a Harris county judge to vacate two companion orders transferring venue of the underlying litigation to the County Court at Law of Aransas County. Although the gravamen of relator's suit is that relator was disinherited as a result of the defendants' alleged actions, that fact alone is insufficient to make her suit a probate proceeding. The only connection between relator's suit and the decedent's estate is the measure of damages-i.e., what, if anything, relator would have received through probate proceedings were it not for the defendants' alleged actions. The suit is not a matter related to a probate proceeding pursuant to the Texas Estate Code. The petition for writ of mandamus is conditionally granted. Houston's 14th Court of Appeals, No. 14-14-00126-CV, 05-13-2014

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ROY ECKHARDT; YOLANDA C. ECKHARDT, Plaintiffs Appellants v. QUALITEST PHARMACEUTICALS, INCORPORATED; WYETH, INCORPORATED, individually and as Successor-in-Interest to A.H. ROBINS COMPANY, INCORPORATED and AMERICAN HOME PRODUCTS; SCHWARZ PHARMA, INCORPORATED; VINTAGE PHARMACEUTICALS, L.L.C., Defendants Appellees

The plaintiff appeals judgment against him in his suit alleging damages resulting from his prolonged use of a medicine. The trial court dismissed the claims brought against brand-name defendants and granted summary judgment to the generic manufacturers. The generic defendants were estopped under federal law from unilaterally providing stronger warnings. The strict-liability design-defect claim is pre-empted by federal law. The claims against the brand-name defendants are essentially product liability claims for which there is no liability. The parallel claims were not adequately pleaded. A brand-name manufacturer does not owe a duty to consumers who use a generic version of the drug. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-40151, 05-13-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS NINTH DISTRICT BEAUMONT

KBMT OPERATING COMPANY, LLC, KBMT LICENSE COMPANY, LLC, BRIAN BURNS, JACKIE SIMIEN AND TRACY KENNICK, Appellants v. MINDA LAO TOLEDO, Appellee

A doctor brought a defamation suit against media defendants following their report of a Texas Medical Board agreed order. The trial court denied the media defendants' Texas Citizen Participation Act motion to dismiss. While it is true that the plaintiff is a pediatrician and that the TMB did discipline her for having improper sexual contact with a patient, the media defendants' decision to place these two facts together in the same sentence, particularly with the word "pediatrician" being used, in essence, as the subject of the phrase "engaged in sexual contact with a patient," resulted in a statement that was reasonably capable of being interpreted by the average listener as stating that the doctor was punished for having improper sexual contact with a child. The TMB agreed order did not specify the age of the patient referred to, and the doctor asserts that he was an older adult male for whom she purchased testosterone injections. The "fair report" privilege does not apply. The trial court's denial of the motion to dismiss is affirmed. Beaumont Court of Appeals, No. 09-13-00234-CV, 05-08-2014

Practice Areas: Torts

COURT OF CRIMINAL APPEALS OF TEXAS

ROBERT WHITFIELD, Appellant v. THE STATE OF TEXAS

The trial court held a Texas Code of Criminal Procedure Chapter 64 hearing and found no reasonable probability that the appellant would not have been convicted had the results been available at his trial. The court of appeals dismissed for want of jurisdiction. Holloway was wrongly decided. The courts of appeals may consider the sufficiency of the evidence and other grounds of appeal of chapter 64 hearings, except that they have no jurisdiction to consider DNA-testing appeals in death-penalty cases. After a final decision of a court of appeals of a DNA-testing appeal in a non-death-penalty case, the results of the proceeding may be used for an application for post-conviction habeas-corpus relief under Article 11.07. The court of appeals' decision is reversed and remanded. Court of Criminal Appeals, No. PD-0865-13, 05-07-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

EX PARTE ROBERT JAMES CAMPBELL

This is a subsequent application for a writ of habeas corpus and a motion to stay applicant's execution. The applicant asserts that he is mentally retarded and therefore his application will violate the Eighth Amendment. The allegations do not satisfy Texas Code of Criminal Procedure Article 11.071 §5. The application is dismissed, the court declines to re-open prior writ applications, and the stay is denied. Court of Criminal Appeals, No. WR-44,551-05, 05-08-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

RAMON PEREZ, Appellant v. THE STATE OF TEXAS

The court of appeals affirmed the conviction of the appellant. At trial, and without objection, the indictment was amended. The appellant had actual notice of the amendments, six counts were eliminated and the remainder reorganized without altering the language of the old charges. The court of appeals' judgment is affirmed. Court of Criminal Appeals, No. PD-1380-13, 05-14-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS THIRD DISTRICT AUSTIN

Texas Entertainment Association, Inc. and Karpod, Inc., Appellants // Susan Combs, Comptroller of Public Accounts of the State of Texas, and Greg Abbott, Attorney General of the State of Texas, Cross-Appellants v. Susan Combs, Comptroller of Public Accounts of the State of Texas, and Greg Abbott, Attorney General of the State of Texas, Appellees // Texas Entertainment Association, Inc. and Karpod, Inc., Cross-Appellees

The trial court concluded that the sexually-oriented-business tax is an occupation tax that does not violate the Texas Constitution. The sexually-oriented-business tax is a general excise tax rather than an occupation tax, therefore there is no requirement that 25% of its revenue go to public schooling. The sexually-oriented-business tax's classification is not unreasonable because limiting the tax's applicability to businesses with audiences of two or more reasonably relates to adverse secondary effects that the tax is intended to address; the tax does not violate the Equal and Uniform Clause of the Texas Constitution. The trial court's judgment is reversed and rendered in part and affirmed. Austin Court of Appeals, No. 03-12-00527-CV, 05-09-2014

Practice Areas: Taxation

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

STEPHEN MARSHALL GABARICK, on behalf of himself and all others similarly situated; ET AL, Plaintiffs v. LAURIN MARITIME (AMERICA) INCORPORATED; ET AL, Defendants;AMERICAN COMMERCIAL LINES, L.L.C., Plaintiff-Appellant v. D.R.D. TOWING COMPANY, L.L.C., Defendant-Appellee UNITED STATES OF AMERICA, Intervenor-Appellee

The appellant challenges the district court's dismissal that found tthe appellant's position that certain vessel chartering agreements were void ab initio clearly contradicted its earlier position in a related proceeding that the charters were valid. The two positions are inconsistent. The court of appeals rejects the appellant's argument that, in the former limitations action, it only posited that the agreements were intended to be valid charters. Once a court has accepted and relied upon one of a party's several alternative positions, any argument inconsistent with that position may be subject to judicial estoppel in subsequent proceedings. The district court did not require the appellant to adopt the position it later sought to contradict, and it is not inequitable to apply judicial estoppel. The district court's dismissal is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-30739, 05-21-2014

Practice Areas: Admiralty

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, PlaintiffAppellee v. MARTIN VILLEGAS PALACIOS, also known as Martin Villegas, DefendantAppellant

At sentencing, the government withheld an additional one-level reduction under U.S. Sentencing Guidelines Manual §3E1.1(b) for pretrial acceptance of responsibility solely because the defendant refused to waive his right to appeal. Amendment 775, which became effective Nov. 1, 2013, after the appellant was sentenced but while this appeal was pending, applies here. The government should not withhold a §3E1.1(b) motion based on the defendant's decision not to waive appeal. The sentence is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 13-40153, 05-21-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Plaintiff-Appellee, v. LOGISTICARE SOLUTIONS, LLC; ALBERT GRAHAM, Defendants-Appellants.

A volunteer driver for LogistiCare Solutions, LLC provided non-emergency medical transportation services for Medicaid patients using an automobile insured by State Farm Mutual Automobile Insurance Company. Following an accident, the driver and LogistiCare were sued in Mississippi state court. The district court granted summary judgment for State Farm, and denied summary judgment for the heirs and LogistiCare, as to the duties to defend and indemnify. The "for a charge" exclusion does not apply merely because the driver was reimbursed for mileage expenses. Looking at the complaint, the "for a charge" exclusion does not apply and the insurer has a duty to defend. Looking at the entire record, the driver intended to and did profit from her arrangement with LogistiCare. These facts trigger the applicability of the "for a charge" exclusion and absolves the insurer of its duty to indemnify. The district court's judgment is affirmed in part, reversed in part, and remanded. 5th U.S. Circuit Court of Appeals, No. 13-60287, 05-23-2014

Practice Areas: Insurance Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff Appellee v. RICARDO HINOJOSA, Defendant Appellant

The appellant pleaded guilty to one count of possession with intent to distribute 211 kilograms of marijuana. As a sentencing factor, the district court found that he was responsible for 2,648.8 additional kilograms of marijuana. The district court found that the additional amounts were part of a common scheme or plan -- it's immaterial that the conduct occurred before this offense. The Guidelines do not contain any prohibition, for relevant conduct purposes, on activities occurring during a scheme that spans from before a defendant reaches the age of majority to after he reaches the age of majority. The sentence is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-40351, 05-20-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

EDWARD TUCK COLBERT; KENYON & KENYON L.L.P., Plaintiffs-Appellees, v. THEODORE BRENNAN, Defendant-Appellant.

The plaintiff-appellees filed this suit -- a revocatory action and oblique action -- against the defendant-appellant seeking to collect on a judgment. The appellant voluntarily dismissed his appeal, placing himself in the same position as someone who had never filed an appeal. The appellant moved this court to reinstate his appeal five months after the judgment and two months after dismissing his appeal-well outside of the time limit set by Federal Rule of Appellate Procedure 4(a)(1)(A) for civil appeals. Therefore, his motion to reinstate was ineffective and there is no operative timely filed notice of appeal. The appeal is dismissed. 5th U.S. Circuit Court of Appeals, No. 13-30069, 05-09-2014

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JOSEPH ALFONSO, IV, Plaintiff-Appellant, v. UNITED STATES OF AMERICA, Defendant-Appellee.

The district court dismissed this suit alleging negligence finding the defendants were engaged in emergency preparedness activities and were immune under the Louisiana Homeland Security and Emergency Assistance and Disaster Act. Although the immunity statute does not apply to general levee construction, he district court did not clearly err in finding that the national guard was engaged in debris removal around the time and place of the plaintiff's accident in response to the emergency created by Hurricane Katrina. The statute does not contemplate a particular time limit to immunity. The judgment of dismissal is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-30824, 05-12-2014

Practice Areas: Torts

SUPREME COURT OF TEXAS

WASTE MANAGEMENT OF TEXAS, INC., PETITIONER, v. TEXAS DISPOSAL SYSTEMS LANDFILL, INC., RESPONDENT

This suit concerns an allegation of libel made by one corporation against another. A for-profit corporation may suffer reputation damages. Such damages are non-economic in nature. While the evidence in this case is sufficient to support the award of remediation costs, the evidence is not sufficient to support the award of reputation damages. The respondent is entitled to exemplary damages, but the amount must be recalculated. The court of appeals' judgment is affirmed in part, reversed in part, and remanded. Texas Supreme Court, No. 12-0522, 05-09-2014

Practice Areas: Torts

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. ADAN GUTIERREZ-MENDEZ, also known as Adan Gutierrez, Defendant-Appellant.

The appellant was found guilty of conspiring to harbor illegal aliens and harboring illegal aliens for commercial advantage or private financial gain. During trial, an officer testified concerning a past traffic stop involving the appellant. He testified that the car smelled of human sweat, and that the odor was consistent with human smuggling. Admission of the testimony under Federal Rule of Evidence 404(b) was erroneous but harmless -- the evidence was weak and there were multiple limiting instructions. 5th U.S. Circuit Court of Appeals, No. 12-40709, 05-12-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

SARAH DOE, on behalf of herself and all others similarly situated; KIMBERLY DOE, on behalf of herself and all others similarly situated; RAQUEL DOE, on behalf of herself and all others similarly situated; ANNA ROE, on behalf of herself and all others similarly situated; GEORGINA ROE, on behalf of herself and all others similarly situated; EMILY ROE, on behalf of herself and [...] v. GEORGE ROBERTSON, ICE Contracting Officer's Technical Representative (COTR); JOSE ROSADO, ICE COTR, Defendants - Appellants

The appellants, federal officials, appeal the denial of their motion to dismiss the plaintiffs' claims of alleged 5th amendment violations stemming from sexual assaults that occurred while the plaintiffs were being transported from an immigration detention center. Plaintiffs properly alleged that the officials had actual knowledge both of the violations of a service agreement provision and of that provision's assault-preventing objective. Even presuming the truth of their factual allegations, the plaintiffs' claim is not plausible because no clearly established law provides that violations of contractual terms that aim to prevent sexual assault are facts from which the inference could be drawn that a substantial risk of serious harm exists; no clearly established law demonstrates that the contractual violations alleged are sufficiently proximate to a substantial risk of serious harm. The complaint does not allege that any concrete facts betrayed a heightened risk of sexual assault during the transports. The officials are entitied to qualified immunity and the district court's denial is reversed and remanded with instructions to dismiss. 5th U.S. Circuit Court of Appeals, No. 13-50459, 05-06-2014

Practice Areas: Civil Rights

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

LSREF2 BARON, L.L.C., Plaintiff-Appellee v. KYLE D. TAUCH, Defendant-Appellant

Kyle D. Tauch executed a Limited Guaranty Agreement with former party Regions Bank (its rights later acquired by LSREF2 Baron) as security for a loan agreement between Regions Bank and First KT Lending, L.L.C. First KT defaulted on the loan, and Regions sued Tauch for the total amount due under the guaranty. Tauch made general denials but raised no affirmative defenses. Regions filed a motion for summary judgment; in response, Tauch claimed that First KT had made payments that reduced the amount Tauch owed. The district court granted the motion for summary judgment, finding that the payment claim was an affirmative defense that Tauch failed to plead in his answer and thus waived. Tauch's claim that First KT made payments that reduced the amount Tauch owed under the Guaranty is fairly classified as an affirmative defense under Louisiana law. The district court properly concluded that Tauch failed to raise its claim in a pragmatically sufficient time. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 11-30846, 05-07-2014

Practice Areas: Banking and Financial Institutions

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JESSIE HOFFMAN, Petitioner - Appellant v. BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY, Respondent - Appellee

The district court denied the appellant's petition for federal habeas relief. 28 U.S.C. §2254(e)(1) pertains only to a state court's determinations of particular factual issues, while §2254(d)(2) pertains to the state court's decision as a whole. To succeed in showing that the state court's determination of facts was unreasonable, the appellant must do more than simply show the erroneous nature of one individual fact-finding. The district court did not err in rejecting the appellant's Strickland, Brady, and Batson claims. The district court's denial is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-70022, 05-12-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In re: ROBERT JAMES CAMPBELL, Movant

The petitioner filed an Atkins claim of ineligibility for the death penalty 10 years after the Atkins decision, but equitable tolling may apply because of the allegation that the state opposed the petitioner's claims even though the state had evidence that the petitioner had an IQ score of 68. Because the petitioner has made a prima facie showing for authorization to file a successive habeas petition, his motion for authorization is granted. The evidence supporting his Atkins claim, which includes multiple intelligence tests administered during various periods of the petitioner's life and consistently suggesting intellectual disability, is strong. The motion to stay execution is granted. 5th U.S. Circuit Court of Appeals, No. 14-20293, 05-13-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

EXXON MOBIL CORPORATION, Plaintiff-Appellant v. CLARENCE HILL; TIMOTHY J. FALCON; JEREMIAH A. SPRAGUE; FRANK M. BUCK, JR., Defendants-Appellees.

The appellant challenges the denial of its motion seeking to compel the return or destruction of a memo it inadvertantly produced. The district court found that the memo, which revealed data regarding the air release of naturally occuring radioactive material during cleaning of equipment, was primarily business rather than legal advice. Context is key. The document was prepared during contract negotiations and each side was assisted by legal counsel. The record is devoid of any indication that the appellant's attorney was providing business advice divorced from its legal implications. The district court's judgment of dismissal is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 13-30830, 05-06-2014

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MARUCCI SPORTS, L.L.C., Plaintiff-Appellant, v. NATIONAL COLLEGIATE ATHLETIC ASSOCIATION; THE NATIONAL FEDERATION OF STATE HIGH SCHOOL ASSOCIATIONS, Defendants-Appellees.

The plaintiff-appellant, a baseball-bat manufacturer, appeals the dismissal of its Sherman Act claim and its motion to amend. The appellant's allegations do not make it plausible that the National Collegiate Athletic Association and National Federation of State High School Associations adopted a conscious commitment to a common scheme designed to achieve an unlawful objective. The standard applied to bats is best described as a rule defining the conditions of the contest, and the standard is presumed to be a justifiable means of fostering competition. A restraint should not be deemed unlawful, even if it eliminates a competitor from the market, so long as sufficient competitors remain to ensure that competitive prices, quality, and service persist. The district court's actions are affirmed. 5th U.S. Circuit Court of Appeals, No. 13-30568, 05-06-2014

Practice Areas: Commercial Law

COURT OF APPEALS OF TEXAS FIRST DISTRICT HOUSTON

JORGE RUBIO MENDOZA, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges the imposition of $590 in court costs against him in the written judgments for each of his convictions. The appellant does not challenge a specific cost, nor does he challenge the basis for assessing a specific cost. A printout, included in the supplemental record on appeal, consisting of a table which listed numerous fees and the "amount assessed" that bears the seal and signature of the district court, accompanied by a signed certification, satisfies the requirements of Texas Code of Criminal Procedure chapter 103. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-11-00940-CR, No. 01-11-00941-CR, 05-06-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

BRUCE B. MCLEOD III, Appellant v. ALFRED GYR, Appellee

This is an appeal from a post-answer default judgment rendered against an attorney on the plaintiff's claims alleging deceptive trade practices and breach of fiduciary duty. The source of the plaintiff's funds or his obligation to repay them do not effect standing as a consumer under the Deceptive Trade Practices Act. It is not necessary that the consumer be the person who actually purchased or leased the services to recover under the DTPA. The appellant's lawyers admitted that the appellant had recieved notice of the trial setting but had disregarded it because the case had been settled; the trial court could conclude that the appellant's failure to appear was a result of intentional conduct or conscious indifference. The trial court's judgment is affirmed in part, and reversed and remanded in part. Dallas Court of Appeals, No. 05-12-01607-CV, 05-05-2014

Practice Areas: Legal Profession , Attorney Malpractice

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

JAMES P. MURPHY, Appellant v. REED WILLIAMS, Appellee

The appellant challenges the trial court's summary judgment finding that the Real Estate Licensing Act precludes his claims of tortious interference. Even if the performance of the statutorily enumerated activities of a broker is, by itself, sufficient to trigger the exception for tortious interference claims among brokers, the summary judgment evidence does not raise a fact issue as to whether the appellee acted as a broker. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-01730-CV, 05-05-2014

Practice Areas: Torts

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA ex rel. JOHN DEE SPICER, Chapter 7 Trustee, Substituted as Qui Tam Plaintiff and Relator per #122 Order, Trustee for the Bankruptcy Estate of Westbrook Navigator, Plaintiff-Appellant-Appellee, [...] v. CLIFFORD WESTBROOK, Qui Tam Plaintiff and Relator, Plaintiff-Appellant, v. NAVISTAR DEFENSE, L.L.C., formerly known as International Military & Government, L.L.C.; NAVISTAR, INCORPORATED; DEFIANCE METAL PRODUCTS COMPANY; JERRY BELL, Individually, doing business as Bell [...]

The district court dismissed the bankruptcy trustee's complaint and denied a subsequent motion for reconsideration. Only the bankruptcy trustee had standing to assert the False Claims Act claims at issue, because of a failure to disclose the existence of the FCA claims during the bankruptcy proceedings. Though an appellee defense contractor may have gone awry of a federal regulation requiring it to prepare records evidencing all inspections, by accepting a subcontractor's invoices does not demonstrate it made a false statement to the Defense Contract Management Agency for purposes of the FCA. Not every alleged breach of a federal contract is an FCA problem. The district court's actions are affirmed. 5th U.S. Circuit Court of Appeals, No. 12-10858, 05-05-2014

Practice Areas: Bankruptcy

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

IN THE INTEREST OF A.D.

The appellant challenges a conservatorship order concerning her minor daughter. The trial court's finding of no danger when denying the father's first motion for temporary orders did not negate the trial court's decision that the father's affidavit was sufficient to justify a hearing on his petition for permanent modification. The trial court did not abuse its discretion by ordering supervised visitation based on the likelihood that the appellant will continue her alleged false accusations against the father. The trial court's order is affirmed. Houston's 14th Court of Appeals, No. 14-12-00914-CV, 05-06-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

THE UNIVERSITY OF TEXAS HEALTH SCIENCE CENTER AT HOUSTON, Appellant v. TERESA MCQUEEN AND CLARENCE MCQUEEN, JR., Appellees

The appellant challenges the denial of the trial court's denial of its plea to the jurisdiction. To constitute actual notice, there must exist something in the circumstances to provide a subjective signal to the governmental unit within the six-month period that there might be a claim, even if unfounded, at issue. There must be something more than the mere fact of a "bad result," even one that a prudent person or physician would have investigated. The denial of the plea to the jurisdiction is reversed and a judgment of dismissal is rendered. Houston's 14th Court of Appeals, No. 14-13-00605-CV, 05-06-2014

Practice Areas: Health Law

COURT OF APPEALS OF TEXAS FOURTH DISTRICT SAN ANTONIO

Romeo HINOJOSA, Appellant v. The STATE of Texas, Appellee

A petition for rehearing is denied, but this opinion is substituted clarifying the factual assertions and reasonable inferences that may be derived. San Antonio Court of Appeals, No. 04-12-00854-CR, 05-07-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

IN THE MATTER OF THE MARRIAGE OF VALERIE DELAINE O'BRIEN AND RICHARD ELDON O'BRIEN

The appellant contests the division of property contained in the final decree of divorce dissolving her marriage to the appellee. Because the appellant failed to present any evidence at trial regarding characterization of "Valerie's Music," a music instruction business, she did not overcome her burden of rebutting the community-property presumption. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00283-CV, 05-06-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS SEVENTH DISTRICT AMARILLO

DANIEL UBALLE, APPELLANT v. THE STATE OF TEXAS, APPELLEE

The appellant challenges his conviction of alleged possession with intent to deliver a controlled substance. There was an issue of fact of whether an inventory search was conducted merely to look for contraband, thereby triggering the application of Texas Code of Criminal Procedure article 38.23. Given that the legitimacy of the arrest is not questioned, and the need to impound and remove the vehicle from a public roadway, and the existence of a written policy regarding the taking of an inventory, the error was harmless. The trial court's judgment is affirmed. Amarillo Court of Appeals, No. 07-13-00127-CR, 05-06-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS SEVENTH DISTRICT AMARILLO

STEVEN L. DRYZER, APPELLANT v. CHARLES BUNDREN AND KAREN BUNDREN, APPELLEES

A landlord appeals judgment against him in the appellee's suit challenging his retention of a security deposit. The landlord's argument against a presumption instruction in the charge is preserved because the trial court's decision to leave the instruction in the charge establishes that the landlord's complaint was implicitly overruled. The erroneous inclusion of the bad-faith instruction was reversible error; it was undisputed that the landlord had timely satisfied the written description and itemization requirement. The trial court's judgment is reversed and remanded. Amarillo Court of Appeals, No. 07-12-00167-CV, 05-06-2014

COURT OF APPEALS OF TEXAS THIRD DISTRICT AUSTIN

Lee Hoffpauir, Inc., Appellant v. Kenneth Kretz and Elayne Kretz, Appellees

The appellant challenges an order denying its motion for new trial challenging a no-answer default judgment in favor of appellees. The current Texas Rules of Appellate Procedure have not abrogated the Wilson holding that a defendant may raise a defective-service complaint for the first time on appeal, and certainly not where, as here, the plaintiff failed to serve the defendant altogether. The district court's judgment is reversed and remanded. Austin Court of Appeals, No. 03-13-00597-CV, 05-06-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS SIXTH DISTRICT TEXARKANA

PARAGON INDUSTRIAL APPLICATIONS, INC., AND RLI INSURANCE COMPANY, Appellants v. STAN EXCAVATING, LLC, Appellee

The appellant challenges the denial of its motion to compel arbitration. Even though one of the parties may be operating under a good-faith belief that the person with whom they are dealing is the agent of another, that fact alone is not enough to bind the purported principal. Ratification of an agreement by a party takes place only after that party (upon learning all of the material facts) confirms or adopts an earlier act that did not then legally bind it and that it could have repudiated. The trial court's order is affirmed. Texarkana Court of Appeals, No. 06-14-00001-CV, 05-06-2014

Practice Areas: Contracts

COURT OF CRIMINAL APPEALS OF TEXAS

EX PARTE DONALD RAY CHANCE, Applicant

In this application for a writ of habeas corpus, the applicant challenges his conviction of alleged online solicitation of a minor. Because this court has held held unconstitutional the online solicitation of a minor statute for which the applicant was convicted, habeas relief is granted. Court of Criminal Appeals, No. WR-81,136-01, 05-07-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

VICTOR MANUEL ACOSTA, Appellant v. THE STATE OF TEXAS

The court of appeals affirmed the appellant's conviction for alleged money laundering, relying in part on a drug-dog alert to the cash. The sheer amount of cash found -- here a half-million dollars -- is highly probative circumstantial evidence of a link to illegal drug activity. Packaging, especially that designed to fool the nose of a drug dog, allows the inference of a nexus between money and drug activity. The court of appeals' judgment is affirmed. Court of Criminal Appeals, No. PD-1211-13, 05-07-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS EIGHTH DISTRICT EL PASO

LORENA QUIROZ and GARY S. VERNIER, Appellants, v. RUMMIE LEE GRAY, II, Appellee.

Lorena Quiroz and Gary S. Vernier appeal the trial court's judgment establishing that Rummie Lee Gray, II, is the biological father of R.L.G., a child born to Quiroz while she was married to Vernier. Vernier did not adduce evidence establishing he had a legal interest in R.L.G. after genetic testing rebuttably identified Gray as R.L.G's father and mandated that Gray be adjudicated R.L.G.'s father. A presumed father is not a necessary party to a proceeding to adjudicate parentage. Appellants are equitably estopped from relying on limitations to deny that Gray is R.L.G.'s father. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00163-CV, 04-25-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS ELEVENTH DISTRICT EASTLAND

EAGLE OIL & GAS CO., Appellant v. TRO-X, L.P., Appellee AND TRO-X, L.P., Cross-Appellant v. EAGLE OIL & GAS PARTNERS, LLC, Cross-Appellee

The movant requests that the court of appeals modify its judgment to reflect that TRO-X, the movant, is entitled to receive record title to TRO-X's beneficial interests held in trust by Eagle Oil & Gas Co. or, alternatively, that this court remand the cause to the trial court for further proceedings. A judgment must be supported by the pleadings. The motion for rehearing is denied. Eastland Court of Appeals, No. 11-11-00290-CV, 04-24-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS FIRST DISTRICT HOUSTON

SHARON HUSTON, Appellant v. UNITED PARCEL SERVICE, INC., Appellee

The appellant challenges the damages awarded to her. Assuming, without deciding, that the trial court erroneously limited the evidence of the appellant's past medical expenses to the amounts that the medical providers had the right to be paid instead of allowing evidence of the full amount of medical expenses billed to the appellant, in this case the error was harmless. The jury ultimately awarded her less than 25 percent of the amount for which she had presented evidence. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00387-CV, 04-29-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS FIRST DISTRICT HOUSTON

IN RE MARK THOMPSON, SR., Relator

The relator challenges the trial court's jurisdiction in this suit seeking support for the care of a disabled child who has reached adulthood. Texas Family Code chapter 154 provides that a suit for support of a disabled child can be filed at any time, but to obtain an order for the support of that child, the court must find that the child's disability existed, or the cause of the disability was known to exist, prior to the child's 18th birthday. The relator could only be considered a "petitioner or movant" if he filed a counter-petition or a motion to modify matters affecting the parent-child relationship; the relator was "another party" under §155.204(b) and his motion to transfer venue was untimely. The petition for writ of mandamus is denied. Houston's 1st Court of Appeals, No. 01-13-00789-CV, 04-24-2014

Practice Areas: Family Law

COURT OF CRIMINAL APPEALS OF TEXAS

APRIL HOPE WHITSON, Appellant v. THE STATE OF TEXAS

The court of appeals affirmed the trial court's revocation of the appellant's community supervision. The Nesbit calculation that forbids double counting controls in all determinations of community supervision duration. The trial court did not have jurisdiction when the state's third motion to adjudicate was not filed timely. The court of appeals' judgment is reversed and remanded. Court of Criminal Appeals, No. PD-0514-13, 05-07-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

JOHN DEREK SAXON, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges his convictions for alleged murder and alleged arson. The state is allowed to abandon a portion of the indictment by not objecting to the charge's omission of a portion of the indictment although jeopardy will attach if the abandonment took place after the jury was impaneled. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-13-00014-CR, 04-24-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

K.R. THIAGARAJAN, APPELLANT v. SHARMA TADEPALLI, APPELLEE;SHARMA TADEPALLI, APPELLANT v. THE SRI MEENAKSHI TEMPLE SOCIETY, APPELLEE

The trial court found that it lacked jurisdiction over defamation claims involving a dispute over the sale and rental of DVDs at a temple. Subject matter jurisdiction is foreclosed when defamation claims are bound up with ecclesiastical implications. The trial court's dismissal is affirmed. Houston's 14th Court of Appeals, No. 14-13-00132-CV, No. 14-13-00133-CV, 04-30-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

DAVID MCKEAND, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges the trial court's refusal to dismiss the charge against him. An unlawful arrest, in itself, does not justify the dismissal of a prosecution before trial. The appellant cannot use pretrial habeas corpus as a substitute for a motion to suppress and thereafter pursue an interlocutory appeal of the court's pretrial ruling. The trial court's ruling is affirmed. Houston's 14th Court of Appeals, No. 14-13-01119-CR, 04-29-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

WILLIE EUGENE PEARSON, Appellant v. THE STATE OF TEXAS, Appellee

The appellant asserts the trial court failed to timely cumulate the sentences because the judge did not orally order consecutive sentences when sentence was first pronounced. There is no prohibition against entry of an order of cumulation following a recess of the sentencing hearing. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 14-13-00277-CR, 04-29-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

BRANDON LYNN DARKINS, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges his conviction for alleged aggravated assault with a deadly weapon. The record is silent on counsel's motives in failing to object to potential hearsay testimony. Failures to object to potentially inadmissible testimony are not sufficient, in themselves, to constitute deficient performance. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00394-CR, 04-29-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

TANGLEWOOD HOMES ASSOCIATION, INC., Appellant v. STEWART A. FELDMAN, MARLA B. FELDMAN, AND MICHAEL T. KELLY, TRUSTEE, Appellees;STEWART A. FELDMAN, MARLA B. FELDMAN, AND MICHAEL T. KELLY, TRUSTEE, Appellants v. TANGLEWOOD HOMES ASSOCIATION, INC., Appellee

All parties appeal from a judgment awarding homeowners declaratory relief and damages in their suit against a homeowners' assocation. The association denied the homeowners' plan to expand their home by annexing and building on a portion of an adjacent lot. Each liability question included "and/or" language and a single answer blank. A defendant cannot be held accountable for a plaintiff's failure to secure unambiguous liability findings as to each party on which an accurate judgment can be based. The trial court did not clearly abuse its discretion when it allowed the trial amendment adding a claim for declaratory relief. The trial court's declaration that Tilbury I and Tilbury II are separate lots, each containing a single residence that could be modified or rebuilt, is proper and does not violate the Deed Restrictions or Texas Local Government Code §212.016(a)(9)(B). The trial court's judgment is reversed and rendered in part, and affirmed in part. Houston's 14th Court of Appeals, No. 14-11-01088-CV, No. 14-11-01089-CV, 04-30-2014

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

BETTY GETERS, Appellant v. BAYTOWN HOUSING AUTHORITY, Appellee

The appellant in this forcible detainer action contends that the trial court erred because the record does not contain evidence that the housing authority provided her with a notice to vacate that complied with Texas Property Code §24.005. A harm analysis is not required in cases involving §24.005(a). The §24.005(e) requirement of a second or later notice is not dependent on a tenant making a response or electing to utilize the grievance process. The trial court's judgment is reversed and rendered. Houston's 14th Court of Appeals, No. 14-13-00045-CV, 04-30-2014

COURT OF APPEALS OF TEXAS FOURTH DISTRICT SAN ANTONIO

Phillip Wayne GRIFFIS, Appellant v. The STATE of Texas, Appellee

The appellant was indicted for alleged assault on a public servant. The state exceeded Texas Code of Criminal Procedure article 32.01's 180-day deadline. However, if a grand jury has returned an indictment by the time the complaint is brought before the trial court, the court is no longer required to release the defendant from custody. Appellant's counsel was not required to file a futile motion to dismiss. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00237-CR, 04-30-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FOURTH DISTRICT SAN ANTONIO

SSP HOLDINGS LIMITED PARTNERSHIP d/b/a Circle K and Stripes LLC, successor by merger to SSP Partners, a Texas General Partnership, Appellant v. Yolanda LOPEZ and Jesus Lopez, Appellees

This accelerated appeal is from the trial court's order vacating an arbitration panel's final decision. The underlying action is an employment dispute. The parties' arbitration agreement required the appellate arbitrators' decision to "include a brief, written opinion addressing the issues before them." The arbitrator was not required to discuss the merits of a claim it found was barred. Here, the employer was ordered to initiate arbitration proceedings. Therefore, the scope of the arbitration was defined by the demand submitted by the employer, and the arbitration panel did not exceed its authority or engage in misconduct by considering only the employer's defenses. The trial court's order is reversed and remanded with an order to confirm the award. San Antonio Court of Appeals, No. 04-13-00712-CV, 04-30-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

COURT OF APPEALS OF TEXAS SECOND DISTRICT FORT WORTH

THE CITY OF KELLER, APPELLANT v. KIMBERLEE DIANE MEADORS HALL AND A. THOMAS HALL, APPELLEES

A city appeals the denial of its plea to the jurisdiction in this inverse condemnation case. Much of the appellee's property lies in a floodplain. The appellee alleges that the city's actions in raising a roadway exacerbated flooding on the property. Nothing in the city's evidence showed that the city did not know or believe that the reason that water would not rise to about a certain level in the floodway generally was because the property at issue could serve as a detention pond. Whether there is a remedy to the flooding is irrelevant to the appellee's claim for compensation. Notice provisions in city charters are not applicable to constitutional takings claims. The trial court's order is affirmed. Fort Worth Court of Appeals, No. 02-12-00061-CV, 05-01-2014

COURT OF APPEALS OF TEXAS FOURTH DISTRICT SAN ANTONIO

John David SAMARRIPAS, Appellant v. The STATE of Texas, Appellee

The appellant asserts that trial counsel rendered ineffective assistance by eliciting testimony about extraneous offenses, and failing to object to a jury instruction on extraneous offenses. Even if defense counsel's performance was deficient, the appellant failed to establish prejudice in light of the overwhelming evidence of his guilt from three witnesses to the alleged assault. An instruction was given limiting the jury's consideration of the extraneous offenses to assessing the appellant's credibility. Because the appellant did not testify, it is presumed that the jury acted rationally and did not consider the extraneous offense evidence. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-13-00350-CR, 04-30-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS SEVENTH DISTRICT AMARILLO

ANANDA CHERMION HABIB, APPELLANT v. THE STATE OF TEXAS, APPELLEE

The appellant challenges the trial court's decision to adjudicate him guilty of the offenses of stalking and violation of a protective order. Because the appellant did not voice an objection to the trial court's implied ruling denying appellant a closing argument, the appellant failed to preserve that alleged error. When a trial court makes a ruling and there is no opportunity to object, to preserve error the defendant must timely file a motion for new trial. Because there were sound strategic reasons for trial counsel to have waived closing argument, the appellant was not constructively deprived of the effective assistance of counsel. The trial court's judgment is affirmed as modified to delete a duplicate assessment of sheriff's fees. Amarillo Court of Appeals, Nos. 07-13-00090-CR, 07-13-00094-CR, 04-30-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS SECOND DISTRICT FORT WORTH

IN RE BYRON GAYLE BREHMER, RELATOR

The relator contends the county court lacked subject matter jurisdiction to consider his appeal from the justice court's decision divesting him of ownership of 30 horses pursuant to Texas Health & Safety Code §821.023. The deadlines in §§821.022(b) and 821.025(d) are not jurisdictional. The petition for writ of mandamus is denied. Fort Worth Court of Appeals, No. 02-14-00104-CV, 04-24-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS THIRD DISTRICT AUSTIN

Susan Combs, in her official capacity as Texas Comptroller, and Greg Abbott, in his official capacity as Texas Attorney General, Appellants v. Texas Small Tobacco Coalition and Global Tobacco, Inc., Appellees

The state appeals a tax ruling. The appellees ask for an order under Texas Tax Code §112.108 excusing them from paying the disputed taxes during the appeal or to direct the trial court to to consider, on the merits, their motion for a hardship exemption. Texas Tax Code §112.108 does not implicate Texas Rule of Appellate Procedure 24, and appellees did not file a motion that could give the trial court extended power under that rule. A request for an exemption under §112.108 must be heard by the trial court, not the appellate court. The appellee's request is denied. Austin Court of Appeals, No. 03-13-00753-CV, 04-25-2014

Practice Areas: Taxation

COURT OF APPEALS OF TEXAS SIXTH DISTRICT TEXARKANA

IN THE MATTER OF THE MARRIAGE OF LUCAS WOODS AND JESSICA WOODS AND IN THE INTEREST OF L.K.L.W. AND S.B.L.W., CHILDREN

Jessica Woods appeals a default decree of divorce dissolving her marriage to Lucas Woods and determining conservatorship of the parties' children. Jessica relied on Lucas' assurances that their previously agreed-to custody and visitation arrangements, which remained in place until the date of the final hearing, would remain unchanged after the divorce. Jessica did not file an answer to the divorce petition -- a petition that she filled out -- based on the parties' agreement to maintain the status quo. Jessica established a meritorious defense to the possession order based on the best interests of the children. The trial court's judgment concerning conservatorship and child support is reversed and remanded. Texarkana Court of Appeals, No. 06-13-00123-CV, 04-25-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS SIXTH DISTRICT TEXARKANA

SANDRA FRANKLIN, Appellant v. SHONTINIER BENTON-ELAM, Appellee

The appellant argues that the trial court erred in issuing only an injunction and not the protective order she requested. A trial court may deny a family violence protective order, even where there is evidence of a physical confrontation, if the confrontation is allegedly caused by the alleged victim's goading and there is no other prior threat of violence or actual violence. The claim that the court lacked authority to issue the injunction is overruled in light of the appellant's pleadings in which she requested a protective order, which is a type of injunction. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00126-CV, 04-30-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS SEVENTH DISTRICT AMARILLO

W.B.M. MANAGEMENT COMPANY D/B/A VIVIANS NURSING HOME, APPELLANT v. MARY FLORES, APPELLEE

A nursing home appeals the trial court's order overruling its objections to an expert's report and denying its motion to dismiss the suit. The report speaks in conclusory fashion of a "delay in diagnosis," but contains no facts on which one may base a conclusion that there occurred a delay in diagnosing the patient's infection or that any such delay was attributable to a failure of the nursing home to check her vital signs daily. Because the report failed to provide a summary of the causation element, the trial court's order is reversed and remanded. Amarillo Court of Appeals, No. 07-14-00008-CV, 04-25-2014

Practice Areas: Health Law

COURT OF APPEALS OF TEXAS TWELFTH DISTRICT TYLER

ANGELA JEANETTE THOMPSON, APPELLANT v. SHERYL ANN WEAVER, AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF ALAN RAY ADAMS, DECEASED, APPELLEE

The appellant asserts that the trial court erred in granting summary judgment on his affirmative defense of res judicata and by denying his motion for sanctions. The transactional approach controls; claims that were nonsuited by the appellant prior to his successful seeking of a dismissal with prejudice are barred by res judicata. The denial of sanctions was not an abuse of discretion because the trial court could have reasonably found that the appellee's pleadings were warranted by a nonfrivolous argument for the extension or modification of an existing law. The trial court's judgment is reversed and rendered in part and affirmed in part. Tyler Court of Appeals, No. 12-13-00151-CV, 04-30-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS TWELFTH DISTRICT TYLER

IN RE: BUSTER FITZGERALD, RELATOR

The relator challenges the trial court's judgment finding him in contempt for failing to comply with an order compelling discovery. An attorney attended a hearing on the motion to compel and argued on the appellant's behalf. The relator's argument based on lack of notice at the hearing on the motion to compel is waived. The relator's testimony was uncontroverted, but he was the sole witness at the contempt hearing. The relator's implicit argument, that a civil contempt conviction based on violation of a court order outside of the court's presence must be supported by a willful violation, is waived for not being clear and concise. The petition is denied. Tyler Court of Appeals, No. 12-12-00291-CV, 04-30-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS THIRTEENTH DISTRICT CORPUS CHRISTI EDINBURG

IN RE ONEWEST BANK, FSB

The relator asks that the language "with prejudice" be struck from the trial court's order denying the relator's application for expedited foreclosure. A dismissal following Texas Rule of Civil Procedure 736 may not be "with prejudice." The writ of mandamus is conditionally granted. No. 13-14-00198-CV, 04-29-2014

COURT OF APPEALS OF TEXAS THIRD DISTRICT AUSTIN

City of New Braunfels, Texas, Appellant v. Carowest Land, Ltd., Appellee

A city appeals the denial of its plea to the jurisdiction. One of the claims alleges that the city's taking of fill material constitutes inverse condemnation. The city was merely asserting its colorable contract rights and not its sovereign powers, so no takings claim may be asserted. Each of the appellant's common-law claims for money damages, as well as its claims for any attorney's fees recoverable incident to its breach-of-contract claims, is germane to, connected with, and properly defensive to the city's affirmative monetary claim, such that these claims do not implicate the city's governmental immunity to the extent of seeking a recovery offsetting any by the city. The district court possesses subject matter jurisdiction as to those claims. The district court has subject-matter jurisdiction to adjudicate the appellant's breach-of-contract claims, including its related claims for attorney's fees, to the extent of the recoveries permitted by Texas Local Government Code chapter 271 subchapter I. The district court's order is reversed and rendered in a part and affirmed in part. Austin Court of Appeals, No. 03-11-00699-CV, 04-30-2014

COURT OF CRIMINAL APPEALS OF TEXAS

TRACY BLAINE FRANCIS, Appellant v. THE STATE OF TEXAS

The court of appeals held that the trial court did not abuse its discretion in concluding that the prosecutor's violation of a discovery order was not willful and that exclusion of the evidence -- a machete -- was, therefore, unnecessary. The trial court was not obliged to draw a conclusion of willfulness. That the prosecutor should have been aware that her exclusive possession of the machete prevented the appellant from inspecting it, as the discovery order required, does not necessarily mean that she was aware of that fact. Although proof of a consistent pattern of failure to comply with a discovery order is another relevant circumstance to take into account in gauging the willfulness, vel non, of the prosecutor's conduct, the prosecutor gave plausible explanations here. There was no due process violation because the appellant failed to show prejudice at pre-trial or a substantial impairment of his defense at trial. The court of appeals judgment is affirmed. Court of Criminal Appeals, No. PD-0519-13, 04-30-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

CAIN BRUTON, Appellant v. THE STATE OF TEXAS

The trial court admitted three exhibits that purport to be documentary evidence of prior convictions of a Peter Bruton from the United Kingdom. The court of appeals held that two of the documents were not properly authenticated. The documents were not properly authenticated because neither was accompanied by a final certification from a diplomatic or consular official specified in Texas Rule of Evidence 902(3) and because good cause for failing to obtain a final certification was lacking. The court of appeals judgment is affirmed. Court of Criminal Appeals, No. PD-1265-13, 04-30-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

WILKIE SCHELL COLYER, JR., Appellant v. THE STATE OF TEXAS

The trial court denied the appellant's motion for new trial that alleged juror misconduct; the court of appeals held that the trial court abused its discretion. The juror testified that his verdict was not a fair expression of his opinion due to an array of "outside influences," including the late time of day, the distance to the parking lot, the approaching inclement weather, and the amount of time it was taking to respond to the jury's notes.Personal pressures-such as a fear of inclement weather or concern about a child's illness-are not "outside influences" under Texas Rule of Evidence 606(b). Juror testimony about these issues is not admissible. The court of appeals' judgment is reversed. Court of Criminal Appeals, No. PD-0305-13, 04-30-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS TWELFTH DISTRICT TYLER

VICTORIA RAE VANDERPOOL, JANIS CLAIRE STARK, AND RAY TODD VANDERPOOL, APPELLANTS v. BARBARA SHARP VANDERPOOL, APPELLEE

This case involves a dispute over the disposition of property in which Ray Leland Vanderpool owned a life estate and Appellants owned the remainder interest. The property consists of a family farm and Krugerrands. An inventory of the estate was not sufficient documentary evidence to establish constructive notice on the claim of conversion of proceeds from a promissory note. Concerning the cause of action for conversion of the Krugerrands, the appellants failed to show a fiduciary relationship with the appellee and failed to exercise due diligence in identifying what life estate property existed at the time of Ray's death, therefore, the discovery rule and the doctrine of fraudulent concealment do not apply. The trial court's judgment is reversed and remanded. Tyler Court of Appeals, No. 12-12-00358-CV, 04-23-2014

Practice Areas: Torts

SUPREME COURT OF TEXAS

GARY SAWYER, DOUG KEMPF, PETER BARNABA, SR., GEOFF RORREV, TIM GREGORY, ET AL., APPELLANTS, v. E. I. DU PONT DE NEMOURS AND COMPANY, APPELLEE

Two questions were certified by the 5th U.S. Circuit Court of Appeals asking whether, under Texas law, at-will employees and employees subject to a collective bargaining agreement can sue their corporate employer for fraudulently inducing them to move to a wholly owned subsidiary. An at-will employee cannot bring an action for fraud that is dependent on continued employment. The CBA modified the employees' at-will employment relationship. Their agreement forecloses an action for fraud; the complaint is essentially one for constructive discharge that is limited to the remedies in the CBA. Texas Supreme Court, No. 12-0626, 04-25-2014

Practice Areas: Labor and Employment , Labor Law

SUPREME COURT OF TEXAS

IN RE HEALTH CARE UNLIMITED, INC.

The court of appeals denied a writ of mandamus asking that the trial court be directed to vacate its order for new trial. The order was based, apparently, on communications between a juror and an employee of one of the defendants. The employee was at the trial and conferred with counsel. The communications were unrelated to the trial and began before the trial. Protecting the trial process in the jury misconduct context requires a finding of misconduct, materiality, and probable injury, not merely that there was an appearance of impropriety from which harm could be presumed. The petition for writ of mandamus is conditionally granted. Texas Supreme Court, No. 12-0410, 04-25-2014

Practice Areas: Appellate Law - Civil

COURT OF CRIMINAL APPEALS OF TEXAS

DERRICK LYNN LEWIS, Appellant and ERRON KEITH NOLLEY, Appellant v. THE STATE OF TEXAS

The U.S. Supreme Court held in Miller that the U.S. Constitution forbids sentencing schemes for juveniles in which life imprisonment without the possibility of parole is mandatory rather than based upon an individualized sentencing assessment. Appellants argue that their sentences, which the appellate courts reformed to life imprisonment, are unconstitutional because they were not afforded individualized hearings at which to present mitigating evidence. The appellants are not entitled to punishment hearings. The appellate court judgments are affirmed. Court of Criminal Appeals, No. PD-0833-13 and PD-0999-13, 04-30-2014

Practice Areas: Criminal Law

SUPREME COURT OF TEXAS

IN RE WHATABURGER RESTAURANTS LP

This petition for writ of mandamus concerns the trial court's grant of a new trial based on its finding that a juror did not complete her juror questionnaire correctly. The record contains no competent evidence that the juror's nondisclosure of her role as a defendant in other suits resulted in probable injury, and the only competent evidence supports that it did not result in probable injury; other jurors had similar experiences and the relator's attorney did not question or strike those jurors. The writ of mandamus is conditionally granted. Texas Supreme Court, No. 11-0037, 04-25-2014

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In the Matter of: ASARCO, L.L.C., Debtor;ASARCO, L.L.C., Appellant v. JORDAN HYDEN WOMBLE CULBRETH & HOLZER, P.C., Appellee;ASARCO, L.L.C., Appellant v. BAKER BOTTS, L. L. P., Appellee

The bankruptcy court authorized payment of premiums to debtor's counsels for their successful fraudulent transfer litigation. The bankruptcy court also awarded attorneys' fees to the firms for defending their fee applications in court. Bankruptcy courts may award a fee enhancement in rare and exceptional circumstances; in affirming the bankruptcy court, the district court characterized the results as "once in a lifetime." 11 U.S.C. §330(a) does not authorize compensation for the costs counsel or professionals bear to defend their fee applications. The award of fees for litigating the firms' fee applications is reversed, and the awards of fee enhancements are affirmed. 5th U.S. Circuit Court of Appeals, No. 12-40997 Consolidated With Case Nos. 12-40998 & 13-40409, 04-30-2014

Practice Areas: Bankruptcy

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

SANDRA KAY GILBERT, Plaintiff-Appellant, v. PATRICK R. DONAHOE, Postmaster General, United States Postal Service, Defendant-Appellee.

The appellant challenges the dismissal of her suit for lack of subject matter jurisdiction. While the collective bargaining agreement requires the appellant to pursue her Rehabilitation Act claims through the specified grievance and arbitration procedures, its references to the Family and Medical Leave Act are not sufficiently clear and unmistakable to deprive the district court of subject matter jurisdiction over claims arising under that statute. The appellant does not have standing to seek an injunction under the FMLA because she is retired. The district court's judgment is affirmed in part and reversed and remanded in part. 5th U.S. Circuit Court of Appeals, No. 13-40328, 04-30-2014

Practice Areas: Labor and Employment

SUPREME COURT OF TEXAS

RIO GRANDE VALLEY VEIN CLINIC, P.A., D/B/A RGV VEIN LASER & AESTHETIC CLINIC, PETITIONER, v. YVETTE GUERRERO, RESPONDENT

The plaintiff alleges she suffered burns and scarring while receiving laser hair removal treatments. The trial court denied a motion to dismiss and the court of appeals affirmed. A dissent in the court of appeals would have concluded that the claim is a health care liability claim, and that disagreement on a material point of law confers jurisdiction over this interlocutory appeal. The rebuttable presumption that this is a health care liability claim applies because the plaintiff is suing a health care provider and physician over facts implicating her care or treatment. Because expert health care testimony is necessary to prove or refute her claim, the plaintiff has not rebutted the presumption. The court of appeals' judgment is reversed and remanded. Texas Supreme Court, No. 12-0843, 04-25-2014

Practice Areas: Health Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CHARLES CANNON; BRIAN KERSTETTER; MICHAEL MCLAUGHLIN, Defendants-Appellants.

A jury convicted the defendants of an alleged hate crime. Under the 13th Amendment, Congress may define and regulate the "badges" and "incidents" of slavery so long as their definition is rational. The Shephard-Byrd Act survives rational basis review. There is sufficient evidence in the record from which a reasonable jury could conclude that defendants caused bodily injury to the victim because of his race. The convictions are affirmed. 5th U.S. Circuit Court of Appeals, No. 12-20514, 04-24-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JONIBACH MANAGEMENT TRUST, PlaintiffAppellee, v. WARTBURG ENTERPRISES, INC., DefendantAppellant.

The appellant challenges summary judgment against it on counterclaims alleging breach of contract. The refusal of sale claim and the customer relationships claim are rooted in a later oral modification relating to exclusive distribution. There was no written evidence of this modification to the original contract. The modification does not fall into any of the exceptions to the statute of frauds. The retailer limitation claim is based on the initial contract; the appellant's claim alleging that the parties did not agree that it must supply particular retailers is clearly rooted in the same contract as the appellee's earlier claim that they did agree to this limitation. The district court erred in granting summary judgment to the appellee as to this claim on statute of frauds grounds. The district court's judgment is affirmed in part and reversed in part. 5th U.S. Circuit Court of Appeals, No. 13-20308, 04-24-2014

Practice Areas: Contracts

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ROSSY BELLORIN SALAZAR, Plaintiff-Appellee v. JOSE ZAGHLOUL MAIMON, Defendant-Appellant

The district court granted, in part, the plaintiff's motion for attorneys' fees and necessary expenses pursuant to the fee-shifting provision of the International Child Abduction Remedies Act. The district court correctly interpreted "[a]ny court ordering the return of a child pursuant to an action brought under §11603" to mean "any court ordering the return of a child pursuant to an action brought under the Convention." Because the plaintiff was the prevailing party -- the legal relationship between the parties was materially altered, the settlement order effectively accomplished the Convention's objective, and the court order was a judicial act conferring a direct benefit on the plaintiff -- the settlement order was sufficient to create a duty on the district court to order an award of necessary fees and expenses under 42 USC §11607(b)(3). The district court's grant of necessary expenses is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-20234, 04-29-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS THIRD DISTRICT AUSTIN

City of Austin, Appellant [...] v. Raymond E. Chandler, Daniel J. Amador, David Becker, John Beese, Nathan Blane Brown, Michael Carter, Anastacio Cruz, Eddie de la Garza, Jose L. Delgado, Leland Scott DePue, Carlos S. Dominguez, Kenneth J. Ferro, David Gannon, Abel Garza, Vincent Giles, Jr., Gregory T. Graboskie, M. Michael Hart, Bonnie Harvey, Cecil Jones, Anthony Kubesch, Christopher Megliorino, Randy Mulroy, Lori Peterson, Steven K. Reid, Roberto Rodriguez, Jorge Rojas, Richard Sanders, Harry [...]

This is a substitute opinion. The appellees-a group of public safety officers over the age of 40 who worked for appellant the city of Austin's now defunct Public Safety Emergency Management Department -- sued the city for age-based employment discrimination. In disparate-impact cases, after identifying a specific employment practice, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the complained of disparity. The city failed to explain a logical connection between reducing the appellees' years of service -- thereby adversely affecting their opportunities for promotion and raises -- and ensuring that all PSEM employees maintained their current salaries. The trial court's judgment is affirmed. Austin Court of Appeals, No. 03-12-00057-CV, 04-18-2014

Practice Areas: Labor and Employment

COURT OF APPEALS OF TEXAS EIGHTH DISTRICT EL PASO

IN RE: VICTORY ENERGY CORPORATION, SMARTGAS, LLC, AND HCP INVESTMENTS, Relators.

The trial court refused to order the real-party-in-interest to return funds to the court registry. Because the trial court retained equitable powers over the funds disbursed from the court registry, the trial court did not lack subject matter jurisdiction to consider and rule on the relators' motion to return the funds after the funds were disbursed from the court's registry. The trial court was not obligated to order the return of the disbursed funds pending an appeal because the trial court is able to enter a judgment awarding the funds to relators should they prevail on appeal. The petition for writ of mandamus is denied. El Paso Court of Appeals, No. 08-13-00068-CV, 04-23-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS EIGHTH DISTRICT EL PASO

JESUS RUBEN MOLINA, Appellant, v. ELIAS ALVARADO, Appellee.

The appellant contends that suit against him is barred because the plaintiff first sued his employer, a city. Texas Civil Practice and Remedies Code 101.106(a) is correctly read as barring suit against an employee only where that employee is being sued in his official capacity, i.e. only where the employee was actually acting within the scope of his employment. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-13-00157-CV, 04-23-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

DOUGLAS SPICER, Appellant v. TEXAS WORKFORCE COMMISSION AND PLEASANT VALLEY UNITED METHODIST CHURCH, Appellees

The appellant challenges summary judgment affirming the Texas Workforce Commission's decision to deny unemployment benefits. The appellant was employed as a pianist and organist for a church. The exemption of service in the employ of a church from the definition of employment in the Texas Unemployment Compensation Act does not violate the Establishment Clause. assuming the compelling-interest standard applies to the appellant's First Amendment claim, he has failed to establish the exemption in §201.066 of the TUCA violates his right to freely exercise his religion. Based on rational-basis scrutiny, §201.066 of the TUCA does not violate the Equal Protection Clause. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-13-00465-CV, 04-22-2014

Practice Areas: Constitutional Law

COURT OF APPEALS OF TEXAS FIRST DISTRICT HOUSTON

JUAN CARLOS DIAZ AND ANA C. FUDGE, Appellants v. ROSE MARIE ELKIN, Appellee

A brother and sister appeal the dismissal of their claim that their niece breached her fiduciary duties as co-executrix of her grandmother's estate. As a general rule, Texas courts have no jurisdiction over a representative of an estate who holds that status by virtue of an appointment in another state or nation. The appellants' claims, including a demand for an accounting and an order for the co-executrix to remove herself, inherently seek to affect the administration of the estate. Moreover, the damages sought relate to administration of the estate and particularly either to assets held by the estate or to sums of money that the appellants allege that they have paid on the estate's behalf. The trial court's order of dismissal is affirmed. Houston's 1st Court of Appeals, No. 01-13-00500-CV, 04-22-2014

Practice Areas: Trusts and Estates

COURT OF APPEALS OF TEXAS FIRST DISTRICT HOUSTON

NATHAN G. MIMS, Appellant v. THE STATE OF TEXAS, Appellee

The appellant argues Texas Penal Code §38.04, the evading arrest statute, is unconstitutional because it "legislates two different levels of crime and punishment for the same conduct." Because Senate Bill 496, which includes the provisions about which the appellant complains, was not the law at the time the appellant was arrested, his constitutional challenge to §38.04 fails. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00170-CR, NO. 01-13-00171-CR, 04-24-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FIRST DISTRICT HOUSTON

NATIONAL CASUALTY COMPANY, Appellant v. CHARLIE HINDS PAINT & BODY, INC. D/B/A CHARLIE HINDS PAINT & BODY, Appellee

The appellant challenges a judgment awarding damages to the appellee for the storage of a wrecked tow truck, plus attorney's fees. There is no evidence in the record to support a finding that the vehicle was ever stored or parked at the appellee's vehicle storage facility without its owner's consent. Chapter 2303 of the Occupations Code thus never applied to the vehicle. The trial court's judgment is reversed and rendered. Houston's 1st Court of Appeals, No. 01-13-00130-CV, 04-22-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS FIRST DISTRICT HOUSTON

THE JACK M. SANDERS FAMILY LIMITED PARTNERSHIP, Appellant v. ROGER T. FRIDHOLM REVOCABLE, LIVING TRUST, IPG SERVICES CORP., ELIZABETH SANDERS MOORE, AND JESS R. MOORE, Appellees

The appellant challenges the trial court's order denying its motion to discharge and release a charging order entered in favor of appellees. The trial court's order at issue here does not fully determine the substantive property rights of the parties involved, nor does it inform the partnership with sufficient clarity how it can comply with the order. The order does not discharge all outstanding claims and parties. The order was not a final judgment or appealable interlocutory order. The appeal is dismissed. Houston's 1st Court of Appeals, No. 01-13-00576-CV, 04-22-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS FIRST DISTRICT HOUSTON

NIGEL MOHAMMED HAMPTON, Appellant v. THE STATE OF TEXAS, Appellee

The appellant contends the trial court erred by improperly admonishing him as to the availability of probation. The appellant agreed to enter a guilty plea without an agreed recommendation from the state on punishment. The trial court has no duty to inform a defendant of the likelihood he will actually receive community supervision before the judge receives the presentence investigation report. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00186-CR, 04-24-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

YUVAL LAPINER, Appellant v. JACKOB MAIMON, MAX PRIDGEON, MICHELLE R. CINNAMON-FLORES, HAIM TSUFF, GOODRICH GLOBAL LTD., ISRAMCO, INC., JEFFREY GOLDSTEIN, AND THEODORE STEINBERG, Appellees

The appellant recieved notice of a settlement of a shareholder derivative suit and filed an objection and a petition in intervention. The appellant challenges the trial court's approval of the settlement and denial of his motion for fees and expenses. Without regard to whether the appellant must intervene in order to have standing to appeal, the plain language of Texas Rule of Appellate Procedure 26.1 deprives the appellant -- a nonparty -- of the right to extend the time for filing a notice of appeal. Even if the doctrine of virtual representation may be used to extend the Texas appellate timetable, the appellant does not qualify as a deemed party under the doctrine; the appellant is not bound by the underlying judgment, and there is no identity of interest between the appellant and the plaintiffs. The appeal is dismissed. Houston's 14th Court of Appeals, No. 14-12-00158-CV, 04-22-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

SELMAN HALILI, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges the denial of his motion to suppress. The appellant lacks standing to complain about the officer's investigation conducted outside of his jurisdiction. Had the officer acted in a purely private capacity, he could have observed the information reported in his probable cause affidavit and provided it to a magistrate; he was essentially a business invitee at the time he allegedly observed gambling devices in a game room. Unless someone's privacy or property interests are illegally infringed upon in the obtainment of evidence, the core rationale for the Texas exclusionary rule is not met and its use is unwarranted. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00021-CR, 04-24-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

WILLIAM DAVID KELLEY, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges his conviction for the felony offense of alleged failure to comply with statutory sex offender registration requirements. Given that appellant was prosecuted for a time-linked sexual offender registration offense falling with a particular 90-day period and a particular time span within such 90-day period, the jury heard evidence of appellant's conduct beyond that period, and the trial court instructed the jury that it could convict appellant based on any conduct falling within the three-year time period prior to indictment, the charge presented the jury with a much broader chronological perimeter than is permitted by law. This erroneous "on or about" instruction was harmless. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-01058-CR, 04-24-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FIRST DISTRICT HOUSTON

SIMON RAMIREZ, Appellant v. COLONIAL FREIGHT WAREHOUSE CO. INC., Appellee

The appellant challenges a no-evidence summary judgment granted in his personal injury suit. The appellant's nonspecific reference to his deposition testimony was adequate, given the brevity of the deposition and lack of complexity of issues raised and addressed in the deposition. When a party attaches as summary judgment evidence a complete deposition transcript that is brief and provides a description of the facts sufficient to connect the facts to the challenged elements of the cause, the party has met its burden to point the trial court to evidence raising a fact issue. The trial court's judgment is reversed and remanded. Houston's 1st Court of Appeals, No. 01-13-00617-CV, 04-22-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

ORVILLE PAUL DUNAGAN, Appellant v. BRYAN COLEMAN, Appellee

The appellant argues that the duty of ordinary care does not apply to conduct committed while participating in a sports activity and there is no evidence to support a finding of recklessness. The inherent risks of a sport do not change depending upon whether the conduct takes place in a practice or in an actual competition. Because the conduct was committed as part of his participation in a sports activity and the injury was the result of an inherent risk of that activity, the appellant could not be held liable for ordinary negligence. Evidence including that the appellant had to "find the plate" and that the appellant threw an overhead fastball, instead of the pitch usually thrown in the league, is not sufficient evidence of reckless conduct. The trial court's judgment is reversed and rendered that the appellee take nothing. Dallas Court of Appeals, No. 05-12-00171-CV, 04-07-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS EIGHTH DISTRICT EL PASO

MARK DAVIS, Appellant, v. NORMA CHAPARRO, Appellee.

The appellant challenges the trial court's finding of breach of contract in this case involving an attorney's hiring of a translator. When an attorney contracts third-party services on behalf of a client without specifying his agency status, the attorney may assume special liability for payment of the services. Absent an express disclosure of the attorney's agency status at the time the contract with the translator was formed, the evidence supports an implied finding that the appellant expressly or impliedly assumed special liability and is responsible for payment of the contract. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00067-CV, 04-11-2014

Practice Areas: Contracts

COURT OF APPEALS OF TEXAS SIXTH DISTRICT TEXARKANA

RICHARD ANDREWS, Appellant v. THE STATE OF TEXAS, Appellee

The indictment in this case alleged that the appellant injured "William Boc" by shooting "William Box." The correct name is in the indictment once, and the name "Box" is found throughout the pleadings, while the name "Boc" does not appear anywhere else. There is significant evidence that the error was merely a typographical mistake. There is no material variance between the indictment and the evidence. The trial court erred by refusing to submit an instruction on idem sonans, but no actual harm was shown. The trial court's judgment is affirmed. Texarkana Court of Appeals, 06-13-00123-CR, 04-23-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS SIXTH DISTRICT TEXARKANA

THE STATE OF TEXAS, Appellant v. JORGE LOUIS VERDE, Appellee

The trial court ordered alleged contraband suppressed based on its findings that the supporting affidavit deliberately misled the warrant-issuing judge by omitting key information. The affidavit alleged that the appellee was in possession of a stolen trailer. An omission, here the omission of the date of purchase of the trailer, may qualify as a Franks violation. Adjusted for its errors, the affidavit would not support probable cause. The trial court's ruling is affirmed. Texarkana Court of Appeals, No. 06-13-00115-CR, 04-23-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

COLLECTIVE ASSET PARTNERS LLC, Appellant v. MICHAEL KEN SCHAUMBURG AND SCHAUMBURG ARCHITECTS, P.C., Appellees

The trial court granted summary judgment in favor of the defendant in this suit alleging, inter alia, misrepresentation concerning the sale of a property. The defendant is an architect who had a business relationship with the appellants. There were two documents setting forth the parties' relationship concerning the property: an Unimproved Property Contract providing meerely that the contract is contingent on the execution of a joint venture to develop or sell the property within five days, and a memorandum of understanding best characterized as a profit-sharing agreement. Neither agreement discusses professional services. The assertion that the defendant owed a duty is without merit. The statement that the property was able to be developed was true, and cannot be the basis of an alleged fraud claim. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-13-00040-CV, 04-11-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

RHONDA MIMS-BROWN, Appellant v. BESSIE R. BROWN, Appellee

This case involves a dispute over funds distributed from a joint tenancy account. Texas Probate Code 440 does not apply. A customer information brochure, together with the account application and account documents describing the account as "JTWROS" were sufficient to confer a right of survivorship. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-01132-CV, 03-31-2014

Practice Areas: Trusts and Estates

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

NATIONAL FIRE INSURANCE COMPANY OF HARTFORD, VALLEY FORGE INSURANCE COMPANY, AND CONTINENTAL CASUALTY COMPANY, Appellants v. CE DESIGN, LTD., AND PALDO SIGN AND DISPLAY COMPANY, Appellees

The trial court granted the appellees' special appearances and dismissed them from the underlying declaratory judgment action. Appellees serve as representatives of a nationwide class consisting of approximately 143,000 class members. That a class member may reside in a state does not subject a class representative of a nationwide class to personal jurisdiction as a defendant in an insurance coverage suit filed by a third party in that state. The trial court's order is affirmed. Dallas Court of Appeals, No. 05-13-00720-CV, 04-18-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

MELVIN WEST, Appellant v. SOUTHERN COUNTY MUTUAL INSURANCE COMPANY, Appellee

The appellant was injured at work. His employer filed an insurance claim under a business auto policy issued by the appellee. As part of a settlement, the employer assigned its insurance claim to the appellant. The phrase "domestic employee not entitled to workers' compensation insurance" is not ambiguous. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-13-00012-CV, 04-10-2014

Practice Areas: Insurance Law

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

WEAVER AND TIDWELL, L.L.P., Appellant v. THE GUARANTEE COMPANY OF NORTH AMERICA USA, Appellee

The appellant challenges a judgment awarding the appellee approximately $2.6 million for losses that the trial court found the appellee sustained as a result of the appellant's alleged negligent misrepresentations in audited financial statements. Although the appellee argued that the discovery rule applied, it did not obtain findings on when it knew or should have known of the facts that gave rise to its cause of action. The trial court's judgment is reversed and rendered, and the the trial court's dismissal of the appellant's counterclaims are affirmed. Dallas Court of Appeals, No. 05-12-00750-CV, 04-08-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

ORYON TECHNOLOGIES, INC. AND ORYON TECHNOLOGIES, LLC, Appellants v. M. RICHARD MARCUS, Appellee

This is an emergency motion asking for a stay on the trial court's unsealing order. Appellants filed a motion to set a supersedeas bond amount but the hearing was scheduled the day after the unsealing order was signed. In many cases under Texas Rule of Civil Procedure 76a, including this case, it would be difficult for the trial court to quantify the monetary value of pre-trial public access to the documents and weigh the monetary value of that access against the appellant's presumptive property right in matters it contends are trade secrets until the judicial process has finally declared the status of the alleged trade secrets by determination on the appeal under rule 76a. The trial court's unsealing order is stayed pending resolution of the appeal. Dallas Court of Appeals, No. 05-14-00446-CV, 04-14-2014

Practice Areas: Intellectual Property

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

GID PORTER, Appellant v. SOUTHWESTERN CHRISTIAN COLLEGE, JACK EVANS, AND HERBERT EVANS, Appellees

The trial court granted summary judgment to the defendants on the plaintiff's claims of slander, conspiracy, and intentional infliction of emotional distress. The no-evidence motion on slander is limited to the issue of damages. General damages are presumed on a defamation per se claim. An inference of malice may be supported by the repetition of a false statement when its truth or falsity was peculiarly within the knowledge of the speaker. The trial court's judgment is affirmed in part, and reversed and remanded in part. Dallas Court of Appeals, No. 05-12-01737-CV, 04-07-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS FIRST DISTRICT HOUSTON

CASA DEL MAR ASSOCIATION, INC., Appellant v. GOSSEN LIVINGSTON ASSOCIATES, INC., Appellee

The trial court dismissed this case against an architecture firm applying the principles of collateral estoppel from arbitration proceedings. The arbitration proceedings involved the same allegations. Strict mutuality is not required; the party asserting collateral estoppel has to establish that the party against whom collateral estoppel is asserted was a party in the prior proceeding. Because the arbitration panel concluded that the appellant could not establish that the architecture firm caused the alleged damages, collateral estoppel bars the claims. The trial court's judgment is affirmed. COURT OF APPEALS OF TEXAS FIRST DISTRICT HOUSTON, NO. 01-13-00556-CV, 04-10-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS FIFTH DISTRICT DALLAS

ASHLEY BRIGHAM PATTEN; ROBERT C. KARLSENG; JACQUES YVES LEBLANC; KARLSENG LAW FIRM, P.C.; PATTEN LAW FIRM, P.C. F/K/A PATTEN & KARLSENG, P.C.; AND LEBLANC & KARLSENG, P.C., F/K/A LEBLANC, PATTEN & KARLSENG, P.C., Appellants v. M. BRETT JOHNSON; GEOFFREY HARPER; FISH & RICHARDSON, P.C.; H. JONATHAN COOKE; ROBERT W. FAULKNER; AND JAMS INC. A/K/A JAMS ADR SERVICES, INC., Appellees

This is an appeal of the trial court's judgment granting appellees' pleas to the jurisdiction and motions to dismiss in a lawsuit filed by appellants following the vacatur of an arbitration award against them. Absent a statutory ground to vacate or modify an arbitration award, a reviewing court lacks jurisdiction to review other complaints about the arbitration. The scope of any arbitral or attorney immunity is not material in determining whether preemption applies. Because appellants' complaints in this case did not present a statutory ground to vacate or modify an arbitration award, the trial court lacked jurisdiction to review those complaints. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-01695-CV, 04-15-2014

Practice Areas: Alternative Dispute Resolution

COURT OF APPEALS OF TEXAS FIRST DISTRICT HOUSTON

THADDEUS AND BONNIE SAMUEL, Appellants v. FEDERAL HOME LOAN MORTGAGE CORPORATION, CITIMORTGAGE, INC., AND MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Appellees

The trial court found that the appellants' claims involving a foreclosure are barred by res judicata and collateral estoppel. Res judicata bars the suit because the appellees are in privity with the mortgage company in the first suit, through successor-in-interest. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, NO. 01-13-00850-CV, 04-17-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

IN RE JEFFREY M. STERN, INDIVIDUALLY AND D/B/A STERN, MILLER & HIGDON, Relator

This is a substitute opinion. Petitioner asks for a writ of mandamus to compel the trial judge to vacate a judgment nunc pro tunc withdrawing the trial court's prior dismissal of the underlying litigation. The debtor's case against relator was pending at the time the Chapter 7 bankruptcy petition was filed. As a consequence, the debtor's claims against relator became property of the bankruptcy estate. Only the trustee had standing with respect to the claims. Because the motion to dismiss was not filed by the trustee, the trial court lacked jurisdiction and retained the authority to vacate. The petition for writ of mandamus is denied. Houston's 14th Court of Appeals, NO. 14-13-00905-CV, 04-17-2014

Practice Areas: Bankruptcy

COURT OF APPEALS OF TEXAS FIRST DISTRICT HOUSTON

COUNTRY COMMUNITY TIMBERLAKE VILLAGE, L.P., CHARLES AND JUDITH CAYLEY, DENNIS AND TIFFANY DILLARD, JIM AND TINA DILLARD, TODD AND SAMANTHA DOWNING, KENNETH AND PENNY EDWARDS, STEWART AND KELLI GUSS, RICK AND DONNA HAWRYLAK, LEONARD AND ROBBIE HIGGINS, ET AL., Appellants v. HMW SPECIAL UTILITY DISTRICT OF HARRIS AND MONTGOMERY COUNTIES, Appellee

A jury awarded various individual homeowners and a developer damages for the reduction in value each allegedly suffered due to the condemnation of a piece of property adjacent to a subdivision. Landowners may not enforce deed restrictions applicable to another's property, absent privity of contract or a demonstration that both parcels are part of a common, general plan or scheme for their development. The developer developed two tracts of land. One such tract, the Small Tract, was never subdivided into lots. The Small Tract was not part of a general plan or scheme of development such as would bring it within the exception to the general rule that requires privity of contract. The trial court's judgment is vacated and the case is dismissed.Houston's 1st District Court of Appeals, NO. 01-12-00825-CV, 04-15-2014

COURT OF APPEALS OF TEXAS FIRST DISTRICT HOUSTON

ALEXANDRA BURNS, Appellant v. MICHAEL DONALD BURNS, Appellee

The appellant challenges the trial court's order denying her petition to terminate the parental rights of her ex-husband and the father of their child, M.A. The father's admission that his absence "endangers [M.A.'s] emotional well-being" is a testimonial admission, not a judicial admission. He considered his decision to be absent to be a lesser harm, and continued to meet his child support obligations. The trial court's order is affirmed. Houston's 1st Court of Appeals, NO. 01-13-00797-CV, 04-10-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS FIRST DISTRICT HOUSTON

NATIONAL PUBLIC FINANCE GUARANTEE CORPORATION AND MBIA INSURANCE CORPORATION, Appellants v. HARRIS COUNTY-HOUSTON SPORTS AUTHORITY AND HARRIS COUNTY SPORTS AND CONVENTION CORPORATION, Appellees

The appellants challenge challenge the trial court's grant, based on sovereign immunity, of pleas to the jurisdiction filed by the Harris County-Houston Sports Authority and the Harris County Sports and Convention Corp. The parties' dispute primarily concerns the Series 2001 bonds that were used to fund the construction of Reliant Stadium. Texas Government Code §1371.059(c) does not apply to the initial execution of the Indenture, Leases, Funding Agreement, or Reimbursement Agreements, because §9 of the underlying act provides that subsection (c) applies only to "proceedings related to authorizing the issuance of obligations or the execution of credit agreements or interest rate management agreements that are adopted on or after" June 15, 2007. Because the 2004 Reimbursement Agreement was entered into before June 15, 2007 by an issuer, the Sports Authority, that had authority to sue or be sued, and it waived immunity, the 2004 Reimbursement Agreement falls under the express terms of §10, and the Sports Authority's immunity is waived. Section 271.152's waiver of immunity does not extend to the appellants' declaratory judgment claims against the Convention Corporation. The judgment as to the Convention Corporation is affirmed, the judgment as to the Sports Authority is reversed and remanded. Houston's 1st Court of Appeals, NO. 01-13-00401-CV, 04-15-2014

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

JOHN M. PERONE, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges his conviction for alleged misdemeanor harassment based on evidence of telephone calls, text messages, and video calls that he sent to his former spouse. If text messages are exchanged between two telephones, they are communications between telephones, and thus are telephone communications under Texas Penal Code §42.07(a)(4). Communications between two telephones using the "Facetime" app are telephone communications. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, NO. 14-12-00969-CR, 04-15-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

TONY WOODY, Appellant v. MADELYN WOODY, Appellee

The appellant challenges the trial court's judgment in this post-divorce proceeding seeking enforcement and modification of their final decree of divorce. The appellant withdrew his consent to the agreement regarding child support prior to rendition of the judgment. If a party revokes its consent to a Rule 11 agreement at any time before judgment is rendered in the case, the agreement can no longer simply be approved by the court; instead, the enforcement mechanism is through a separate breach of contract action. The trial court's judgment is affirmed in part, and reversed and remanded in part. Houston's 14th Court of Appeals, NO. 14-12-00762-CV, 04-17-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

JOHANNES "JOE" ELMGREN AND VALARIE ELMGREN, INDIVIDUALLY AND AS NEXT FRIENDS OF THEIR MINOR CHILDREN, Appellants v. INEOS USA, LLC F/K/A INNOVENE USA, LLC, INEOS POLYMERS, INC., A/K/A INEOS OLEFINS, INEOS OLEFINS & POLYMERS USA, A DIVISION OF INEOS USA, LLC, AND JONATHAN "BUBBA" PAVLOVSKY, Appellees

This is a substitute opinion. Appellants sued following a personal injury at an industrial plant. Texas Civil Practice and Remedies Code chapter 95 defeats a premises-liability claim if the statutory requisites are satisfied but does not as a matter of law reach distinct claims for negligent activity and negligent undertaking. The trial court's judgment is affirmed in part, and reversed and remanded in part. Houston's 14th Court of Appeals, NO. 14-13-00044-CV, 04-17-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

COREY JULES TEAMER, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges his conviction for alleged criminal trespass. When a criminal statute allows an element of an offense to be proven by alternative methods, more than one of which is alleged in the charging instrument, the hypothetically correct jury charge requires the state to prove only one of the alleged alternatives beyond a reasonable doubt. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, NO. 14-12-00760-CR, 04-08-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FOURTH DISTRICT SAN ANTONIO

EX PARTE Thomas Edward CASTILLO

The trial court denied the appellant's pre-trial application for writ of habeas corpus. The appellant claims that the two counts alleged in the indictment are lesser-included offenses of an acquitted murder charge. The charge of burglary violates the double jeopardy clause because the state already prosecuted the appellant for an unlawful entry-- the allowable unit of prosecution is the unlawful entry and not the complainant. The capital murder indictment in the first trial did not specify in the underlying burglary allegation the identity of the alleged aggravated assault complainant. Any later prosecutions for the aggravated assault of another complainant is jeopardy-barred as long as aggravated assault is a lesser-included offense of the alleged burglary and thus the alleged capital murder. The trial court's order is reversed and remanded. San Antonio Court of Appeals, No. 04-13-00615-CR, 04-16-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FOURTH DISTRICT SAN ANTONIO

Ernest MUNGIA, Appellant v. VIA METROPOLITAN TRANSIT, Appellee

In a bill of review and claim for declaratory relief, the trial court granted the appellee's motion for summary judgment and awarded attorney's fees. The issue of whether the improper service rendered the default judgment void is the same in both the bill of review and declaratory judgment action. The declaratory judgment action afforded the appellee no relief greater than that afforded by its bill of review because both causes of action sought to set aside the default judgment. Accordingly, the declaratory judgment action served no purpose other than to obtain attorney's fees. The attorney's fee award is reversed and rendered, and the remaining claims are remanded. San Antonio Court of Appeals, No. 04-13-00549-CV, 04-09-2014

Practice Areas: Appellate Law - Civil

COURT OF APPEALS OF TEXAS FOURTH DISTRICT SAN ANTONIO

Larry DIEKEN, Appellant v. The STATE of Texas, Appellee

The trial court ordered the appellant to pay his court-appointed attorney fees. The appellant testified that he had a 401(k) account and might receive funds from an insurance claim. A third party was paying an expert's fee. The appellant retained substitute counsel. The trial court's implicit determinations that 1. a material change occurred sometime after it found the appellant indigent and before the appellant retained counsel, and 2. the appellant was able to pay the $524.50 in court-appointed attorney's fees are reasonably supported by the evidence. The trial court's judgment is affirmed, appellate counsel's motion to withdraw is granted. San Antonio Court of Appeals, No. 04-12-00866-CR, 4-16-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FOURTEENTH DISTRICT HOUSTON

ROBERT MICHAEL RILEY, Appellant v. THE STATE OF TEXAS, Appellee

The appellant challenges his conviction for allegedly making a false report with the Texas Department of Family and Protective Services. A Texas Family Code Chapter 261 report is "made" in the county of the Child Protective Services office that receives notification from the department. Here, Galveston County was a proper county for the prosecution of the offense. The county with the greatest interest in prosecuting a false report made under Chapter 261 will generally be the county in which resources were spent on the unnecessary investigation. Even if venue were not proper in Galveston County, that error is not reversible. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, NO. 14-12-00729-CR, 04-15-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS SECOND DISTRICT FORT WORTH

PHILIP GREGORY BYRD, LUCY LEASING CO., LLC, AND PGB AIR, INC., APPELLANTS v. PHILLIP GALYEN, P.C. D/B/A BAILEY & GALYEN ATTORNEYS AT LAW AND R. KEITH SPENCER, APPELLEES

The appellants filed suit alleging legal malpractice. One of the appellants alleged damages resulting from a contempt order, and the trial court granted the appellee's no-evidence motion as to that claim. The nature of a remedial-contempt order in a civil case differs from a criminal conviction such that the policy considerations underlying the sole-proximate-cause bar do not apply. Therefore, the sole-proximate-cause bar does not foreclose the alleged legal-malpractice claims to the extent they allege damages arising from the appellees' alleged actions leading to the civil remedial-contempt order. The trial court's order is reversed and remanded. Fort Worth Court of Appeals, NO. 02-13-00359-CV, 04-17-2014

Practice Areas: Legal Profession , Attorney Malpractice

COURT OF APPEALS OF TEXAS SECOND DISTRICT FORT WORTH

UNITED FOOD AND COMMERCIAL WORKERS INTERNATIONAL UNION, ORGANIZATION UNITED FOR RESPECT AT WALMART, NORTH TEXAS JOBS WITH JUSTICE, LESTER EUGENE LANTZ, AND DOES 1-10, APPELLANTS v. WAL-MART STORES, INC.; WAL-MART REAL ESTATE BUSINESS TRUST; WAL-MART REALTY COMPANY; WAL-MART STORES TEXAS, LLC; WAL-MART STORES EAST, LP; AND SAM'S EAST, INC., APPELLEES

Wal-Mart filed suit alleging trespass against several protest groups. The trial court denied a motion to dismiss under the Texas Citizens' Participation Act. Wal-Mart established by clear and specific evidence a prima facie case for each essential element of trespass. The protestors did not establish a valid defense; the protestors failed to bring forth evidence establishing that Wal-Mart consented to the protestor's presence on Wal-Mart property for the purpose of engaging in mass demonstrations. The trial court's order is affirmed. Fort Worth Court of Appeals, NO. 02-13-00353-CV, 04-17-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS NINTH DISTRICT BEAUMONT

IN RE STEPHEN LOUIS HARTMAN

The petitioner requests a writ of mandamus ordering a judge to allow access to a court reporter's audio recording. Although, generally, a trial court's acts concerning discovery are discretionary and not subject to a writ of mandamus, decisions involving pretrial discovery of evidence that is exculpatory, mitigating, or privileged are not discretionary. Because the recording includes Brady material, the trial court's discovery action as to those portions was ministerial, not discretionary. Mandamus is conditionally granted. Beaumont Court of Appeals, NO. 09-13-00579-CR, 04-16-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS FOURTH DISTRICT SAN ANTONIO

Deshawn Ondrey WILLIAMS, Appellant v. The STATE of Texas, Appellee

The appellant was found guilty of alleged terroristic threats on a public servant. Although the words allegedly used threatened a future harm, the jury is permitted to draw reasonable inferences from basic facts to ultimate facts. There is sufficient evidence to support the jury's verdict regarding fear of imminent serious bodily injury. The appellant was acquainted with the complainant, the appellant is larger than the complainant, and the evidence supports the claim that the appellant acted in a threatening manner. The trial court's judgment is affirmed as modified to remove the assessment of attorney's fees. San Antonio Court of Appeals, No. 04-13-00386-CR, 04-16-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS THIRD DISTRICT AUSTIN

Bastrop Central Appraisal District, Appellant v. Acme Brick Company, Appellee

An appraisal district appeals the trial court's judgment ordering that the taxpayer is entitled to a pollution-control exemption. The taxpayer argues that it reached agreement with the district in 2004 that the property was entitled to the pollution-control exemption, and consequently, Tax Code §1.111(e) deprives the district of authority to rescind the appraisal agreement by removing the exemption. Because the agreement concerns a statutorily defined matter -- one that may be or has been protested -- the parties' agreement to the property value based on the granted exemption is final under §1.111(e)(1) and became final at the moment it was reached. Any subsequent determinations by the appraisal review board about property value are irrelevant. The appraisal district may not take subsequent action that is contrary to that agreement, even in situations in which the Property Tax Code would otherwise allow it to reconsider a previous decision. The trial court's judgment is affirmed. Austin Court of Appeals, NO. 03-12-00498-CV, 04-11-2014

Practice Areas: Taxation

COURT OF APPEALS OF TEXAS THIRD DISTRICT AUSTIN

The Texas Commission on Environmental Quality and Waste Control Specialists, LLC, Appellants v. Sierra Club, Appellee

The appellants, the Texas Commission on Environmental Quality and Waste Control Specialists LLC, appeal from a district-court judgment that reversed a TCEQ order granting WCS a low-level radioactive waste disposal license. The district court remanded for a contested-case hearing. Information contained in the administrative record and available to the commissioners, including the Executive Director's response and recommendation, the information contained in its response, the environmental analysis, the draft permit, and WCS's application, provides a reasonable basis for TCEQ's decision to deny Sierra Club's hearing request. The administrative record provides a reasonable basis for TCEQ's conclusion that a majority of the affected-person factors weigh against two persons who Sierra Club asserted had standing to assert a hearing in their own right. The district court's judgment is reversed and rendered. Austin Court of Appeals, NO. 03-12-00335-CV, 04-18-2014

Practice Areas: Environmental Law

COURT OF APPEALS OF TEXAS SIXTH DISTRICT TEXARKANA

MT. PLEASANT INDEPENDENT SCHOOL DISTRICT, Appellant v. DONA K. ELLIOTT, Appellee

The trial court overruled a school district's plea to the jurisdiction in this case involving a school bus owned by the district, but operated and maintained by a contractor. There is no evidence that district employees exercised direct control over the bus in question at the time of the accident. The plaintiff claims that allegedly negligent pre-contract maintenance work amounts to an operation or use of the bus under the Texas Tort Claims Act. Brake maintenance or repair does not fall within the definition of "operation" or "use." The trial court's denial is reversed and rendered. Texarkana Court of Appeals, No. 06-13-00115-CV, 04-17-2014

Practice Areas: Torts

COURT OF APPEALS OF TEXAS SIXTH DISTRICT TEXARKANA

ROLAND DOUGLAS BOLDEN, JR., Appellant v. THE STATE OF TEXAS, Appellee

The appellant claims that that the trial court erred in failing to include the medical-defense instruction in its jury charge. Changing a soiled diaper (together with the washing and/or cleaning away of fecal material) is related to the maintenance of the child's health and is consistent with attending to the child's safety and well-being; such conduct falls within the purview of medical care. Although the plaintiff denied inserting his finger in the complainant's vagina, that testimony does not preclude entitlement to the submission of the medical-care defense. The element of penetration is satisfied by less than this. The contact described by the appellant could reasonably be regarded as more intrusive than contact with the outer vaginal lips. Thus, sufficient evidence existed at trial to show that the appellant essentially admitted, under the doctrine of confession and avoidance, to the element of penetration. The error was harmful. The trial court's judgment is reversed and remanded for a new trial. Texarkana Court of Appeals, No. 06-13-00147-CR, 04-11-2014

Practice Areas: Criminal Law

COURT OF APPEALS OF TEXAS THIRD DISTRICT AUSTIN

Daniel Caldwell, Appellant v. Jennifer Garfutt, Appellee

In this rehearing, the appellant challenges the trial court's contempt order by writ of mandamus. The trial court did not abuse its discretion under Texas Family Code §157.163 by failing to inform the appellant that he had the right to be represented by an attorney or a court-appointed attorney if he was indigent. At the hearing, the appellant confirmed that he knew he had a right to counsel. The trial court previously sustained a contest to an affidavit of indigency, and the appellant had previously been represented by counsel. The contempt order addresses civil and criminal contempt separately and states the amounts that he must pay and when the payments are due. The trial court did not abuse its discretion as to the terms of compliance with the order. Mandamus relief is denied. Austin Court of Appeals, NO. 03-12-00696-CV, 04-17-2014

Practice Areas: Family Law

COURT OF APPEALS OF TEXAS THIRD DISTRICT AUSTIN

City of Austin, Appellant [...] v. Raymond E. Chandler, Daniel J. Amador, David Becker, John Beese, Nathan Blane Brown, Michael Carter, Anastacio Cruz, Eddie de la Garza, Jose L. Delgado, Leland Scott DePue, Carlos S. Dominguez, Kenneth J. Ferro, David Gannon, Abel Garza, Vincent Giles, Jr., Gregory T. Graboskie, M. Michael Hart, Bonnie Harvey, Cecil Jones, Anthony Kubesch, Christopher Megliorino, Randy Mulroy, Lori Peterson, Steven K. Reid, Roberto Rodriguez, Jorge Rojas, Richard Sanders, Harry [...]

A jury returned a verdict in favor of the appellees, public safety officers over the age of 40 who worked for the appellant, the City of Austin's now defunct Public Safety Emergency Management Department. The appellees asserted that the city's method of consolidating the PSEM into the Austin Police Department disparately impacted older PSEM employees by stripping them of their years of service. Although the letter complaints do not use the phrases "disparate impact" or "facially neutral policy," they sufficiently allege a disparate-impact claim such that they have exhausted their administrative remedies for those claims. The jury could reasonably have concluded that a 9.9 percentage-point difference in raises after the consolidation is sufficiently substantial to raise an inference of causation. The trial court's judgment is affirmed. Austin Court of Appeals, NO. 03-12-00057-CV, 04-17-2014

Practice Areas: Labor and Employment

COURT OF APPEALS OF TEXAS THIRD DISTRICT AUSTIN

Texas Department of State Health Services; and Kyle Janek, in his Official Capacity as Executive Commissioner of the Texas Health & Human Services Commission, Appellants [...] v. Marcela Balquinta; Planned Parenthood of Greater Texas Family Planning and Preventative Health Services, Inc.; Planned Parenthood Association of Hidalgo County Texas, Inc.; Planned Parenthood Association of Lubbock, Inc.; Planned Parenthood Association of Cameron and Willacy Counties; Family Planning Associates of S [...]

Appellees, the plaintiffs, contend that appellants lack statutory authority to craft the Texas Women's Health Program so as to exclude Planned Parenthood entities from participation. This is an appeal of the district court's denial of a plea to the jurisdiction. The appellees have standing. The Texas Supreme Court's interpretation of APA §2001.038 does not invoke a higher standard for standing than the general doctrine. Appellees have not asserted any ripe UDJA claims that are not redundant of their §2001.038 claims; those claims are dismissed, though the appellees may reassert any non-redundant UDJA claims. The district court has jurisdiction to award permanent injunctive relief in connection with a declaratory judgment invalidating a rule under §2001.038. There was no harmful error, if any, in the district court's assertion of jurisdiction over the claims for injunctive relief to the extent they are also addressed, as a formal matter, to the Commissioner of the Texas Health & Human Services Commission in his official capacity. The district court's order is reversed in part and affirmed in part. Austin Court of Appeals, NO. 03-13-00063-CV, 04-09-2014

Practice Areas: Administrative Law

COURT OF APPEALS OF TEXAS TWELFTH DISTRICT TYLER

ELAINE STEPHENS, INDEPENDENT EXECUTRIX OF THE ESTATE OF VENCIE BEARD, DECEASED, AND INDEPENDENT EXECUTRIX OF THE ESTATE OF MELBA BEARD, DECEASED, APPELLANT v. BRANDON SCOTT BEARD, BRIAN JAKE GILMORE, PHILIP CHASE JOHNSON, MEGAN JOHNSON, JEREMY HOPKINS, LINDSEY BEARD, PAMELA JOHNSON, ROLAND SCOTT BEARD, JANET LEA HOPKINS, INDIVIDUALLY AND AS TRUSTEE FOR MATTHEW C. HOPKINS AND BEVERLY KAY GILMORE, APPELLEES

An independent executrix appeals from declaratory judgments construing Vencie Beard's will and Melba Beard's will. The wills included a "common disaster" clause. The record shows that Melba was found at her home, dead of a gunshot wound allegedly inflicted by Vencie who then allegedly shot himself. He was transported to a hospital where he died. The shots were fired in one episode, which is a common disaster in spite of the fact that Vencie did not die immediately. The Simultaneous Death Act applies to the "common disaster" provisions of the wills because the provisions are worded in a manner consistent with the Act. The trial court's judgment is affirmed. Tyler Court of Appeals, NOS. 12-13-00160-CV, 12-13-00161-CV, 04-10-2014

Practice Areas: Trusts and Estates

COURT OF CRIMINAL APPEALS OF TEXAS

THE STATE OF TEXAS v. JEREMY THOMAS, Appellee

The trial court granted the defendant a new trial based on the defendant's failure to call a possibly exculpatory witness. The defendant's motion was not based on alleged ineffective assistance of counsel. The order was reversed by the court of appeals. A grant of new trial -- for guilt or punishment -- may not be based on evidence that the defense chose not to introduce, especially when defense counsel immunized himself from testifying about his strategy by explicitly declining to allege ineffective assistance of counsel. The court of appeals' judgment is affirmed. Court of Criminal Appeals, NO. PD-0121-13, 04-16-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

LOUIS DOUGLAS ROGERS, Appellant v. THE STATE OF TEXAS

In light of the Court of Criminal Appeals' recent opinion in Johnson concerning court costs, the court of appeals' judgment is vacated and remanded., NO. PD-773-13, 04-16-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

DAMIAN RICARDO FLORES, Appellant v. THE STATE OF TEXAS

In light of the Court of Criminal Appeals' recent opinion in Johnson concerning court costs, the court of appeals' judgment is vacated and remanded., NO. PD-1459-13, 04-16-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

BRIAN CAMPBELL, Appellant v. THE STATE OF TEXAS

The state sought discretionary review of the court of appeals' acquittal of the appellant's criminal-mischief conviction. The property owner's unobjected-to hearsay testimony regarding the payment from his insurance supplied the critical piece of evidence necessary to elevate the owner's testimony from a mere lay opinion as to damages to the type of evidence sufficient to prove pecuniary loss. The court of appeals' judgment is reversed and the trial court's judgment is reinstated. Court of Criminal Appeals, NO. PD-0854-13, 04-16-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

REYNALDO LAFAYETTE JELKS, Appellant v. THE STATE OF TEXAS

In light of the Court of Criminal Appeals' recent opinion in Johnson concerning court costs, the court of appeals' judgment is vacated and remanded., NO. PD-0381-13, 04-16-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

EMERSON HANDY, Appellant v. THE STATE OF TEXAS

In light of the Court of Criminal Appeals' recent opinion in Johnson concerning court costs, the court of appeals' judgment is vacated and remanded., NO. PD-717-13, 04-16-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

ALI YAZDCHI, Appellant v. THE STATE OF TEXAS

The appellant argues that the court of appeals erred by holding that the trial court properly refused his pretrial sworn motion for community supervision on the ground that he was ineligible for community supervision from a jury. The appellant was ineligible for jury-recommended community supervision because, even though he received judicial clemency on an earlier community supervision, that conviction was resurrected for the limited purpose of probation ineligibility when he was convicted of the present offense. The court of appeals' judgment is affirmed. Court of Criminal Appeals, NOS. PD-0007-13 & PD-0008-13, 04-09-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

DANA HANNA, Appellant v. THE STATE OF TEXAS

The court of appeals found that a resitution order requiring the appellant to compensate a utility company for a damaged pole was improper. Texas Code of Criminal Procedure Article 42.037 sets out a comprehensive restitution scheme but does not define the term "victim." For purposes of the restitution statute, a "victim" is any person who suffered loss as a direct result of the criminal offense. Restitution may be ordered, when appropriate, in DWI cases. There is no requirement that a restitution victim be alleged in the indictment. To obtain restitution, the state must prove that appellant's alleged intoxicated driving was the "but for" and proximate cause of the damage; there was no such proof here. The court of appeals' judgment is affirmed. Court of Criminal Appeals, NO. PD-0876-13, 04-09-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

IRVING MAGANA GARCIA, Appellant v. THE STATE OF TEXAS

The court of appeals found that the appellant effectively made an express waiver of his right to an interpreter. An appellate court can determine that a valid waiver has occurred even if the record fails to contain a waiver colloquy, so long as there is other evidence that a valid waiver actually occurred. The record here contains evidence that trial counsel told appellant that he had a right to an interpreter, that appellant agreed with counsel not to request an interpreter, and that appellant and counsel communicated their desire not to have an interpreter to the trial judge, albeit in an off-the-record bench conference. The court of appeals' judgment is affirmed. Court of Criminal Appeals, NO. PD-0646-13, 04-09-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

SILVESTRE CORTEZ ROMERO, Appellant v. THE STATE OF TEXAS

The court of appeals held that the evidence was insufficient to support the court costs assessed against the appellant. The case is remanded to the court of appeals for review in light of Johnson, an opinion not originally available to the court of appeals in this case. Appellant's petition for discretionary review is denied. Court of Criminal Appeals, NO. PD-1001-13, 04-16-2014

Practice Areas: Criminal Law

COURT OF CRIMINAL APPEALS OF TEXAS

RAIMOND KEVON GIPSON, Appellant v. THE STATE OF TEXAS

The court of appeals reversed revocation of appellant's community supervision on the basis that the state failed to satisfy its burden of showing that appellant was able to pay his fine and various court-assessed fees. Texas Code of Criminal Procedure article 42.12 §21(c) does not apply to fines. The court of appeals' judgment is reversed and the trial court's judgment is affirmed. Court of Criminal Appeals, NO. PD-0377-13, 04-16-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

OLESS BRUMFIELD; ET AL., Plaintiffs, UNITED STATES OF AMERICA, Intervenor-Appellee, v. WILLIAM J. DODD, Superintendent of Public Education of the State of Louisiana; ET AL., Defendants, MITZI DILLON; TITUS DILLON; MICHAEL LEMANE; LAKISHA FUSELIER; MARY EDLER; LOUISIANA BLACK ALLIANCE FOR EDUCATIONAL OPTIONS, Movants-Appellants

In this appeal of an order denying intervention, the movants are parents whose children receive school vouchers via Louisiana's Scholarship Program. The United States initially sought an injunction on the ground that the voucher program constituted public assistance to private schools in violation of a desegregation order. After the parents moved to intervene as a matter of right for the limited purpose of opposing the motion for permanent injunction, the United States informed the court that the only relief it sought was the creation of a process for Louisiana to provide information needed to monitor the program. The parents have met the requirements for intervention as of right. The denial of their motion to intervene is reversed. 5th U.S. Circuit Court of Appeals, No. 13-31262 Summary Calendar, 04-10-2014

Practice Areas: Education Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

TOMMY LYNN SELLS; RAMIRO HERNANDEZ, Plaintiffs - Appellees v. BRAD LIVINGSTON, Executive Director, Texas Department of Criminal Justice, WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, JAMES JONES, Senior Warden, Huntsville Unit, and UNKNOWN EXECUTIONERS, Defendants - Appellants

The district court enjoined the state from executing the appellant. The appellant seeks information regarding the pentobarbital used in the state's single-drug protocol, including the source, dates of manufacture, raw ingredients, and information pertaining to testing. Failing to disclose the information is not a due process violation; no appellate opinion has held that there is a liberty interest in obtaining information about execution protocols. Speculation that the drug may be contaminated or improperly compounded is not enough to demonstrate a likelihood on the merits. The motion to vacate the stay is granted, and the preliminary injunction is reversed. 5th U.S. Circuit Court of Appeals, No. 14-70014, 04-07-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

DILSHAD NASEEM SATTANI; NASEEM KAMRUDDIN SATTANI, also known as Merchant Asheef, Petitioners v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL, Respondent

The Board of Immigration Appeals held that the appellant cannot adjust status under Immigration and Nationality Act §245(i) because she is rendered inadmissible under§212(a)(6)(C)(i) for having allegedly entered the U.S. with falsified immigration documents. Unlike the arguable contradiction between INA §245(i) and INA §212(a)(6)(A)(i), no absurdity or contradiction results from applying INA §212(a)(6)(C)(i) as written. Petitioners allege no constitutionally protected liberty or property interest in obtaining discretionary relief, and illegal aliens do not possess a constitutionally protected right to adjustment of status or eligible discretionary relief. The petition for review is denied as to the 245(i) argument, and the remainder is dismissed for lack of jurisdiction. 5th U.S. Circuit Court of Appeals, No. 13-60219, 04-14-2014

Practice Areas: Immigration Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In re: ISMAEL PADILLA, Movant;ISMAEL HERNANDEZ PADILLA, Petitioner-Appellant v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONAL DIVISION, Respondent-Appellee

The movant requests a certificate of appealability so that he may appeal the district court's decision to deny relief under 28 U.S.C. §2254 and for permission to file a successive §2254 application challenging two convictions. The movant may file a successive application only if he makes a prima facie showing that a proposed claim relies on a new rule of constitutional law that the U.S. Supreme Court has made retroactive to cases on collateral review. The rules applied in Trevino, Frye and Cooper are not new constitutional rules. The movant produced no new evidence of actual innocence. The application is denied, and a sanction warning issued. 5th U.S. Circuit Court of Appeals, No. 13-10674, No. 13-10746 and No. 13-10747, USDC No. 3:13-CV-1855, USDC No. 3:12-CV-2160, 09-24-2013

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

MARY M. ZAPATA, Individually and as Administrator of the Estate of Jaime J. Zapata; AMADOR ZAPATA, JR.; VICTOR AVILA, JR., Plaintiffs - Appellees v. KENNETH MELSON; WILLIAM D. NEWELL; HECTOR TARANGO; DAVID VOTH; JUAN GELISTA; JERRY MILES; ANTHONY SALISBURY; RAUL AGUILAR; LANNY BREUER; LUIS ALVAREZ, Defendants - Appellants

The district court allowed discovery and deferred a ruling on the appellants' assertion of qualified official immunity. The district court did not properly follow the framework for claims of qualified immunity. The district court did not explicitly rule on the defendants' qualified-immunity defense; the district court failed to make an initial determination that the plaintiffs' allegations, if true, would defeat qualified immunity; the district court did not identify any questions of fact it needed to resolve before it would be able to determine whether the defendants were entitled to qualified immunity. The district court's order is vacated and remanded with instructions. 5th U.S. Circuit Court of Appeals, No. 13-40762, 04-18-2014

Practice Areas: Appellate Law - Civil

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. LUCIANO PASCACIO-RODRIGUEZ, Defendant-Appellant.

The appellant contends that the district court erred in concluding that his prior state-court conviction for conspiracy to commit murder warranted a 16-level enhancement under U.S. Sentencing Guidelines §2L1.2. The Guidelines do not require an overt act as an element of conspiracy to commit murder. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-40264, 04-11-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

In the Matter of: DENISE M. BANKSTON, Debtor;HESS MANAGEMENT FIRM, LLC, Appellee, v. DENISE M. BANKSTON, Appellant.

The district court overruled the bankruptcy court in this Louisiana adversary proceeding, awarding the full value of a contract to the plaintiff. The contract involves the provision of managment services to a gravel pit. The defendant agreed to pay the plaintiff the greater of $25,000 per month or $.50 per ton on all gravel produced during a particular month. On a certain date, the defendant terminated the agreement. By awarding the plaintiff the full $1.5 million, the plaintiff would be placed in a better position than it would have been had the contract been fulfilled. This would violate Louisiana's general principle of expectation damages. The district court's judgment is reversed. 5th U.S. Circuit Court of Appeals, No. 12-31016, 04-18-2014

Practice Areas: Contracts

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

JESUS IVAN LOPEZ, Plaintiff Appellee v. SENTRILLON CORPORATION, Defendant Third Party Plaintiff-Appellant v. UNITED STATES OF AMERICA, Third Party Defendant Appellee

The district court dismissed the claims against the United States under the derivative jurisdiction doctrine in this suit that followed the plaintiff's alleged injury at a construction project for the U.S. Customs and Border Protection. The appellant, the employer and contractor, appeals the dismissal and the remand to state court. Congress has abrogated the derivative jurisdiction doctrine only with respect to removals under 22 U.S.C. §1441. The doctrine is better understood not as jurisdictional, but as a procedural bar to removal. The appellant waived its argument against remand to state court by failing to challenge the district court's alternative basis under 28 U.S.C. §1367(c) for declining to exercise supplemental jurisdiction. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-50790, 04-10-2014

Practice Areas: Torts

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRAND COUPON NETWORK, L.L.C., Plaintiff-Appellant v. CATALINA MARKETING CORPORATION; PAMELA SAMNIEGO; JOE HENSON; L. DICK BUELL, Defendants-Appellees

The appellant appeals the dismissal of its claims alleging deceptive trade practices, trademark violations, and related fraud and tort claims, all stemming from the defendants' creation of CouponNetwork.com, a website and business "remarkably similar" to the appellant's existing business, BrandCouponNetwork.com. The district court erred when it considered evidence outside the pleadings-and not referred to therein-without converting the motion to dismiss into a motion for summary judgment. A genuine issue of material fact exists regarding the timeliness of the claims. The district court's judgment of dismissal of the claims against the corporation is vacated, the dismissal against individual defendants is affirmed because the appellant's argument was not made before the district court. 5th U.S. Circuit Court of Appeals, No. 13-30756, 04-08-2014

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

CARL E. WOODWARD, L.L.C.; GRAY INSURANCE COMPANY, Plaintiffs Appellees Cross Appellants v. ACCEPTANCE INDEMNITY INSURANCE COMPANY, Defendant Appellant Cross Appellee

The appellant challenges the panel's conclusion that the claims alleged against it in a "complaint" (cross-claims by a co-defendant), taken together with damages identified in an investigative report, did not state a claim for damages arising out of the ongoing operations conducted by a construction company. Taken as true, the statements in the report identify only that the construction company allegedy failed to conform its work to plans and specifications and that, when condominium units were inspected well after substantial completion of the project, water damage was found. The failure to say anything in the report about the timing of the damages does not create a duty to defend. The petition for rehearing is denied. 5th U.S. Circuit Court of Appeals, No. 12-60561, 04-15-2014

Practice Areas: Insurance Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

DAVID E. MACK, Plaintiff-Appellant v. EQUABLE ASCENT FINANCIAL, L.L.C., Successor in interest to HILCO RECEIVABLES, L.L.C., Defendant-Appellee

The magistrate court granted the appellee's motion for summary judgment based on the assertion that the pro se appellant's Fair Credit Reporting Act claim is time barred. The appellant argues that he could not have discovered the alleged violation until he had researched the statute. The limitations period began to run when the appellant discovered that the appellee had allegedly obtained his credit report without his consent. The judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-40128 Summary Calendar, 04-11-2014

Practice Areas: Consumer Protection

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. VICTOR GARCIA-CARRILLO, Defendant-Appellant.

The government declined to move in the district court for a one-level reduction for acceptance of responsibility under U.S. Sentencing Guidelines Manual §3E1.1(b) because the appellant refused to waive his right to appeal. In order for a sentencing error to affect a defendant's substantial rights the incorrectly calculated sentencing range must be materially higher than the correctly calculated guidelines range. If the correct and incorrect sentencing ranges overlap and the defendant has been sentenced within this overlap, it is not assumed, in the absence of additional evidence, that the sentence affects a defendant's substantial rights. Godin is not followed; in that case, the 1st U.S. Circuit Court of Appeals remanded on the basis that the existence of a non-retroactive amendment could plausibly affect the district court's choice of sentence even though it was not directly applicable to the defendant's case. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-11161, 04-15-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

GREGORY WILLIS, Plaintiff-Appellant v. CLECO CORPORATION, Defendant-Appellee

The appellant challenges the district court's grant of summary judgment in favor of his former employer on the appellant's suit alleging race discrimination and retaliation. The appellant provided summary judgment evidence sufficient to show a genuine dispute of material fact about whether the employer's stated reasons are a pretext for an underlying retaliatory motive; an affidavit relates a conversation during which the human resources manager allegedly said he was "very pissed" that the appellant had reported another employee's alleged racially hostile statements. The district court's summary judgment is reversed and remanded in part and affirmed in part. 5th U.S. Circuit Court of Appeals, No. 13-30217, 04-08-2014

Practice Areas: Labor and Employment

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

LICHO ESCAMILLA, Petitioner-Appellant v. WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee

The petitioner alleges ineffective assistance of counsel when his trial attorneys failed to adequately investigate and present mitigation evidence at the punishment phase of his capital murder trial. Reasonable jurists could debate that the state habeas court unreasonably applied Strickland and its progeny when it concluded that counsel's limited mitigation investigation and presentation during sentencing was not deficient despite the available, unpursued "red flags" regarding the petitioner's troubled childhood, and that regardless of any deficiency the petitioner could not establish prejudice. Martinez does not apply to claims that were fully adjudicated on the merits by the state habeas court because those claims are, by definition, not procedurally defaulted. The COA is granted in part and denied in part. 5th U.S. Circuit Court of Appeals, No. 12-70029, 04-15-2014

Practice Areas: Criminal Law

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

ROBERT CHARLES LADD, Petitioner-Appellant v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee

The petitioner claims he is mentally retarded and therefore death penalty ineligible. The parties agreed that the petitioner suffered from some degree of deficit in adaptive functioning. The experts sharply disagreed as to whether these deficits were related to the petitioner's subaverage intellectual functioning. The district court was in a better position to reach its conclusion, supported by the evidence, that the state's expert was more persuasive. The district court's denial of habeas relief is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-70011, 04-08-2014

Practice Areas: Criminal Law

5th Cir.

Austin v. Kroger Texas L.P.

The appellant in this substituted opinion challenges the district court's grant of summary judgment for the defendant. The appellant allegedly slipped on an oily substance on the floor that was sprayed there by a condenser unit. The appellant may not pursue both a negligent activity and premises defect theory based on the same injury. The ordinary negligence claim is reversed and remanded to allow the district court to consider in the first instance whether the appellant's necessary instrumentalities theory is sufficient to support a standalone ordinary negligence claim. A question is certified to the Texas Supreme Court regarding whether an employee's awareness of a defect eliminates the employer's duty to maintain a safe workplace. 5th U.S. Circuit Court of Appeals, No. 12-10772, 03-21-2014

Practice Areas: Torts

Tex. App. Dist. 14

Elmgren v. Ineos USA, LLC

An employer of a subcontractor was allegedly injured following an explosion. The plaintiffs appeal a judgment in favor of the contractor and the contractor's working team leader. Texas Civil Practice and Remedies Code §95.002 applies to claims "against a property owner, contractor, or subcontractor," not to claims against an employee of a property owner, contractor, or subcontractor. Chapter 95 defeats a premises-liability claim if the statutory requisites are satisfied but does not as a matter of law reach distinct claims for negligent activity and negligent undertaking. The trial court's judgment is affirmed in part, and reversed and remanded in part. Houston's 14th Court of Appeals, No. 14-13-00044-CV, 03-20-2014

Practice Areas: Torts

Tex. App. Dist. 14

City of South Houston v. Rodriguez

A city appeals the denial of its plea to the jurisdiction in this suit alleging retaliatory discharge. The plaintiff failed to establish that alleged "ticket fixing" was a violation of the law, and failed to show that a reasonable chief clerk with her training and experience would have believed ticket fixing was occurring based on 14 tickets having been improperly processed in an office with the problems faced by this city's municipal court office. The trial court's order is reversed and remanded. Houston's 14th Court of Appeals, No. 14-12-01119-CV, 03-20-2014

Practice Areas: Labor and Employment

Tex. App. Dist. 3

Texas Department of Public Safety v. G. B. E.

The Texas Department of Public Safety appeals an order of expunction in favor of G.B.E. related to his arrest for driving while intoxicated. A person is not entitled to have any arrest records arising from a multi-charge arrest expunged under Texas Code of Criminal Procedure article 55.01(a)(2) when 1. one or more charges result in a conviction (for that particular charge) and 2. any remaining charge is dismissed, but that dismissal results in a final conviction of any charge arising from the same arrest. The trial court's judgment is reversed and rendered. Austin Court of Appeals, No. 03-13-00017-CV, 03-20-2014

Practice Areas: Criminal Law

Tex. App. Dist. 5

Beinar v. Deegan

This is a suit claiming damages to the appellant's property allegedly caused by their neighbor's landscaping renovations. A party must not be allowed to present a material alternation of an expert's opinion that would constitute a surprise attack. Because the plaintiff failed to present any competent evidence of present or future damages to her property, the contract and negligence claims are not ripe. No evidence supports the alleged liability of the homeowner's association for approving the landscape changes. The trial court's judgment is vacated and dismissed in part, and affirmed in part. Dallas Court of Appeals, No. 05-12-01616-CV, 03-20-2014

Practice Areas: Torts

Tex. App. Dist. 5

Ennis, Inc. v. Dunbrooke Apparel Corporation

The appellant sued the appellees for tortious interference with a former empoyee's noncompetition ageement. The trial judge erred by applying California law in the summary judgment context. None of the Restatement (Second) of Conflict of Laws §188(2) factors support the conclusion that California has a more significant relationship to the parties and the transaction than Texas. The trial court's judgment is reversed and remanded. Dallas Court of Appeals, No. 05-12-01014-CV, 03-21-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 5

Reeder v. Curry

The appellant challenges a take-nothing summary judgment in this case involving a contract for deed. The trial court did not err by denying a motion for continuance., given the length of time the case had been on file and the length of time the trial court could have believed the appellant should have been aware of the inadequacy of the property description. The property description in the contract for deed is inadequate because it does not provide the means or data by which the particular land to be conveyed may be identified with reasonable certainty. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-00836-CV, 03-20-2014

Tex. App. Dist. 7

Yarbrough v. State

The appellant was convicted of alleged interference with public duties and alleged resisting arrest. There is no distinction between force directed towards the officer and force directed away from the officer in Texas Penal Code §38.03. Evidence that the accused "shut down" the peace officer's performance of duty is not required to establish a violation of Texas Penal Code §38.15. The trial court's judgment is affirmed. Amarillo Court of Appeals, No. 07-12-00108-CR, 03-20-2014

Practice Areas: Criminal Law

Tex. App. Dist. 8

Honeywell International, Inc. v. Denton Central Appraisal District

The trial court granted summary judgment to an appraisal district and review board in which the taxpayer asserted that the district exceeded its authority by reappraising the taxpayer's property after the appraisal roll had been certified. The district, as permitted by Texas Tax Code §§25.21 and 25.23, attached the back-appraisal as a supplement to the 2003 appraisal roll, the regular roll for the current year. The taxpayer does not explain how it was harmed by the trial court's error, if any, in identifying the Notice of Appraised Value that the taxpayer received as a "Supplemental" notice rather than a "Corrected" notice. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00139-CV, 03-19-2014

Practice Areas: Taxation

Tex. App. Dist. 8

IHR Security, LLC v. Innovative Business Software, Inc.

The appellee, a software company, sued the appellant for breach of two agreements. The "notwithstanding anything to the contrary" language in the limitation of liability provision does not operate to nullify other provisions in the license agreement. Such an interpretation would render meaningless the other provisions regarding fees and payment. Because fact issues remain regarding invoices, the trial court's judgment is reversed and remanded in part, and affirmed in part. El Paso Court of Appeals; No. 08-12-00227-CV, 03-19-2014

Practice Areas: Contracts

Tex. App. Dist. 8

T.W. v. Texas Department of Family & Protective Services

The appellant appeals from a judgment terminating his parental rights. Because a best interest determination focuses on the child, and not the parent, and the trial court was not required to consider alternatives to termination, the trial court did not abuse its discretion in excluding evidence regarding the suitability of returning the child to the care of her paternal aunt. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-13-00286-CV, 03-19-2014

Practice Areas: Family Law

Tex. App. Dist. 8

(One)2000 Freightliner truck-tractor Vin: 1FUYDSEBXYDB07196 v. State

The appellant challenges a no-answer default judgment granted in favor of the state in a civil forfeiture case. The state's motion for substituted service and supporting affidavit had not been filed when the trial court entered an order authorizing the process server to serve the appellant by posting the forfeiture notice in the courthouse. The record fails to show that the appellant was served in strict compliance with Texas Rule of Civil Procedure 106(b). El Paso Court of Appeals, No. 08-12-00367-CV, 03-19-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 8

Rio Valley, LLC v. City of El Paso

A taxpayer appeals a final judgment on its challenge to ad valorem property taxes. Texas Tax Code §41.44(c-3) applies to the appellant's claims concerning the 2006 and 2007 tax years, because that section applies to an ad valorem tax protest filed on or after Jan. 1, 2008. The trial court should have granted the city's plea to the jurisdiction on the taxpayer's counterclaim, because an appeal taken pursuant to Chapter 42 of the Tax Code is the taxpayer's exclusive remedy. Under the plain language of §41.44(c-3), the 125-day deadline for filing the protest begins to run on the date that the property owner claims in its notice of protest that it first received notice of the taxes in question. The trial court's judgment is vacated and its third party petition against an appraisal district and review board are dismissed. The judgment is reversed and remanded for trial on the City of El Paso's delinquent tax suit. El Paso Court of Appeals, No. 08-12-00230-CV, 03-19-2014

Practice Areas: Taxation

5th Cir.

El Paso CGP Co., L.L.C. v. United States

A taxpayer appeals the district court's grant of summary judgment to the defendant, the Internal Revenue Service denying the taxpayer's tax refund claim. The variance doctine will not prevent federal court jurisdiction over a refund suit where the only variance arises from alleged IRS failures to follow proper procedures of which the taxpayer was unaware when those failures occurred. An assessment is unnecessary when the IRS, as here, already holds adequate money from the taxpayer to cover the deficiencies. Where the IRS and a taxpayer enter into a closing agreement, which sets out the liabilities and overpayments of the taxpayer, the IRS can comply with the mitigation provisions of the Tax Code by "assessing and collecting" any net deficiency from the years covered by the closing agreement, or by "refunding or crediting" any net overpayment for those years. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-20803, 03-18-2014

Practice Areas: Taxation

5th Cir.

United States v. Carrasco-Tercero

The appellant contends that his prior New Mexico conviction for alleged aggravated assault with a deadly weapon was not a crime of violence within the meaning of U.S. Sentencing Guidelines §2L1.2. The appellant failed to establish that New Mexico does in fact recognize a theory of aggravated assault based on the use of insulting language. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-51243, 03-13-2014

Practice Areas: Criminal Law

5th Cir.

Grimes v. BNSF Railway Co.

The appellant challenges a judgment giving collateral-estoppel effect, in his Federal Railway Safety Act suit, to a finding of fact made by a Public Law Board in the course of the appellant's pursuit of his rights under a collective bargaining agreement with a railway company. Because it was the railroad that conducted the investigation and hearing and terminated the appellant, and because the PLB only reviewed a closed record, the procedures were not adequate for collateral estoppel to apply. The district court's judgment is vacated and remanded for the district court to make its own determination as to whether there is a genuine issue of material fact for trial. 5th U.S. Circuit Court of Appeals, No. 13-60382, 03-18-2014

Practice Areas: Labor and Employment

5th Cir.

Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians

The appellant challenges the district court's refusal to enjoin a member of the Mississippi Band of Choctaw Indians, and other defendants, from adjudicating tort claims against the appellant in the Choctaw tribal court. Noncommercial relationships may give rise to tribal jurisdiction under the first Montana exeption. There is no requirement in Montana that the specific relationship with a nonmember implicate self-rule or intrude on the internal relations of the tribe. A challenge to a tribal court's jurisdiction is subject to waiver. The availability of punitive damages has no effect on the tribal court's jurisdiction. The district court's denial is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-60668, 03-14-2014

Practice Areas: Appellate Law - Civil

5th Cir.

BNSF Railway Co. v. United States

The district court granted summary judgment to a railway on its refund claims for taxes paid pursuant to the Railroad Retirement Tax Act. Non-Qualified Stock Options are properly included as "compensation" under the RRTA as interpreted by Treasury Regulation § 31.3231(e)-1. The § 31.3231(e)-1 definition of "compensation" is reasonable. Section 3231(e)(1)(iii) permits exclusion of payments to employees for traveling expenses and bona fide and reasonable expenses related to travel. The district court's judgment is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-10014, 03-13-2014

Practice Areas: Taxation

Tex. App. Dist. 1

Knife River Corporation-South v. Hinojosa

The defendant appeals judgment against it in this wrongful death and survivor suit. The defendant's resurfacing agreement with TxDOT to backfill edge drops incidental to its overlay work did not constitute an undertaking by the defendant to backfill a preexisting one-and-one-half foot drop off to a 3:1 gradient. TxDOT retained its duty to maintain the road's safety when it entered into the overlay contract with the defendant. Because Restatement (Second) of Torts §324A imposes a duty to perform without negligence only the task that the actor has undertaken to accomplish, the defendant owed no duty-as a matter of law-to rectify the drop off or to provide written notice regarding the defect. The trial court's judgment is reversed and rendered. Houston's 1st Court of Appeals, No. 01-12-00862-CV, 03-13-2014

Practice Areas: Torts

Tex. App. Dist. 1

Dibello v. State

The appellant challenges the trial court's admission of a videotaped interview with the complainant. The statement was generally consistent with the complainant's in-court testimony and thus could rebut a charge of recent fabrication. A prior consistent statement need not predate each alleged improper influence; it need only predate one alleged improper influence. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00235-CR, 03-13-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

South Texas College of Law v. KBR, Inc.

In this construction case, the trial court granted summary judgment based on the statute of repose. The suit involves a building completed 24 years before the suit was filed. The defendant, who managed and supervised the project, was a direct actor entitled to rely on the statute of repose. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00864-CV, 03-13-2014

Practice Areas: Contracts

Tex. App. Dist. 1

Oncor Electric Delivery Co., LLC v. Murillo

The appellee brought suit against the electricity provider at a site where he worked. The appellee suffered serious personal injuries from electrocution while he worked at the demolition site. The appellant performed an activity on the property-controlling the distribution and cessation of distribution of electricity to the site so that demolition activities and the removal of its own transformers could safely proceed-and it had a duty to use ordinary care in the performance of that activity so that its activity would not proximately cause a foreseeable injury to workers on the site. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-10-01123-CV, 03-18-2014

Practice Areas: Torts

Tex. App. Dist. 1

Capcor At Kirbymain, L.L.C. v. Moody National Kirby Houstons, L.L.C.

The appellant argues that an escrow agent breached its fiduciary duties by refusing to accept a cashier's check to close the appellant's purchase of a tract of unimproved land. Regardless of whether the evidence showed that the escrow agent rejected the check solely because of her underwriter's policies, the testimony of the agent and the owner of the title company would have permitted a reasonable jury to find that disclosure of policies on cashier's checks was immaterial to the transaction because their use would not be ordinarily contemplated in transactions of this kind and there had been no indication a party would attempt to use one until late in the afternoon on the day of closing. The contract affirmatively bestowed upon the seller the right to terminate if the buyer defaulted by failing to timely deliver good funds acceptable to the escrow agent. Whether or not the buyer's breach would otherwise be considered material is irrelevant. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00068-CV, 03-13-2014

Tex. App. Dist. 1

Gardner v. State

The appellant contends that the police obtained his confession in an audio recording during custodial interrogations, in violation of Texas Code of Criminal Procedure article 38.22. The appellant was interviewed twice in a patrol car while a search was conducted; he was not handcuffed and was told he was free to leave and could have an attorney present. Significantly, the officers left the home after executing the warrant and did not arrest the appellant until several weeks later, after they procured a warrant for his arrest. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, Nos. 01-13-00214-CR, 01-13-00215-CR, 01-13-00216-CR, 03-18-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

Gaertner v. Langhoff

The appellant challenged the plaintiff's certificate of merit and moved to dismiss in this suit alleging the failure to install safety devices on a historic property. The current statute - Texas Civil Practice and Remedies Code §150.002(a)(3) - requires only that the affiant be knowledgeable in the area of practice of the defendant. The appellant's arguments about the impact of the historical nature of the property on his duty and standard of care implicate issues to be resolved at a later stage. The trial court's order is affirmed. Houston's 1st Court of Appeals, No. 01-13-00555-CV, 03-18-2014

Practice Areas: Torts

Tex. App. Dist. 1

IQ Holdings, Inc. v. Villa D'Este Condominium Owner's Association, Inc.

An arbitrator issued a final award regarding the meaning of disputed terms in a settlement agreement and directed the parties to sign final settlement documents incorporating them. The appellants contend that the award an affront to their constitutional right to speak freely and fails to effect the parties' bargain with respect to expungement of a lis pendens. The arbitrator decided the matter submitted to her and therefore did not exceed her powers. The award may not be vacated based on the common-law doctrine of manifest disregard of the law. Under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, the award may be set aside or modified only in accordance with applicable Texas or federal law, neither of which permits vacatur, modification, or correction in this instance. The appellants' election to seek judicial review of the award before complying with it did not constitute a breach of the Rule 11 agreement. The judgment is affirmed as modified. Houston's 1st Court of Appeals, No. 01-11-00914-CV, 03-13-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 10

Ex parte Barnett

The appellant challenges the trial court's denial of his pretrial application for writ of habeas corpus in which he requested the trial court to declare Texas Penal Code §30.04(b)(2) unconstitutional. Without the actual charging instrument showing the statute under which the appellant is to be prosecuted, the challenge is not cognizable as a pretrial writ of habeas corpus. Even with the charging instrument, the challenge is not otherwise cognizable in a pretrial writ of habeas corpus because the appellant does not request an immediate release from custody. The appeal is dismissed. Waco Court of Appeals, No. 10-13-00339-CR, 03-13-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Zhu v. Lam

The trial court granted a no-evidence summary judgment against the appellants, who claimed that the home they purchased was substantially smaller than represented. Given the absence of evidence or authority that the real estate agent knew or should have known otherwise, the real estate agent did not breach his fiduciary duty by making the same representations to the buyers that had been made by the seller and by the listing agent. Although a property owner is considered qualified to testify to his property's value, the property owner still must provide the factual basis on which his opinion rests. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00368-CV, 03-18-2014

Tex. App. Dist. 2

Donovan v. State

The trial court revoked appellant's community supervision and adjudicated guilt. The appellant contends his due-process rights were violated by the imposition of sex-offender conditions after he was convicted of an alleged non-sex offense. Because the appellant did not object to the complained-of conditions by pursuing his motion to amend as a prerequisite to filing an application for writ of habeas corpus or by presenting written objections to the trial court at any point between the time the conditions were imposed and the adjudication hearing, the claims are forfeited. The trial court's judgment is affirmed. Fort Worth Court of Appeals, No. 02-11-00033-CR, 03-13-2014

Practice Areas: Criminal Law

Tex. App. Dist. 4

San Antonio Water System v. Overby

The appellees sued San Antonio Water System and other defendants for recurring flooding that allegedly damaged their property. The trial court denied SAWS' plea to the jurisdiction. Evidence of SAWS' knowledge that the grade of an alley could cause water flow onto the appellee's property is not evidence of intent, therefore there is no waiver of immunity by the takings clause. There is no nexus between the use of motor-driven equipment to maintain the alley and the damage alleged, therefore there is no Texas Tort Claims Act waiver of immunity. The trial court's judgment is reversed and rendered. San Antonio Court of Appeals, No. 04-13-00364-CV, 03-19-2014

Tex. App. Dist. 4

City of San Antonio Board of Adjustment v. Reilly

The City of San Antonio Board of Adjustment appeals from a judgment reversing its decision to uphold the denial of a request to demolish a house in a historic district. A board does not abuse its discretion if it bases its decision on conflicting evidence and some evidence supports its decision. The trial court's judgment is reversed and rendered. San Antonio Court of Appeals, No. 04-13-00221-CV, 03-19-2014

Tex. App. Dist. 3

Titan Transportation, LP v. Combs

The trial court rendered judgment that the appellant was not entitled to a revenue exclusion or a cost-of-goods-sold deduction for the relevant tax year. The delivery of aggregate to construction sites provides has a reasonable nexus with the actual construction of improvements on real property, which satisfies the statutory requirement for the services in the revenue exclusion. The state's arguments that use of the accrual method of accounting is expressly or implicitly prohibited or that the deduction of reimbursable expenses negates the "flow-through" nature of the funds are rejected. The trial court's judgment is reversed and remanded. San Antonio Court of Appeals, No. 03-13-00034-CV, 03-14-2014

Practice Areas: Taxation

Tex. App. Dist. 2

Teleresource Corporation v. Accor North America, Inc.

The appellant argues that the trial court erred by granting the appellee summary judgment on the appellant's anticipatory repudiation claim. By electing to file suit after the time for performance of the agreement, the appellant chose to ignore the appellee's alleged anticipatory repudiation. A party must have tendered a written instruction on the measure of damages in substantially correct form to later complain on appeal about a damages question that omitted an instruction on the measure of damages. The appellant's attorney's statement that the fee amounts were "commensurate on both sides" was not a judicial admission; to the extent it was a quasi-admission, it was conclusory and devoid of any evidentiary substance upon which the jury could have based its fees award. The judgment is affirmed as modified. Fort Worth Court of Appeals, No. 02-12-00475-CV, 03-13-2014

Tex. App. Dist. 4

Teal Trading and Development, LP v. Champee Springs Ranches Property Owners Association

The appellant challenges the trial court's declaratory judgment in favor of a property owners' association. The trial court's judgment declared that the appellant was estopped by deed to challenge the validity and enforceability of a property restriction within its chain of title. Because none of the deeds within the chain of title from the previous owner to the appellant acknowledge the validity and enforceability of the non-access restriction, the owners' association did not show as a matter of law that the appellant is estopped by deed from challenging the non-access restriction's validity and enforceability. The appellant failed to show its entitlement to summary judgment that the non-access restriction was an invalid easement, that members of the owners' association had waived the restriction's enforcement, or that the restriction was void as against public policy. The trial court's judgment is reversed and remanded. San Antonio Court of Appeals, No. 04-12-00623-CV, 03-19-2014

Tex. App. Dist. 4

Cedar Senior Services, L.P. v. Nevarez

A healthcare provider appeals the trial court's denial of its motion to dismiss the claims against it because the expert report did not mention the healthcare provider by name. Although the appellees would be required to prove ownership of the facility in order to prevail on their claims against the appellant, that proof is not a required element of an expert report. The trial court's order is affirmed. San Antonio Court of Appeals, No. 04-13-00790-CV, 03-19-2014

Practice Areas: Health Law

Tex. App. Dist. 4

Jacobs v. Huser Construction, Inc.

An independent contractor's employee sued the general contractor for its alleged negligence in providing a defective ladder and allegedly failing to warn him of its danger. The trial court granted summary judgment for the general contractor. The general contractor had no duty of care to the plaintiff under actual control or by contract because it did not control the means, methods, or details of his work. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-13-00211-CV, 03-19-2014

Practice Areas: Torts

Tex. App. Dist. 5

Dole v. LSREF2 APEX 2, LLC

Two nonresident defendants challenge a default judgment. The date of service is discernible from the record and a date reference that appears to be a typographical error does not render the return fatally defective. A nonresident's refusal or failure to claim certified mail from the Secretary of State, as reflected by the notation "unclaimed," does not deprive the court of jurisdiction obtained under the long arm statute. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-01683-CV, 03-13-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 6

Conway v. Shelby

The appellant challenges a temporary injunction enjoining him from entering onto a farm in DeKalb in which the opposing party has partial ownership and/or removing property therefrom, among other things. The procedural requirements of Texas Rule of Civil Procedure 683 are mandatory and must be strictly followed. The injunctive order did not set the case for trial on the merits. The trial court's order is reversed, the injunction is dissolved, and the case is remanded. Texarkana Court of Appeals, No. 06-13-00091-CV, 03-13-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 5

Reese v. General Assembly of Faith Cumberland Presbyterian Church in America

A church pastor brought suit against a church alleging breach of contract and intentional infliction of emotional distress. The trial court granted the church's plea to the jurisdiction. Hosanna-Tabor held that the First Amendment precludes application of the employment discrimination laws to claims concerning the employment relationship between a religious institution and its ministers. That preclusion extends to these claims. The trial court's order is affirmed. Dallas Court of Appeals, No. 05-12-01303-CV, 03-14-2014

Practice Areas: Constitutional Law

Tex. App. Dist. 5

Ellis v. Renaissance on Turtle Creek Condominium Association, Inc.

The appellant challenges the trial court's summary judgment against him on a counterclaim by the appellee, a condomium association, pertaining to foreclosure of a lien on a condominium unit. Arguments raised in a summary judgment response do not constitute evidence and cannot raise a fact issue. An attorney's affidavit in support of fees that included paralegal costs was adequately supported by a list of specific tasks performed by the attorneys and paralegals, and, furthermore, the affidavit on its face, does not show that any of the "reasonable and necessary" fees described by him pertain to work performed by legal assistants. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-01435-CV, 03-18-2014

Tex. App. Dist. 5

Greystar, LLC v. Adams

The appellant argues it was not properly served. Because the record shows the person who accepted service was not the entity stated on the citation, the service of process is fatally defective. The trial court's judgment is reversed and remanded. Dallas Court of Appeals, No. 05-13-00162-CV, 03-18-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 7

In re Crawford & Co.

The petitioners request a writ of mandamus ordering the trial judge to dismiss the plaintiff's claims because of the alleged failure to exhaust administrative remedies. The plaintiffs certified that they had exhausted their administrative remedies available before the Division of Worker's Compensation; the resolution of the question of exhaustion is not within the province of a mandamus proceeding. The plaintiff's malicious prosecution claim, though it may have some attenuated relationship to a workers' compensation claim, is not subsumed into the worker's compensation administrative scheme. Therefore, at least one cause of action continues to exist. The petition for writ of mandamus is denied. Amarillo Court of Appeals, No. 07-14-00013-CV, 03-17-2014

Practice Areas: Labor and Employment

Tex. App. Dist. 8

In re J.T.M.

A juvenile appeals a pretrial suppression ruling in this case alleging possession of less than two ounces of marijuana. It was error to admit a statement made after the juvenile's formal arrest but before he was admonished. Constitutional error in juvenile cases should be analyzed for harm under Texas Rule of Appellate Procedure 44.2(a)'s standard because it is more protective of the juvenile's rights than Rule 44.1(a) as it examines the impact of the error on the integrity of the process leading to the juvenile's plea of true. The error was harmless because the juvenile's admission that he had additional marijuana in his vehicle did not contribute to the state's leverage in the plea bargaining process. The juvenile court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00102-CV, 03-12-2014

Practice Areas: Criminal Law

Tex. App. Dist. 6

In re Freestone Underground Storage, Inc.

The relator petitions for writ of mandamus ordering the trial judge to transfer this suit to a district court having jurisdiction over Freestone County. The suit concerns a lease agreement that, among other things, granted the lessee the right to use a saltwater disposal well and underground salt caverns. If the lease in this case is a mineral lease, the dispute concerns whether the fee simple reverted to the lessor and venue in Freestone County is mandatory under Texas Civil Practice and Remedies Code §15.011. If this lease is not a mineral lease, this is a dispute over the terms of a lease between a landlord and a tenant, and venue was mandatory in Freestone County as prescribed in §15.0115. The writ of mandamus is conditionally granted. Texarkana Court of Appeals, No. 06-14-00012-CV, 03-14-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 7

Ludwig v. State

The appellant challenges his conviction and sentence for alleged aggravated assault with a deadly weapon. The appellant asserts that the state, through an investigator, instructed a witness not to mention that she heard laughing during a telephone conversation. The appellant had consistent communication with the witness from the time of the incident through the trial. The state did not know whether the laughing on the line was male or female or whether it existed at all. Trial counsel had the opportunity to visit with the witness before trial. The appellant failed to demonstrate a Brady violation. The trial court's judgment is affirmed. Amarillo Court of Appeals, No. 07-13-00049-CR, 03-18-2014

Practice Areas: Criminal Law

Tex. App. Dist. 8

In re Group 1 Realty, Inc.

The relator seeks a writ of mandamus directing the respondent to reverse his order denying a motion to transfer venue. The issue concerns two mandatory venue provisions found in a purchase agreement and a related sublease. The clause contained in the purchase agreement is valid and enforceable under Texas Civil Practice and Remedies Code §15.020. The essence of the dispute is whether the relators are entitled to reduce the purchase price of the property by the cost of the improvements it made. Although the requested declarations by the real party in interest concerns both the sublease and the purchase agreement, the majority of those concerning the sublease are clearly designed to establish the real party's defense against the enforcement of the purchase agreement. The object of a proposed declaration is the purchase agreement. The writ of mandamus is conditionally granted. El Paso Court of Appeals, No. 08-13-00192-CV, 03-12-2014

Practice Areas: Appellate Law - Civil

Tex.Crim.App.

Ex parte Maxwell, AP-76

The applicant claims that his mandatory sentence of life imprisonment without the possibility of parole, for a crime he committed as a juvenile, violates the Eighth and Fourteenth Amendments to the United States Constitution under Miller v. Alabama. In that case, the U.S. Supreme Court held that a mandatory "life without parole" sentence for a defendant who was under the age of 18 at the time of his crime violates the Eighth Amendment's prohibition on cruel and unusual punishment. The Miller court announced a new substantive rule that applies retroactively. Relief is granted, and the case is remanded for further sentencing proceedings. Court of Criminal Appeals, No. AP-76, 964, 03-12-2014

Practice Areas: Criminal Law

5th Cir.

Naquin v. Elevating Boats, L.L.C.

The plaintiff, a ship repairman, was severely injured at a shipyard. A jury awarded Jones Act damages. The evidence supports the finding that the plaintiff is a seaman; the plaintiff contributes to the function of a discrete fleet of vessels and has a connection with the fleet that is substantial in terms of both duration and nature. The evidence that the defendant was responsible for a defective weld, though circumstantial, is sufficient to support the finding of negligence even though the plaintiff did not plead res ipsa loquitor. A new trial on damages is required, because the court erroneously admitted evidence of an injury to a third party to support the plaintiff's claim for emotional damages. The judgment as to liability is affirmed, the judgment as to damages is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 12-31258, 03-10-2014

Practice Areas: Admiralty

5th Cir.

NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C.

The district court determined that a Texas law firm's speech fell within the commercial speech exemption to the Texas Citizen's Participation Act. The firm advertised to solicit former patients of the appellee, a national chain of dental clinics. The district court's order denying TCPA relief is conclusive for purposes of the collateral order doctrine. The denial of a TCPA motion to dismiss satisfies the collateral order doctrine's separability requirement and would be effectively unreviewable on appeal from a final judgment. The Texas Supreme Court would most likely hold that the firm's ads and other client solicitation are exempted from the TCPA's protection because the firm's speech arose from the sale of services where the intended audience was an actual or potential customer. The district court's order is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-41243, 03-11-2014

Practice Areas: Torts

Tex.Crim.App.

In re Bonilla, WR-76

Relying on Texas Government Code §552.028, the district court declined to provide any information to the relator about the amount it would cost to purchase a trial and appellate transcript. When the information sought by an imprisoned individual relates only to the amount that it would cost to obtain trial and appellate transcripts for use in preparing an application for a writ of habeas corpus, application of §552.028 to deny the prisoner access to that information unconstitutionally infringes on his federal constitutional right to have access to the courts. However, while the case was under abatement, the district clerk provided the information to the relator, rendering the request for relief moot. Court of Criminal Appeals, No. WR-76, 736-02, 03-12-2014

Practice Areas: Criminal Law

Tex.Crim.App.

Ex parte Cockrell, WR-78

In this application for a post-conviction writ of habeas corpus, applicant contends that his trial counsel rendered constitutionally ineffective assistance by failing to seek accommodations for his deafness. By failing to assert applicant's rights to an interpreter to ensure that he could understand the testifying witnesses and participate in his own defense during a substantial portion of the trial, the result of this proceeding is unreliable because of a breakdown in the adversarial process that our system counts on to produce just results. The applicant has demonstrated that counsel's performance was constitutionally deficient and that he was prejudiced as a result of counsel's errors. Relief is granted and the case is remanded for a new trial. Court of Criminal Appeals, No. WR-78, 986-01, 03-12-2014

Practice Areas: Criminal Law

5th Cir.

Harris v. Serpas

The district court granted summary judgment for police officers in this suit alleging excessive force. Police were called by a woman who suspected her husband had taken an overdose. During the encounter, the police shot the husband. Any of the officers' actions leading up to the shooting are not relevant for the purposes of an excessive force inquiry. When looking at the moment of the threat that resulted in the officer's use of deadly force, it is clear from a taser video that the man was standing up out of bed and had raised a knife above his head at the time the shots were fired. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-30337, 03-12-2014

Practice Areas: Civil Rights

5th Cir.

Coleman v. Sweetin

The plaintiff, an inmate, appeals the dismissal of his suit alleging damages as a result of an allegedly unsafe shower floor. The existence of slippery conditions in any populous environment represents at most ordinary negligence rather than a condition so threatening as to implicate constitutional standards. The appellant's allegations of extreme pain are sufficient to raise the possibility of a nurse practitioner's deliberate indifference to the inmate's serious medical needs. The lower court's dismissal of the suit against a party because the appellant failed to provide a current address to effectuate service was not proper, because the record is devoid of delay or contumacious conduct. The judgment is affirmed in part, and reversed and remanded in part. 5th U.S. Circuit Court of Appeals, No. 12-40012, 03-12-2014

Practice Areas: Criminal Law

5th Cir.

United States v. Foulks

The appellant pleaded guilty to alleged conspiracy to distribute and to possess with the intent to distribute methamphetamine. Distribution (or possession with intent to distribute) of imported methamphetamine, even without more, may subject a defendant to the U.S. Sentencing Guidelines §2D1.1(b)(5) enhancement. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-10399, 03-11-2014

Practice Areas: Criminal Law

5th Cir.

Taylor v. Bailey Tool & Manufacturing Co.

The appellant appeals the district court's order dismissing his claims as barred by the applicable statutes of limitations. Where a claim filed in state court was barred at the time of its filing, Federal Rule of Civil Procedure 15(c) does not revive the case once the case is removed. The district court's order is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-10715, 03-10-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 1

Certain Underwriters At Lloyd's of London Subscribing to Policy Number FINFR0901509 v. Cardtronics, Inc.

Insurance underwriters appeal the trial court's determination that the insured suffered a covered loss under the policy that had to be paid without the insured first exhausting its claims against responsible third parties. The policy does not explicitly require the insured to exhaust its remedies against third parties before bringing suit against the underwriters. On the contrary, it requires the insured to bring only one suit: suit against the underwriters must be "brought within 2 years from the date [the insured] discover[ed] the loss." The policy is silent as to a deadline for when the insured must demonstrate what it "cannot recover" before payment from the underwriters is triggered. "Cannot recover" applies at the time of the proof of loss, which gives meaning to all provisions of the policy and therefore is not unreasonable. The grant of partial summary judgment is affirmed and the case is remanded. Houston's 1st Court of Appeals, No. 01-13-00165-CV, 03-11-2014

Practice Areas: Insurance Law

Tex. App. Dist. 1

Perez v. State

The appellant argues, inter alia, that the warrantless taking of a blood sample violated the Fourth Amendment. The copy of appellant's criminal history from the dispatcher provided the officer with reliable information from a credible source that appellant had at least two previous alleged DWI convictions. This is evidence of implied consent. The appellant waived his argument that Texas Transportation Code §724.012(b) is unconstitutional, because his only argument in the trial court was that the taking of his blood violated his Fourth Amendment rights by requiring him to submit to a warrantless blood test without consent. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-01001-CR, 03-11-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

Goody v. State

This is an en banc rehearing. The appellant challenges the trial court's denial of his motion for new hearing, contending that he received ineffective assistance of counsel. The appellant's trial counsel had been indicted for alleged barratry. The charge of barratry does not share a common factual basis with the appellant's alleged crimes such that a vigorous defense would expose the trial counsel's alleged misdeeds. The pending barratry charge did not render the trial counsel incompetent as a matter of law. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, Nos. 01-12-01138-CR, 01-12-01139-CR, 01-12-01140-CR, 01-12-01141-CR, 03-11-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

In re Miller

Relator filed a writ of prohibition asking that the trial court be enjoined from ruling upon a request to cancel a lis pendens filed on a tract of commercial property. This proceeding is ancillary to a common-law marriage determination. The writ of prohibition is available to protect the subject matter of an appeal or to prohibit unlawful interference with enforcement of an appellate court's judgment. Prohibition is not appropriate relief when other remedies, like an appeal, are available and adequate. The petition is denied. Houston's 1st Court of Appeals, No. 01-13-00973-CV, 03-11-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 4

Pace v. Whatley

After closure of the appellant's bankruptcy case, plaintiffs continued a state court action against the appellant on a promissory note. Filing a claim seeking to have the bankruptcy court refuse to discharge debts under the Bankruptcy Code is not the same as a claim seeking to collect on an outstanding promissory note. The promissory note claim was not precluded by the bankruptcy court's inclusion of a "Mother Hubbard" clause in its order denying the discharge of the appellant's debts. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-13-00136-CV, 03-12-2014

Practice Areas: Bankruptcy

Tex. App. Dist. 4

Vega v. Compass Bank

The trial court rendered summary judgment in favor of a bank in this case involving the deposit of a check that was allegedly forged. The bank established its breach of contract claim as a matter of law. Under the account agreement, the bank was entitled to provide only provisional credit for a deposit and the bank was entitled to seek repayment of any overdraft and associated charges from any account owner. The trial court erred in awarding attorney's fees. The nonmovant may create a fact issue by filing an affidavit contesting the reasonableness of the movant's attorney's fees. The trial court's judgment is affirmed, but the award of attorney's fees and costs is reversed and remanded. San Antonio Court of Appeals, No. 04-13-00383-CV, 03-12-2014

Practice Areas: Banking and Financial Institutions

Tex. App. Dist. 4

In re D.E.

The appellant challenges the trial court's finding that termination was in his daughter's best interest. The Holley factors do not constitute an exhaustive list, and evidence is not required on all of the factors to support a finding terminating a parent's rights. The evidence here includes the appellant's alleged failure to take mandated drug tests and his alleged inability to to handle the child's destructive behaviors and mental health issues. The trial court's termination order is affirmed. San Antonio Court of Appeals, No. 04-13-00794-CV, 03-12-2014

Practice Areas: Family Law

Tex. App. Dist. 4

Riddick v. Marmolejo

The appellant appeals an order dismissing a counterclaim he filed in the probate court. Although dismissal orders based on a lack of standing have been found to be final and appealable, in those cases the probate court also disposed of a phase of the proceedings. The test is not whether all issues and parties raised in the counterclaim have been disposed of; instead, the test is whether the issues and parties raised in this proceeding have been disposed of. The appeal is dismissed for lack of jurisdiction. San Antonio Court of Appeals, No. 04-13-00157-CV, 03-12-2014

Practice Areas: Trusts and Estates

Tex. App. Dist. 4

Ramirez v. State

A jury convicted the appellant of two counts of alleged possession of a controlled substance with intent to deliver. The appellant lacks standing to challenge the warrantless seizure of narcotics from a grassy area; a claim of privacy with regard to an open grassy area behind a convenience store is not objectively reasonable. That the assessment of attorney's fees were listed as "TBD" does not make the issue not ripe. Because there are insufficient facts to rebut the appellant's presumed indigency, the trial court's judgment is modified and affirmed. San Antonio Court of Appeals, Nos. 04-13-00384-CR, 04-13-00387-CR, 03-12-2014

Practice Areas: Criminal Law

5th Cir.

In re Deepwater Horizon

This case concerns the Deepwater Horizon disaster. The district court held that a settlement agreement did not require those submitting claims for certain business losses to provide evidence of causation. The settlement agreement does not require a claimant to submit evidence that the claim arose as a result of the oil spill. Each claimant does attest, though, under penalty of perjury, that the claim in fact was due to the Deepwater Horizon disaster. The district court's ruling is affirmed, an injunction prohibiting payment of the relevant claims is vacated. 5th U.S. Circuit Court of Appeals, Nos. 13-30315, 13-30329, 13-31220, 13-31316, 03-03-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 7

Rodriguez v. Sandhill Cattle Co., L.P.

The plaintiff appeals the trial court's grant of an adverse directed verdict in this case arising from a collision with cattle on a roadway. The cattle escaped from a pasture surrounded by a single strand of hot wire that had broken. To "permit" in Texas Agricultural Code §143.074 includes conduct undertaken by one who failed to act reasonably under the circumstances. Nothing in the record supports an inference that the defendant permitted its cattle to run at large. The trial court's judgment is affirmed. Amarillo Court of Appeals, No. 07-13-00043-CV, 03-10-2014

5th Cir.

Sanchez v. R. G. L.

Three children who are natives of Mexico, through a next friend, appeal the district court's finding under the Hague Convention on the Civil Aspects of International Child Abduction that they were being wrongfully retained in the United States and should be returned to their mother. An asylum finding that the children have a well-founded fear of persecution does not substitute for or control a finding under Article 13(b) of the Convention about whether return "would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation." Now that the children have been granted asylum, all available evidence from the asylum proceedings should be considered by the district court before determining whether to enforce the return order. The district court's order is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 12-50783, 02-21-2014

Practice Areas: Family Law

5th Cir.

Santos-Sanchez v. Holder

The Board of Immigration Appeals determined that the petitioner's conviction for allegedly aiding and abetting improper entry under 8 U.S.C. §1325(a) established his removability pursuant to 8 U.S.C. §1227(a)(1)(E)(i). After the BIA's decision in this case, the BIA concluded that conviction under §1325(a) necessarily establishes an alien's removability. But here the BIA actually relied on the documents associated with the petitioner's §1325(a) conviction, including the criminal complaint and judgment of conviction, to find that the petitioner's particular conduct established his removability. The petition for review is denied. 5th U.S. Circuit Court of Appeals, No. 08-60469, 03-07-2014

Practice Areas: Immigration Law

5th Cir.

Chenevert v. Travelers Indemnity Co.

An insurance company appeals the district court's denial of a motion to intervene finding that the insurer has no right of subrogation to recover its payments from an employee's settlement of a Jones Act claim. An insurer acquires a subrogation lien on the employee's Jones Act recovery for the amount of Longshore and Harbor Workers' Compensation Act benefits paid. The district court's denial is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-60119, 03-07-2014

Practice Areas: Admiralty

Tex. App. Dist. 10

Ferguson v. State

The appellant was charged by indictment with continuous sexual abuse of a child and sentenced to life imprisonment. A requested modification of the judgment to reflect a different time period during which the alleged abuse occurred would not result in a reversal. Accordingly, abatement is not necessary because it would amount to ordering the trial court to do a useless task. The trial court's judgment is affirmed as modified to reflect that the age of the victim at the time of the offense was 12 to 13 years old. Waco Court of Appeals, No. 10-13-00173-CR, 03-06-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

Tillman v. State

A jury found the appellant guilty of alleged capital murder. A hammer allegedly used in the murder is a deadly weapon because it was used in a manner capable of causing death or serious bodily injury, but a hammer is not manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury. The state cannot rely on the use of a deadly weapon in this circumstance to establish an inference of intent to commit murder. The cumulative force of the evidence supports an inference by the jury that appellant intended to kill. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00398-CR, 03-06-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

Lewis v. State

The appellant argues the trial court abused its discretion by failing to hold a hearing on his claim that attorney's fees the trial court ordered him to pay could not be assessed as costs because the basis for the fees had allegedly been falsified. The trial court's order for appellant's attorney's fees to be paid from the money in the court registry was issued during the pendency of the charges against him. Those charges were dismissed and appellant was not convicted of those charges. The fees are not court costs; appellant cannot use Texas Code of Criminal Procedure article 103.008 to challenge them one year after the final disposition of his case. Any challenge to the order should have been raised on direct appeal from the final judgment. The trial court's order is affirmed. Houston's 1st Court of Appeals, No. 01-13-00458-CR, 03-06-2014

Practice Areas: Criminal Law

5th Cir.

In re Frost

A Texas debtor challenges the district court's determination that proceeds from the post-certification sale of an exempted homestead revert to the bankruptcy estate if not reinvested within six months, arguing that once the homestead is permanently exempted from the estate, any proceeds from its sale are also exempt. The sale of the homestead voided the homestead exemption and the failure to reinvest the proceeds within six months voided the proceeds exemption, regardless of whether the sale occurred pre- or post-petition. The district court's decision is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-50811, 03-05-2014

Practice Areas: Bankruptcy

Tex. App. Dist. 12

LG Electronics, USA Inc. v. Grigg

A TV manufacturer and a rental company appeal the denial of their motions for partial summary judgment in this suit alleging that the plaintiffs' father died from injuries after his rented television caught fire. An order terminating the parent-child relationship divests the child of all legal rights with respect to the parent except the right to inherit from him. The appellees do not have standing to sue. The trial court's order is reversed and remanded. Tyler Court of Appeals, No. 12-13-00302-CV, 02-28-2014

Practice Areas: Torts

Tex. App. Dist. 14

Musgrove v. State

The appellant challenges his felony convictions for two counts of assault on a public servant and one count of attempted escape. The appellant complains of limited access to his legal materials. Appellant was assisted by standby counsel and failed to demonstrate an actual injury. The appellant's inability to shower and shave did not adversely affect his appearance before the jury to an extent that would deprive him of a fair trial. The trial court did not abuse its discretion in preventing appellant, but not the state, from approaching witnesses during trial. The trial court erred in rendering judgment against appellant for attempted escape as a third-degree felony; his sentence for attempted escape was improperly enhanced by the same prior conviction that was used as an essential element of the charged offense. The trial court's judgment is affirmed as modified with regard to appellant's assault convictions. As to the attempted escape conviction, the judgment is reversed and remanded for a new punishment trial. Houston's 14th Court of Appeals, No. 14-13-00039-CR, 03-04-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Salinas v. State

In this substitute majority opinion, the court of appeals considers the appellant's challenge to his conviction for injury to an elderly person. The appellant contends that court costs assessed under Texas Local Government Code §133.102(a)(1) are unconstitutional because the statute requires the judicial branch to perform an executive function by collecting a tax. Because the admittedly valid uses are severable and are not foreclosed by other assertedly invalid uses to which the challenged court cost is put, the appellant has not established that §133.102(a)(1)'s $133 court cost always operates unconstitutionally as a tax or that it must be deleted in its entirety from the trial court's judgment. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00378-CR, 03-06-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Kennebrew v. Harris

A withdrawing member of a limited liability company sued for the value of his membership interest and to recover funds he advanced on the company's behalf. After a nonjury trial, the trial court rescinded the parties' written agreement and ordered the withdrawing member's capital contribution returned, but determined that the failure to repay the funds advanced to the company breached an oral loan agreement. There is no evidence of an oral loan agreement. Because rescission is a remedy, it is available only if the other party to the contract has committed some wrong; there were no express factual findings in the company's favor. The withdrawing member's alleged failure to register under the Private Security Act would not render the management agreement unenforceable. The trial court's judgment is affirmed as modified. Houston's 14th Court of Appeals, No. 14-12-01015-CV, 14-12-01044-CV, 03-04-2014

Tex. App. Dist. 4

Linares v. State

The appellant challenges his conviction for alleged second-degree aggravated assault with a deadly weapon and alleged first degree aggravated kidnapping. The state's argument responding to defense counsel's argument that the state was threatening the alleged victim to testify and that the alleged victim was lying regarding the alleged events was not improper. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00855-CR, 03-05-2014

Practice Areas: Criminal Law

Tex. App. Dist. 3

Carter v. Campbell

The executor of an estate appeals the order of the trial court requiring that she file an account of the estate and permitting any heir to request a hearing on distribution of the estate. The decedent's daughters signed an agreement that calls for the estate to be divided among them as equally as possible. The mere existence of a family settlement agreement does not automatically take an estate entirely outside of probate court jurisdiction. The agreement did not strip the probate system of jurisdiction or absolve the appellant of her duties as independent executor of the estate. The trial court's order is affirmed. Austin Court of Appeals, No. 03-11-00711-CV, 03-06-2014

Practice Areas: Trusts and Estates

Tex. App. Dist. 2

Foundation Assessment, Inc. v. O'Connor

The trial court denied the appellant's motion to dismiss, filed 22 months after the start of litigation, pursuant to Texas Civil Practice and Remedies Code §150.002 because the plaintiff did not file a certificate of merit along with her original petition. Although the Legislature has imposed deadlines on some statutory dismissal rights, it did not provide a deadline for filing a motion to dismiss under §150.002. The trial court's order is reversed and remanded. Fort Worth Court of Appeals, No. 02-13-00166-CV, 03-06-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 2

Leone v. State

The appellant challenges his conviction for harassment by a person in a correctional facility. The indictment on its face stated it was returned by a grand jury outside of its term. The trial court granted the state's motion to amend the indictment and denied a motion to set aside the indictment. To confer jurisdiction on a trial court, an indictment must charge: 1. a person and 2. the commission of an offense. To challenge defects of form, some prejudice must be shown. The appellant does not attempt to show that his substantial rights were affected by the defect of form in the indictment. The trial court's judgment is affirmed. Fort Worth Court of Appeals, No. 02-12-00102-CR, 03-06-2014

Practice Areas: Criminal Law

Tex. App. Dist. 4

Zambrano v. State

The appellant challenges his conviction for alleged second-degree aggravated assault with a deadly weapon and alleged first degree aggravated kidnapping. The state provided notice of an enhancement allegation before the start of the guilt-innocence phase of the trial and, although protests were made for timeliness or surprise, no suggestion was made that a continuance was required for discovery or preparation of a defense to the enhancement. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00853-CR, 03-05-2014

Practice Areas: Criminal Law

Tex. App. Dist. 4

Chesapeake Exploration, L.L.C. v. Hyder

This appeal arises out of a dispute involving the construction of the royalty and overriding royalty clauses in an oil and gas lease between the appellant energy companies and the appellees royalty interest holders. An interpretation of the lease that excludes post-production costs and expenses from the wellhead to the point of delivery, but includes post-production costs and expenses from the point of delivery to the point of sale, is contrary to the plain reading of the royalty clause. While an overriding royalty is normally subject to post-production costs, Texas law allows the parties to modify this default rule; appellees are entitled to an overriding royalty free of all production and post-production costs, subject only to their portion of production taxes. The trial court correctly determined appellees are not entitled to recover on their counterclaim for lost and unaccounted for gas. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-12-00769-CV, 03-05-2014

Practice Areas: Energy and Natural Resources

Tex. App. Dist. 4

Martinez v. State

The appellant was arrested for his alleged second driving while intoxicated offense. The appellant pleaded guilty pursuant to an agreement after having spent more than 72 continuous hours in jail. For satisfaction of the 72-hour requirement in Texas Code of Criminal Procedure Article 42.12 §13(a)(1), confinement imposed as a condition of appellant's community supervision is not a "sentence" within the meaning of article 42.03. Therefore, appellant is not entitled a credit against his community supervision confinement. The trial court's judgment is affirmed. San Antonio Court of Appeals, No. 04-13-00442-CR, 03-05-2014

Practice Areas: Criminal Law

Tex. App. Dist. 5

Senior Care Resources, Inc. v. OAC Senior Living, LLC

The appellant sued the appellees alleging libel, business disparagement, and declaratory relief based on statements appellees allegedly made in communications to the Texas Department of Aging and Disability Services as part of appellees' acquisition of Medicaid beds in Rockwall County. DADS's determination of whether to grant or deny a community needs waiver is a quasi-judicial proceeding from which it follows that any communications made during such a proceeding are absolutely privileged or immune from suit. The trial court lacked jurisdiction to review the declaratory relief claim; the Administrative Procedure Act applies, and under its conferred authority, DADS is the agency that gets to decide whether a waiver is void because it was allegedly based on false information. The trial court's judgment is affirmed in part and vacated in part. Dallas Court of Appeals, No. 05-12-00495-CV, 03-05-2014

Tex. App. Dist. 6

Eldred v. State

The appellant challenges his conviction for alleged continuous sexual abuse of a child under 14 years of age. The outcry statute applies when the offense is committed while the victim is younger than the specified statutory age and the victim makes the outcry before her 18th birthday. Testimony by an expert in response to a hypothetical was relevant, given that the hypothetical arguably matched the facts of the case. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00128-CR, 03-05-2014

Practice Areas: Criminal Law

Tex. App. Dist. 5

Gator Apple, LLC v. Apple Texas Restaurants, Inc.

The appellant challenges several rulings by the trial court in this case involving a franchise agreement. A dispute developed after one franchisee hired employees within 6 months of their termination from another franchisee without obtaining a letter of release. The trial court did not err by determining that Kansas law applied to the breach of contract claim and to a liquidated damages provision in the franchise agreement setting damages at three times an employee's annual salary. The appellant failed to meet its burden of establishing the liquidated damages provision in section 22 was a penalty. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-01369-CV, 03-05-2014

Practice Areas: Contracts

Tex. App. Dist. 5

Humitech Development Corporation v. Perlman

The appellant challenges the trial court's confirmation of an arbitration award. The appellant's counsel challenges the trial court's sanction against him. Pettus does not stand for the proposition that a trial court must vacate an arbitration award anytime an arbitrator violates a procedural rule of the arbitration body. Statements made by the trial judge before she took the bench in favor of arbitration would not give rise to a reasonable doubt concerning the trial judge's impartiality. The sanction imposed was an abuse of discretion; that the legal contentions may be unwarranted based on the alleged facts of the case is not a violation of Texas Civil Practice & Remedies Code §10.001(3). The arbitration award is affirmed, the order imposing sanctions is reversed and remanded. Dallas Court of Appeals, No. 05-12-00857-CV, 02-27-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

Tex. App. Dist. 6

Abbott v. City of Paris

The appellant claims that the trial court erred by granting the city's plea to the jurisdiction in this suit regarding the appellant's attempt to expand his mobile home park. The developed portion of his property was permitted for a nonconforming use because it was in existence at the time the property was annexed by the city. The claim that a zoning change would not be granted for the undeveloped portion is pure speculation. Because the appellant has not obtained a final decision through use of administrative procedures, his takings claim is not ripe. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00092-CV, 03-07-2014

5th Cir.

Metroplexcore, L.L.C. v. Parsons Transportation, Inc.

The appellant, an environmental engineering firm, sued a general contractor claiming it was entitled to a share of the profits from a transit system project. The appellant was a member of the group created by the contractor for the bid. The contractor lost that bid, but several years later took over the project with a new set of subcontractors. There is enough evidence to meet the requisites for promissory estoppel: a promise, foreseeability of reliance thereon by the promisor, and substantial reliance by the promisee to his detriment. The summary judgment is affirmed in part, and reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 12-20466, 02-28-2014

Practice Areas: Contracts

5th Cir.

In re West Feliciana Acquisition, L.L.C.

The appellant challenges the district court's grant of summary judgment on its loan loss claims against its title insurance policy provider and related entities. Indemnity is only for actual loss caused by a title defect. When there are multiple causes of loss, the proper inquiry is whether the complained-of conduct was a substantial factor in bringing about the loss. The appellant did not create a genuine issue of material fact as to the essential steps of causation. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-30675, 02-27-2014

Practice Areas: Insurance Law

Tx. Sup. Ct.

In re Fisher

The trial court denied motions and pleas to the jurisdiction related to a forum selection clause in acquisition documents. The court of appeals denied mandamus relief. A common sense examination of the claims shows that Texas Civil Practice and Remedies Code §15.020 applies. Where the phrase "non-exclusive jurisdiction" is in a forum selection clause that also includes language reflecting intent that the venue choice is mandatory, the non-exclusive language does not necessarily control over the mandatory language. Mandamus relief is conditionally granted. Texas Supreme Court, No. 12-0163, 02-28-2014

Practice Areas: Appellate Law - Civil

5th Cir.

Brumfield v. Cain

The district court granted habeas relief for the petitioner, finding that the petitioner was mentally retarded and ineligible for execution. The state court was not required to provide the petitioner with funds to develop his claims. The state court's judgment was entitled to deference under the Antiterrorism and Effective Death Penalty Act. The district court's grant of habeas relief is reversed. 5th U.S. Circuit Court of Appeals, No. 12-30256, 02-28-2014

Practice Areas: Criminal Law

5th Cir.

United States v. Urias-Marrufo

The district court denied the defendant's motion to withdraw her guilty plea. When a Padilla claim is sufficiently presented during a motion to withdraw a plea, both legally and factually, a district court errs in failing to address the claim. If the court finds that a Padilla violation occurred, that finding compels the court to permit the defendant to withdraw the guilty plea. The district court's judgment is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 13-50085, 02-28-2014

Practice Areas: Criminal Law

5th Cir.

Estate of Montana Lance v. Lewisville Independent School District

The district court granted judgment in favor of the school district in this case alleging constitutional violations and discrimination against a special-needs student who killed himself at school. The plaintiffs cannot sustain their Rehabilitation Act of 1973 §504 claim because the school district implemented an individualized education program. Regarding the allegation of deliberate indifference, school districts are afforded flexibility in responding to unacceptable behavior and may tailor their responses to the circumstances. Because the record evidences a pattern of active responses by the school district to incidents involving the student, no discriminatory intent may be imputed to the school district. The evidence does not demonstrate that the school district knew about an immediate danger to the student's safety. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-41139, 02-28-2014

Practice Areas: Education Law

5th Cir.

Tiblier v. Dlabal

The pension plans of a medical practice invested in the bonds of an oil and gas company. After the oil and gas company stopped making interest payments on the bonds, plaintiffs filed suit alleging violations of the Employee Retirement Income Security Act. Summary judgment was granted in favor of the investment advisor. To satisfy the "authority or control" requirement in §1002(21)(A)(i), the plaintiffs must demonstrate that the advisor caused the plans' trustees to relinquish their independent discretion in investing the plans' funds and to instead follow the course that he prescribed. The advisor, who was paid a third party commission but not a fee connected to the investment, is not a ficuciary. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-50344, 02-28-2014

Practice Areas: Labor and Employment , Employee Benefits , Pensions and Other Retirement Benefits

5th Cir.

Perez v. Stephens

The petitioner's attorney, allegedly without consulting the habeas petitioner, failed to timely appeal the denial of the petitioner's habeas claims and certificate of appealability. Upon motion, the district vacated and reentered judgment to allow a timely appeal. The petitioner does not claim he was denied a full and fair hearing before the district court nor does he seek by the ruling to have the district court alter its ruling, but instead he seeks solely to use a Federal Rule of Civil Procedure 60(b) motion as a means of achieving an untimely appeal. The district court's order is vacated and the appeal is dismissed. 5th U.S. Circuit Court of Appeals, Nos. 13-70002, 13-70006, 02-26-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

Ex parte Zantos-Cuebas

The trial court denied as frivolous the appellant's petition for habeas corpus asking that his guilty plea be vacated. The appellant claims that, because he does not speak English and was not appointed a translator, he entered his plea without an awareness of the constitutional rights he was waiving. The face of the application and affidavits do not indicate that the appellant was manifestly entitled to no relief. The case is reversed and remanded to the trial court for the entry of a written order including findings of fact and conclusions of law. Houston's 1st Court of Appeals, No. 01-13-00958-CR, 02-25-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Fleming & Associates, L.L.P v. Barton

This dispute arose between lawyers involved in the Fen-Phen pharmaceutical litigation over what expenses could be charged to a referring lawyer under the parties' letter agreement. Lawyers Johnson and Barton (J&B) referred cases to Fleming & Associates (F&A). Disputes arose concerning what expenses could be charged to J&B. Johnson then entered into a Profits Interest Transfer Agreement with F&A. The trial court did not err in refusing to reduce any damages awarded to appellees/cross-appellants by 45% pursuant to the PITA; F&A is not entitled to an extinguishment, or offset, of its damages to the extent of 45% pursuant to the PITA because the PITA is an agreement between it and Johnson, not it and J&B. The trial court erred by awarding statutory attorney's fees against it under Texas Civil Practice and Remedies Code §38.001 because a limited liability partnership is neither an individual nor a corporation. The trial court's judgment is affirmed as modified. Houston's 14th Court of Appeals, No. 14-12-00582-CV, 02-27-2014

Practice Areas: Contracts

Tex. App. Dist. 11

Nikolaev v. State

The appellant, a truck driver, contends that the evidence was insufficient to establish that he failed to comply with the sex offender registration requirement to notify law enforcement of a change of residence. Appellant's frequent and prolonged absences from the registered residence did not establish that he had stopped using the house as his primary residence. The lack of utility services at the registered address did not establish that the appellant no longer used the house as his residence. The trial court's judgment is reversed and a judgment of acquittal is rendered. Eastland Court of Appeals, No. 11-12-00049-CR, 02-27-2014

Practice Areas: Criminal Law

5th Cir.

In re BP RE, L.P.

A petition for panel rehearing, and for rehearing en banc, is denied. The panel opinion holds Article III of the U.S. Constitution precludes a bankruptcy court from entering final judgment in a non-core proceeding with the parties' consent. 5th U.S. Circuit Court of Appeals, No. 12-51270, 02-28-2014

Practice Areas: Bankruptcy

Tex. App. Dist. 14

Morgan v. Bronze Queen Management Co., LLC

The appellee bought a note and guaranty that had been the subject of an arbitration proceeding involving the appellant and the guaranty's previous owner. The previous owner nonsuited the claims involving that note and guarantee. The appellant did not object to the nonsuit. The trial court denied the appellant's motion to compel arbitration. The record contains no evidence that the appellant accepted an offer to arbitrate the dispute by performance. Filing a counterclaim in arbitration and withdrawing it before the claim is submitted to the arbitrator for decision does not constitute waiver. The trial court's order is affirmed. Houston's 14th Court of Appeals, No. 14-13-00535-CV, 02-27-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

Tex. App. Dist. 14

David Wight Construction Co. Ltd. v. Federal Deposit Insurance Commission

A bank provided financing for a real estate development. The general contractor alleged fraud, and the trial court granted summary judgment in favor of the bank. The summary judgment evidence would not allow a finding that the bank represented to the general contractor that the bank was withholding ten percent of each payment as "retainage" to be paid to the general contractor upon completion of its work on the project. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-01003-CV, 02-25-2014

Practice Areas: Torts

Tex. App. Dist. 14

In re E.A.F.

The appellant appeals from a decree terminating his parental rights. The trial court may not permit the withdrawal of the attorney ad litem absent a finding of good cause. Because the ad litem was not properly released of his duties, the appellant cannot show he was entitled to Faretta warnings regarding the consequences of such a release. The trial court's decree is affirmed. Houston's 14th Court of Appeals, No. 14-13-00869-CV, 02-25-2014

Practice Areas: Family Law

Tex. App. Dist. 9

In re McDonald

The probate court in this heirship proceeding ruled that the relator was not a "person interested in the welfare" of his grandson and struck the relator's demand for a jury trial. The probate court proceedings combined both heirship and administration issues. The relator paid funeral expenses and has standing as a creditor to the estate. The tender of funds to the court registry did not extinguish the administrator's right to dispute the relator's claim as a creditor. The Estates Code expressly grants standing to "anyone interested in the welfare" of a minor; this grant of standing is not limited to a parent, a court appointed ad litem, or a person appointed by a court. The petition for writ of mandamus is conditionally granted. Beaumont Court of Appeals, No. 09-13-00554-CV, 02-27-2014

Practice Areas: Trusts and Estates

Tex. App. Dist. 6

Morrison v. Whispering Pines Lodge I, L.L.P.

The trial court dismissed this slip and fall claim for failure to file an expert report as a health care liability claim. If there is at least an indirect connection between the claim and the provision of health care, the claim is a health care liability claim. The claim here is not totally untethered from health care, since the state of Texas requires the appellee nursing home to provide housekeeping services and a safe, clean and sanitary environment to its residents. Compliance with the expert report requirement could be accomplished by retaining a physician with the requisite training, education, and knowledge necessary to provide an opinion concerning the acceptable standard of health care and/or safety required for a nursing home facility. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00067-CV, 02-27-2014

Practice Areas: Health Law

Tex. App. Dist. 5

Palla v. Bio-One, Inc.

The appellant claims that the trial court erred by failing to apply the proper measure of damages for a tortious interference with contract claim. The jury's findings indicate it determined the damages related to the breach of contract claim and the damages related to the tortious interference with contract claim were coextensive only with respect to the lost benefits of the agreement which were a consequence of the tortious interference. The damages related to tortious interference differ from the total damages for Bio-One's breach of the agreement, and the variance between the damages found for breach of the agreement and for tortious interference with contract reflects the jury's judgment that two other defednants were not responsible for all of the damages caused by Bio-One's breach of the agreement. The trial court's judgment is affirmed. Dallas Court of Appeals, No. 05-12-01657-CV, 02-24-2014

Practice Areas: Contracts

Tex. App. Dist. 7

McAllen Hospitals, L.P. v. Suehs

Hospitals appeal the trial court's order granting the Texas Health and Human Services Commission's plea to the jurisdiction and dismissing the hospitals' claims concerning medicaid reimbursement for certain inpatient claims. The hospitals cannot establish a viable takings claim. Until such time has passed that their interests are no longer subject to adjustment or recoupment under the Texas Administrative Code's utilization review provisions or its other investigative and review procedures, the hospitals' interests remain contingent and potential rather than definitive and unconditional. Because the hospitals failed to show that they availed themselves of procedures available to rebill the disputed claims as outpatient claims, they have not asserted a viable procedural due process claim. The UR/Medical Appeals Unit's determination did not result from a "contested case" as contemplated by the Administrative Procedure Act. The trial court has jurisdiction to review the hospitals' mandamus claims regarding the administrative appeals process and the handling of three "insufficient documentation" cases; that portion of the trial court's order is reversed and remanded, the order is otherwise affirmed. Amarillo Court of Appeals, No. 07-12-00291-CV, 02-24-2014

Practice Areas: Health Law

5th Cir.

Moore v. Louisiana Board of Elementary & Secondary Education

The district court enjoined the Louisiana Board of Elementary and Secondary Education, the Louisiana Department of Education, and the Superintendent of Education from implementing Act 1 and Act 2 of the 2012 Louisiana Legislature. Act 2 creates a school voucher program which diverts Minimum Foundation Program funds from the school districts to individual children so they can use the funds to attend a private school or take courses not offered in their public schools from other independent course providers. A Louisiana Supreme Court holding has mooted all issues related to Act 2. Act 1 vests authority for school staffing decisions primarily with school superintendents and principals. It also permits an "ineffectiveness" criterion to be used as the sole basis for discharging teachers. The district court lacked jurisdiction to enter an injunction against the two state agency defendants. The superintendant cannot be enjoined without some showing that Act 1 is causing or will cause him to violate federal law and that the prospective relief is necessary to prevent such a violation. The injunction is vacated and remanded for dismissal. 5th U.S. Circuit Court of Appeals, No. 12-31218, 02-24-2014

Practice Areas: Education Law

5th Cir.

United States v. Salazar

The appellant allegedly violated the terms of his supervised release, and was sentenced to a prison term plus an additional period of supervised release. Special conditions of supervised release must be reasonably related to one of the following statutory factors: the nature and circumstances of the offense and the history and characteristics of the defendant; the need to afford adequate deterrence to criminal conduct; the need to protect the public from further crimes of the defendant; and the need to provide the defendant with needed training, medical care, or other correctional treatment in the most effective manner. One of the special conditions, forbidding possession of sexually oriented materials, is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 12-50695, 02-24-2014

Practice Areas: Criminal Law

5th Cir.

Sanchez v. R. G. L.

Three children through a next friend appeal the district court's finding that they were being wrongfully retained in the U.S. and should be returned to their mother. The district court did not lack jurisdiction. The party sued had knowledge of the children's location and the authority to direct their placement. The absence of the Office of Refugee Resettlement as a party is not a meaningful defect. Because the exceptions to return in the Hague Convention on the Civil Aspects of International Child Abduction are prospective, the district court didn't err by failing to account for the mostly retrospective harm allegedly suffered by the children or the conclusions of a psychologist. An asylum grant does not supercede the enforceability of a district court's order that the children should be returned to their mother, as that order does not affect the responsibilities of either the Attorney General or Secretary of Homeland Security under the INA. An asylum grant does not remove from the district court the authority to make controlling findings on the potential harm to the child. The district court's order is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 12-50783, 02-21-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 1

Tope v. State

The appellant challenges a pretrial diversion program available to some alleged first-time DWI offenders in Harris County. The diversion program does not violate the seperation of powers doctrine. Because there is no right or entitlement to enter into pretrial diversion, appellant's due process rights were not implicated. The trial court didn't err by denying the appellant's request for the names and case numbers of people who were granted pretrial diversion. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, Nos. 01-12-00959-CR, 01-12-00960-CR, 02-20-2014

Practice Areas: Criminal Law

5th Cir.

United States v. Fernandez

The appellant argues that the district court committed reversible error in assessing two criminal history points rather than only one, because his prior sentence did not involve imprisonment. Although the appellant's incarceration occurred prior to a determination of his guilt, his ultimate sentence was premised on the fact that he had served time. In this way, his time-served credit was incorporated into his sentence. When a suspended prior sentence is at issue, the sentencing court must assess criminal history points based only on the non-suspended portion of the sentence. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-50131, 02-24-2014

Practice Areas: Criminal Law

5th Cir.

Scottsdale Insurance Co. v. Logansport Gaming, L.L.C.

This dispute concerns the interpretation of an insurance policy for commercial general liability and property insurance containing a protective safeguards endorsement. A fire occurred on the insured's property. The policy's use of the phrase "in complete working order" to modify "maintain" leaves no doubt that diligence alone is not enough to satisfy the plain terms of the policy. In conceding that the fire suppression system did not work on the day of the fire, the insured necessarily admits that its system was not "in complete working order, " and thus did not comply with the plain language of the policy. The district court's grant of summary judgment for the insurer is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-30645, 02-24-2014

Practice Areas: Insurance Law

5th Cir.

In re Deepwater Horizon

Louisiana coastal parishes filed suit against defendants involved in the Deepwater Horizon oil spill. The suit was removed to federal court and dismissed. 43 U.S.C. § 1349 requires a "but for" connection; it does not include a purposive element and there is no situs requirement. Federal law, the law of the point source, exclusively applies to the claims generated by the oil spill in any affected state or locality. The Oil Pollution Act applies as the law of the Outer Continental Shelf Lands Act point source and, along with the Clean Water Act penalties, furnishes a comprehensive remedial regime for affected states' governmental and private claims. There are no state remedies to save. The removal and the district court's dismissal are affirmed. 5th U.S. Circuit Court of Appeals, No. 12-30012, 02-24-2014

Practice Areas: Environmental Law

Tex. App. Dist. 11

Galindo v. Prosperity Partners, Inc.

The trial court dismissed, with prejudice, the underlying claims based on the appellants' failure to pay discovery sanctions. Once the appellants contended that the sanctions were cost-prohibitive and precluded their ability to continue with the litigation, the trial court was required to modify the sanctions order to provide that the sanctions were to be paid when a final judgment was entered or to make express findings, after a hearing, as to why the sanctions did not have a preclusive effect. The trial court abused its discretion when it dismissed the case for the appellants' failure to pay the very sanctions that they contended would preclude them from pursuing their suit. The trial court erred when it did not specify which attorneys were liable for the sanctions imposed. The trial court's sanctions order and dismissal order are reversed, and judgment is rendered that the appellees take nothing on their sanctions claim. Eastland Court of Appeals, No. 11-12-00034-CV, 02-21-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 10

Midstate Environmental Services, LP v. Peterson

The appellant pursues a restricted appeal from a default judgment. There were defects in both the citation and the return of citation. The absence of a seal is a defect in service that would make a default judgment improper. The failure to direct the citation to the defendant named in the petition is a defect that would preclude a default judgment. There is no indication on the return itself that it was ever filed with the clerk of the court, let alone that it was on file for 10 days. The trial court's judgment is reversed and remanded. Waco Court of Appeals, No. 10-13-00138-CV, 02-20-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 6

Duffey v. State

After an ex parte meeting with family of the alleged victim, the trial court rejected a previously announced plea agreement. A reasonable member of the public at large, knowing all the facts in the public domain concerning the judge's alleged conduct, would have a reasonable doubt as to the trial judge's impartiality in this case. The error was harmful, considering the risk of injustice to the parties, the risk that denial of relief will produce injustice in other cases, and the risk of undermining the public's confidence in the judicial process. The trial court's judgment is reversed and remanded for a new trial by a different judge. Texarkana Court of Appeals, No. 06-12-00197-CR, 02-21-2014

Practice Areas: Criminal Law

Tex. App. Dist. 2

Hall v. RDSL Enterprises LLC

The plaintiff appeals an adverse summary judgment in her suit alleging age discrimination. The plaintiff alleges that her employer eliminated the position of "food prep" specialist, and transferred those duties to younger employees. The plaintiff was 81 years old when she was terminated. The reduction-in-force prima facie standard may apply to a reduction in force by one employee. The appellant met her prima facie burden. The trial court's judgment is reversed and remanded. Fort Worth Court of Appeals, No. 02-12-00363-CV, 02-20-2014

Practice Areas: Labor and Employment

5th Cir.

United States v. Handy

On remand, the district court was ordered to enter a finding as to whether the appellant's possession of a firearm facilitated or had the potential to facilitate his alleged cocaine possession and to resentence the appellant, if necessary. The district court found resentencing unnecessary. In its order, the district court adopted a paragraph in the revised presentence report clarifying that it served as the factual predicate for its application of the sentencing enhancement under U.S. Sentencing Guidelines §2K2.1(b)(6). The appellant failed to object to the facts set forth in that paragraph. The district court's judgment on remand is affirmed. 5th U.S. Circuit Court of Appeals, No. 13-40249, 02-20-2014

Practice Areas: Criminal Law

5th Cir.

Miresles-Zuniga v. Holder

An immigration judge found that the petitioner was not statutorily eligible for discretionary relief from a removal order because of the "stop-time rule" in 8 U.S.C. §1229b(d)(1). That the same Texas offense is referred to in one section as a crime involving moral turpitude but renders the alien removable under a separate section as a crime of domestic violence is not contrary to the statutory language. The petition for review is denied. 5th U.S. Circuit Court of Appeals, No. 13-60038, 02-14-2014

Practice Areas: Immigration Law

5th Cir.

Grimes v. BNSF Railway Co.

The appellant challenges a judgment giving collateral-estoppel effect, in his Federal Railway Safety Act suit, to a finding of fact made by a Public Law Board in the course of appellant's pursuit of his rights under a collective bargaining agreement with a railway company. In rejecting the application of collateral estoppel, the appellate court notes that the hearing was conducted by the railroad; the plaintiff was represented by the union rather than an attorney; the termination decision was made by a railroad employee, not by an impartial fact finder such as a judge or jury; the rules of evidence do not appear to have been controlling; and most crucially, the PLB's affirmance was based solely on the record. The judgment is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 13-60382, 02-17-2014

Practice Areas: Labor and Employment , Labor Law

Tex. App. Dist. 7

Shadden v. State

The appellant appeals the denial of his motion to suppress. The police received an anonymous tip that the appellant was allegedly assaulting a person at his residence and that he might be using a weapon. When appellant answered the door, he appeared shocked, and began backing away from the door, which began to close. The trial court could conclude that the officers' entry into appellant's home was based on a reasonable belief that their actions were immediately necessary to protect or preserve life or avoid serious injury. The trial court did not err in determining that the scope of the officer's search of the residence leading to the discovery of alleged methamphetamine in plain view did not exceed the exigency that legitimized his presence in the first place. The trial court's judgment is affirmed. Amarillo Court of Appeals, No. 07-13-00045-CR, 02-20-2014

Practice Areas: Criminal Law

5th Cir.

United States ex rel. Babalola v. Sharma

The district court in this qui tam action held that, because there was no qui tam complaint in existence at the time the government pursued criminal charges against the defendants, the criminal proceeding did not constitute an "alternate remedy" under 31 U.S.C. §3730(c)(5), and thus, the relators had no right to share in that recovery. Because there was no qui tam action pending at the commencement of the restitution proceeding, the restitution proceeding does not constitute an alternate remedy under the statute. The district court's partial summary judgment is affirmed and remanded. 5th U.S. Circuit Court of Appeals, No. 13-20182, 02-14-2014

Practice Areas: Criminal Law

5th Cir.

United States v. Lagrone

The appellant was charged in two felony counts of allegedly violating 18 U.S.C. §641. Section 641 permits the aggregation of thefts. Felony penalties for each misdemeanor-level theft are not clearly prescribed by the statute. The appellant is properly subject to only a single felony count under §641 and must be resentenced. The sentence is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 13-10049, 02-18-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

Compton v. Pfannenstiel

In this dispute over the conservatorship of two children, the trial court appointed their mother, father, and maternal grandmother as joint managing conservators, further designating the grandmother as the person with the right to designate the children's place of residence. Texas Family Code §153.131 applies to the appointment of a non-parent in addition to both parents. The trial court was within its discretion in naming a grandparent as a joint managing conservator to protect the children's physical health and emotional development. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-13-00062-CV, 02-13-2014

Practice Areas: Family Law

Tex. App. Dist. 1

Canfield v. State

The appellant challenges his conviction for capital murder as a co-conspirator or party. The appellant's attorney did not object to the state's use of an affidavit he signed during plea negotiations for impeachment purposes. Assuming this was deficient, the appellant failed to demonstrate prejudice. The jury witnessed other inconsistencies between the appellant's trial testimony, his earlier testimony, and the testimony of other witnesses. Credibility wasn't important here, given that the jury could have believed every word of appellant's trial testimony and still convicted him of capital murder as a co-conspirator. The fact that appellant engaged in some type of plea negotiations would not necessarily be contrary to appellant's version of events. The appellant's conviction is affirmed. Houston's 1st Court of Appeals, No. 01-12-00303-CR, 02-13-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

Ltd. v. PM Realty Group, LP

The appellant sued the appellees, providers of property management services, alleging breach of contract and other claims arising out of an agreement to provide remediation services in the aftermath of Hurricane Ike. The appellant is bound by its judicial admission that it completed its work on the properties pursuant to a contract with the property owners. It would be unjust to allow the appellant to disavow a contract that it had previously asserted with one group of entities and then proceed to recover for the same work from a different party under a different contract when it had used the first asserted contract to obtain a settlement award. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00618-CV, 02-13-2014

Practice Areas: Contracts

Tex. App. Dist. 1

In re Bates

The relator seeks to compel the trial court to set aside its order granting the motion for new trial. An affidavit stating that the order was signed at some point before expiration of the trial court's plenary power is not given credit over the order itself, which is dated past the expiration. A nunc pro tunc order issued by a respondent trial court in violation of an appellate court stay order is void. The writ of mandamus is conditionally granted. Houston's 1st Court of Appeals, No. 01-13-00037-CV, 02-13-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 14

D.R. Horton-Texas, Ltd. v. Bernhard

A home builder contends that the trial court erred by enforcing the attorney's fees portion of an arbitration award and awarding additional attorney's fees for appealing the enforcement of the arbitration award. The contract does not specifically prohibit an arbitrator from awarding attorney's fees as damages in accordance with the Residential Construction Liability Act. The issue of attorney's fees was clearly submitted to the arbitrator, and the arbitrator consulted the contractual provisions and statutes regarding attorney's fees when reaching his conclusion. The arbitrator did not exceed his authority. There is no basis for modifying the arbitrator's award with additional attorney's fees for appeals. The trial court's judgment is affirmed as modified. Houston's 14th Court of Appeals, No. 14-12-01150-CV, 02-20-2014

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR)

Tex. App. Dist. 14

Torres v. State

The appellant challenges his conviction for alleged aggravated sexual assault of a child. The jury reasonably could have believed the complainant's testimony, especially given the record evidence that the complainant's same allegations were corroborated over the course of several years by others to whom the complainant had made outcry. The determination of whether or not the complainant was coached was within the province of the jury. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-00690-CR, 02-20-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Adams v. State

The appellant challenges the sufficiency of the evidence supporting the award of a specific amount in court costs assessed against him in the trial court's judgment following his plea of "guilty" to an indictment. The lack of a written bill pursuant to Texas Code of Criminal Procedure Article 103.001 does not make the appellant's claim unripe. Any bill of costs created after the judgment would be insufficient to support the trial court's assessment of a specific amount of costs in the judgment. The trial court's judgment is affirmed as modified to delete the assessment of a specific dollar amount as court costs. Houston's 14th Court of Appeals, No. 14-12-00768-CR, 02-20-2014

Practice Areas: Criminal Law

Tex. App. Dist. 4

In re Kramer

This is a contempt judgment. The court finds that the appellant's attorney should be held in contempt for willfully and intentionally failing to comply with an order to file a reasonable explanation for not timely filing appellant's brief, an order to file a brief by a certain date, and an order to appear and show cause why she should not be held in contempt. San Antonio Court of Appeals, No. 04-13-00346-CR, 02-18-2014

Practice Areas: Appellate Law - Civil

Tex. App. Dist. 4

Tarrant County Democratic Party v. Steen

This appeal involves claims for reimbursement of attorney's fees and expenses in connection with an election contest. Texas Election Code §173.086(a) waives the Secretary of State's sovereign immunity for a suit that complies with its requirements; the Election Code imposes statutory prerequisites which were either met or waived, and the appellants successfully invoked §173.086(a)'s waiver. The appellants' fees regarding a suit filed four months after the primary election were in connection with the primary election, and the appellants are entitled to reimbursement of those fees. The trial court's judgment is reversed and rendered in part, and affirmed in part. San Antonio Court of Appeals, No. 04-13-00069-CV, 02-19-2014

Practice Areas: Election and Political Law

Tex. App. Dist. 6

Cervantes v. McKellar

Plaintiffs appeal the trial court's grant of a hospital's plea to the jurisdiction. The appellant complains that injury was caused by delayed delivery due to the nurses' alleged failure to timely respond to information provided by a fetal heart monitor. Negligent interpretation and delayed response to information do not involve the use of tangible personal property and, therefore, do not fall within the Texas Tort Claims Act waiver provisions. The appellant's allegations are incurably defective. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00111-CV, 02-19-2014

Practice Areas: Health Law

Tex. App. Dist. 6

Gray v. Sangrey

The plaintiff brought suit against her daughter and son-in-law, seeking to impose a constructive trust against a house and lot that had been deeded to the the daughter and son-in-law. The trial court found, inter alia, that the plaintiff and daughter had a confidential relationship, and that the daughter breached her fiduciary duty. The court placed a constructive trust on the house. Uncontradicted testimony established the existence of a trust relationship. Prior to the transaction, there was a consistent pattern of care and assistance that rises above mere acts of child/parent kindness for an extended period of time, and that pattern continued and intensified when the plaintiff moved next door to the daughter. The transaction between the principal and the fiduciary give rise to unjust enrichment. The trial court's judgment is affirmed. Texarkana Court of Appeals, No. 06-13-00043-CV, 02-20-2014

Tex. App. Dist. 9

Fresh Coat, Inc. v. Parexlahabra, Inc.

The trial court granted summary judgment in favor of a manufacturer on a statutory indemnity claim brought against it by a company that installed an allegedly defective product, an exterior insulation and finishing system, on the exterior walls of various homes. The filing of a suit, and not a letter from a user complaining of a manufacturer's product, is the action required to prevent the operation of the products liability statute of repose. Because the installer presented no evidence to show that it settled "products liability actions" under Texas Civil Practice and Remedies Code Chapter 82 , the trial court properly granted the manufacturer's no-evidence motion. The trial court's judgment is affirmed. Beaumont Court of Appeals, No. 09-13-00067-CV, 02-20-2014

Practice Areas: Products Liability

Tex. App. Dist. 8

Velvet Snout, LLC v. Sharp

The trial court entered a take nothing judgment on the appellant's breach of contract and fraud claims. The appellant had rubber flooring installed at her dog grooming facility, and she chose chemical welding for the installation process. There was evidence of excessive water on the floor, and that third persons had made repairs. The evidence supported the trial court's negative causation finding. The trial court's judgment is affirmed. El Paso Court of Appeals, No. 08-12-00202-CV, 02-19-2014

Practice Areas: Contracts

Tex. App. Dist. 7

Barnes v. State

The appellant, who was charged by indictment with unlawful possession of a firearm, challenges the trial court's ruling on his motion to suppress. The officers were told that the appellant was a convicted felon with guns in his car and was threatening to kill people, therefore, a frisk of appellant for weapons was justified. Once an officer observed alleged marijuana in plain view probable cause attached to search the interior of the vehicle including compartments, such as the glove compartment and center console, where other contraband might have been stashed. The trial court's judgment is affirmed. Amarillo Court of Appeals, No. 07-11-00382-CR, 02-13-2014

Practice Areas: Criminal Law

Tx. Sup. Ct.

Coinmach Corp. v. Aspenwood Apartment Corp.

An operator of laundry machines entered into a 10-year lease at an apartment complex. The property changed hands, and the new ownder gave the operator written notice to vacate. The trial court entered summary judgment for the tenant on all of the owner's claims, and the court of appeals reversed and remanded in part. A tenant at sufferance cannot be liable for breach of the previously-terminated lease agreement; a tenant at sufferance is a trespasser and can be liable in tort (although the extent of liability depends on the nature of the trespass), including, in this case, aleged tortious interference with prospective business relations; and the tenant in this case cannot be liable under the DTPA because the property owner was not a consumer. The property owner here cannot recover under the UDJA. The court of appeals' judgment is affirmed in part, reversed in part, rendered on the declaratory relief claim, and remanded. Texas Supreme Court, No. 11-0213, 02-14-2014

5th Cir.

Sarmientos v. Holder

The petitioner challenges the immigration judge's conclusion that he is not eligible for cancellation of removal because he committed an aggravated felony. The least of the acts criminalized by the alleged delivery of cocaine crime under the subject Florida statute does not necessarily violate the federal cocaine distribution statute since the federal offense requires the prosecution to prove beyond a reasonable doubt an element that the state offense does not: knowledge of the illicit nature of the substance. The state conviction is thus not categorically an aggravated felony. The petition for review is granted, and the IJ decision is vacated and remanded. 5th U.S. Circuit Court of Appeals, No. 13-60086, 02-12-2014

Practice Areas: Immigration Law

5th Cir.

United States v. Baker

The appellant challenges a sentencing enhancement for distribution of child pornography through the use of a file-sharing program. The enhancement was applied absent evidence that the appellant knew the program enabled other users to access the child pornography he downloaded. U.S. Sentencing Guidelines §2G2.2(b)(3)(F) does not contain a scienter requirement. The district court's imposition of the enhancement is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-10834, 02-12-2014

Practice Areas: Criminal Law

5th Cir.

Morris v. Livingston

The plaintiff challenges the constitutionality of a Texas statute providing that inmates must pay a $100 annual health care services fee when they receive medical treatment in the prison system. The appellant has not pleaded sufficient facts to show that the health care services fee acts as a functional denial of medical care, by requiring him to obtain either medical care or basic necessities. A posted notice of the statute in the prison is sufficient for due process. The appellant has not established a fourth amendment claim; appellant failed to show that the taking of funds from his inmate trust fund account to pay for his medical care was unreasonable in light of the goal of controlling the prison budget. The district court's judgment is affirmed. 5th U.S. Circuit, No. 12-50848, 01-10-2014

Practice Areas: Constitutional Law

5th Cir.

In re Green Hills Development Company, L.L.C.

The appellant challenges the dismissal of its petition for involuntary bankruptcy filed against the appellee pursuant to 11 U.S.C. §303. The decision not to file a counter-claim does not limit the appellee's arguments on appeal. An appellee is not limited to the reasoning of the district court and may raise any argument that is supported by the record to defend the judgment. A claim holder does not have standing to file an involuntary petition if there is a bona fide dispute as to liability or amount of the claim. Evidence of a bona fide dispute is not limited to judgments; the existence and character of pending but unresolved litigation may be considered as evidence of a bona fide dispute. The district court's dismissal is affirmed, a motion for judicial notice is granted, appellee's motion for sanctions is denied. 5th U.S. Circuit Court of Appeals, No. 12-60784, 02-03-2014

Practice Areas: Bankruptcy

5th Cir.

Ayers v. Board of Regents University of Texas System

The appellant challenges the dismissal of his First Amendment and due process claims in this wrongful termination suit against his former employer. The appellant abandoned his First Amendment claim by ignoring multiple opportunities to press the district court for a ruling on that claim, ignoring his failure to inform the district court following the entry of final judgment that it had not ruled on his First Amendment claim. By scattering his allegations of arbitrary and capricious termination throughout his complaint and failing to press the district court for a ruling, the appellant waived his right to the pursue the substantive due process claim on appeal. The district court's judgment is affirmed. 5th U.S. Circuit Court of Appeals, No. 12-51166, 02-10-2014

Practice Areas: Labor and Employment

5th Cir.

Art Midwest Inc. v. Atlantic Limited Partnership XII

In this case arising from the collapse of a real estate transaction, the defendants-appellees argue that the decision by the plaintiff-appellants not to cross-appeal a jury's finding that the defendants-appellees did not commit fraud prevents them from later raising the same claims. The appellants could have filed a "protective" or "conditional" cross-appeal of the adverse fraud finding. By not cross-appealing the fraud finding, the appellants could not raise the same fraud claims on remand. An award of combined contribution amounts is vacated, the district court's judgment is remanded and otherwise affirmed. 5th U.S. Circuit Court of Appeals, No. 11-11140, 02-03-2014

Practice Areas: Appellate Law - Civil

5th Cir.

Carl E. Woodward, L.L.C. v. Acceptance Indemnity Insurance Co.

The district court held there was a duty to defend in this appeal arising from claims of alleged negligent construction of a condominium project in south Mississippi. Under the policy, claims need not be asserted during the named insured's ongoing operations to fall within the scope of coverage, but the claims must be causally related to the ongoing operations. Even accepting the district court's factual finding that damage had occurred during ongoing operations, the only damage supported by allegation is the construction that was not in conformity with plans and specifications. Liability for such damages arises out of completed operations. The district court's judgment is reversed and remanded. 5th U.S. Circuit Court of Appeals, No. 12-60561, 02-11-2014

Practice Areas: Insurance Law

5th Cir.

United States v. Chacon

The appellant, who was convicted of alleged illegal reentry, argues that a sentencing enhancement was improper because he was convicted of an "attempt" offense. A crime of violence includes an attempt to commit a crime of violence. The appellant did not argue that argue that an "attempt" under Maryland law is different from an "attempt" under the U.S. Sentencing Guidelines. The district court's judgment is affirmed. No. 12-41301, 02-06-2014

Practice Areas: Criminal Law

5th Cir.

Siwe v. Holder

An immigration judge issued a removal order, rejecting the petitioner's arguments that he was entitled to adjust his status from asylee to lawful permanent resident under Immigration and Nationality Act Section 209(b) and that he was entitled to deferral of removal under the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Board of Immigration Appeals affirmed. The plain language of the statute does not require an alien to maintain asylum status to be eligible for an adjustment of status under Section 209(b). The appellate court lacks jurisdiction to review the CAT request. The petition is dismissed in part, vacated in part, and remanded. 5th U.S. Circuit Court of Appeals, No. 12-60546, 02-06-2014

Practice Areas: Immigration Law

Tex. App. Dist. 1

Mauldin v. Clements

The appellant challenges the trial court's final order awarding the paternal grandparents sole managing conservatorship of her two children. A preponderance of the evidence supported the trial court's implied finding that the appellant was not, at the time of the grandparent's intervention, a suitable person to have custody of the children and that appointing her as the children's managing conservator would have significantly impaired their emotional development. The parental presumption does not apply in modification suits. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00016-CV, 02-04-2014

Practice Areas: Family Law

Tex. App. Dist. 1

Lyssy v. State

The appellant moved to suppress evidence of a blood draw taken the night of his arrest. He argued that the report of his criminal history on which the officer relied was not reliable or credible because it listed a conviction for "driving while intoxicated 2nd" but no prior DWI conviction. The appellant forfeited his objection to the constitutionality of taking blood under Texas Transportation Code §724.012(b). The context of the motion to suppress, as it developed at the hearing, demonstrates that the challenge was based solely on a failure to observe the statute's terms, not an attack on the constitutionality of what it authorizes. When the officer heard from his dispatcher that the appellant had been allegedly convicted of "DWI Second Conviction, " he possessed reliable information from a credible source that the appellant had been convicted twice of driving while intoxicated. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00898-CR, 02-06-2014

Practice Areas: Criminal Law

Tex. App. Dist. 1

LP v. Harris County Appraisal District

The appellants challenge the appraised value of two commercial properties for the 2010 tax year. no portion of the assessed tax was paid on either property in dispute prior to the delinquency deadline, therefore the appellant failed to substantially comply with section 42.08(b). The appellant failed to show that he was unable to pay the taxes not in dispute, and failed to inform the tax office that he would be unable to pay. The trial court did not err in concluding that the appellant was not excused from the prepayment requirement. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-11-00874-CV, 02-04-2014

Practice Areas: Taxation

Tex. App. Dist. 1

Lopez v. State

The appellant, who was convicted of alleged murder, argues he received ineffective assistance. The appellant argues his attorney failed to discover that he had represented one of the persons who allegedly assaulted the appellant. That the attorney conducted an inadequate investigation, and was therefore unaware of the alleged criminal histories of the persons who allegedly assaulted his client, is but one possible inference. Another is that the attorney believed that such evidence was inadmissible character evidence. There is no compelling inference that the attorney's advice to plead guilty was tainted by an actual conflict of interest. The trial court's judgment is affirmed. Houston's 1st Court of Appeals, No. 01-12-00997-CR, 02-04-2014

Practice Areas: Criminal Law

5th Cir.

Reed v. Stephens

The petitioner-appellant was convicted of capital murder and sentenced to death. The district court's rejection of actual innocence is not reasonably debatable. The affidavits submitted by the appellant create, at best, the possibility that the appellant's sperm entered the victim more than a day before her death, leading to the inference that the appellant did not sexually assault the victim. The condition of the victim's body strongly supports the conclusion that she was the victim of a sexual assault and that the sperm inside her did not result from a consensual encounter. Although the district court incorrectly concluded that it was not required to review the appellant's ineffective assistance claims, the district court rejects those claims including that appellant's counsel was deficient for failing to present evidence showing a relationship between the appellant and the victim, and evidence of alleged abuses against women and minorities by the victim's fiance. A certificate of appealability is denied. 5th U.S. Circuit Court of Appeals, No. 13-70009, 01-10-2014

Practice Areas: Criminal Law

Tex. App. Dist. 13

Absalon v. State

The appellant was convicted of alleged of capital murder and sentenced to life imprisonment for a crime allegedly committed 26 years before his arrest. As a condition for probation related to an unrelated criminal mischief charge, the appellant attended a substance abuse treatment program. The trial court did not abuse its discretion in denying the appellant's motion to suppress statements he made during the course of the program. The trial court did not err by allowing the results of a presumptive test for blood on a towel. The trial court's judgment is affirmed. Corpus Christi Court of Appeals, No. 13-12-00666-CR, 02-13-2014

Practice Areas: Criminal Law

Tex. App. Dist. 13

In re Estate of Araguz

After a volunteer firefighter died in the line of duty, his mother filed suit to declare his marriage void as a matter of law on the grounds that it constituted a same-sex marriage. Texas law recognizes that an individual who has had a "sex change" is eligible to marry a person of the opposite sex. The condition of gender dysphoria-including its symptoms, diagnosis, and treatment-are issues of fact not within our common knowledge and therefore require expert testimony. Because a rational trier of fact could draw a reasonable inference that the firefighter's wife was male based on her male sex organs, without the need for expert testimony, the evidence was sufficient to defeat a no evidence motion for summary judgment. The trial court's judgment declaring the marriage void is reversed and remanded. Corpus Christi Court of Appeals, No. 13-11-00490-CV, 02-13-2014

Practice Areas: Family Law

Tex. App. Dist. 14

Ex parte Ragston

This is an appeal from the denial of a pretrial writ of habeas corpus. Although the scope of punishment should be known before trial in order to voir dire prospective jurors, uncertainty in sentencing does not prevent the state from announcing ready. The sentencing statute was amended and the appellant did not argue that the statute, as currently written, would operate unconstitutionally if he were to proceed to trial today and be convicted of capital murder. The trial court erred by holding appellant without bond on his charges of capital murder and murder in the first degree. The denial of habeas relief is affirmed as reformed. Houston's 14th Court of Appeals, No. 14-13-00584-CR, 02-06-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Martin v. Chick-Fil-A

This is a premises liability case. The plaintiff allegedly tripped on a concrete lane divider, fell, and suffered a knee injury. Without specifying grounds, the trial court granted the defendant's traditional and no-evidence motions for summary judgment. The plaintiff presented no evidence that the parking block presented an unreasonable risk of harm. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-13-00025-CV, 02-04-2014

Practice Areas: Torts

Tex. App. Dist. 14

Tollett v. State

The appellant challenges his conviction of alleged misdemeanor driving while intoxicated for operating a motor vehicle in a public place while allegedly intoxicated. The appellant was not denied his constitutional rights by the trial court's denial of his request to cross-examine an officer about the officer's 2006 termination because the officer allegedly failied to file a mandatory "use of force" form after his gun accidentally discharged during an incident, and then allegedly intentionally withheld information about this accidental discharge when testifying during a trial. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-01037-CR, 02-04-2014

Practice Areas: Criminal Law

Tex. App. Dist. 10

Turner v. State

The appellant challenges his conviction for alleged manslaughter. The alleged victim's failure to yield the right of way was not clearly sufficient by itself to have caused the collision and the appellant's very high rate of speed was not clearly insufficient by itself to have caused the collision. Ingestion of a controlled substance or drug as a reckless act may be included in an indictment for manslaughter. Additionally, because the allegation of the ingestion of a controlled substance was set forth conjunctively in the indictment with the other allegations regarding the appellant's driving, the trial court's denial of the motion to quash was not erroneous. A motion to quash the indictment cannot be used to argue that the prosecution is unable to prove one of the elements of the crime. Waco Court of Appeals, No. 10-12-00367-CR, 01-30-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

In re Immobiliere Jeuness Establissement

The relator is an entity organized under the laws of Lichtenstein and a limited partner in 29 Kuykendahl Road Ltd., which, in turn, is a limited partner in 9.2 Louetta Road Ltd. (the "partnerships"). The relator petitions for writ of mandamus to compel the trial judge to set aside abatement orders. The underlying suit was not maintained by the partnerships. Instead, it was brought as a derivative action by the relator pursuant to Texas Business Organizations Code §153.401. Because the partnerships are not maintaining the suit, their forfeiture of the right to transact business in Texas does not require abatement of the suit under §153.309. Mandamus is conditionally granted. Houston's 14th Court of Appeals, No. 14-13-00771-CV, 02-06-2014

Practice Areas: Business Entities

Tex. App. Dist. 14

Branch v. Monumental Life Insurance Co.

The former wife of the decedent appeals the trial court's ruling that she is not entitled to interpleaded funds in this dispute over life insurance proceeds. The insurance company's purported failure to offer evidence disproving her claims is no evidence that the appellant was entitled to prevail. Where, as here, no marital- property agreement is involved, a divorce's effect on the designation of a spouse as a life-insurance beneficiary is now governed by statute. The designation of the appellant as a life-insurance beneficiary is ineffective as a matter of law. Evidence that she paid premiums is irrelevant to her claims. The judgment of the trial court is affirmed as to the former wife, and the appeals of two other parties are dismissed. Houston's 14th Court of Appeals, No. 14-12-01019-CV, 02-11-2014

Practice Areas: Insurance Law

Tex. App. Dist. 2

City of Willow Park v. E.S. & C.M., Inc.

The appellee brought claims against a city for alleged breach of contract and quantum meruit. The trial court denied the city's plea to the jurisdiction. A contractual provision purporting to retain immunity in direct conflict with Texas Local Government Code §271.152 contravenes public policy and is void. The appellant properly raised the issue of attorney's fees in its plea to the jurisdiction. Section 271.152 does not allow governmental entities to waive immunity for quantum meruit claims. The trial court's judgment is affirmed in part, reversed and rendered in part, and remanded. Fort Worth Court of Appeals, No. 02-13-00272-CV, 02-06-2014

Tex. App. Dist. 3

Cirrus Exploration Co. v. Combs

In this appeal from a final summary judgment in favor of the Comptroller in a tax-refund suit, the appellant argues its purchase of two helicopters qualifies for a sales-tax exemption under Tax Code §151.328. Agency deference is appropriate only where the statute or rule in question is ambiguous. Because the appellant is authorized by the FAA to operate its helicopter as a common carrier transporting persons or property for hire in the regular course of its business, it is a "licensed and certificated carrier" under the Comptroller's regulations. The district court's judgment is reversed and rendered. Austin Court of Appeals, No. 03-13-00036-CV, 02-12-2014

Practice Areas: Taxation

Tex. App. Dist. 14

Ramirez v. State

The appellant was charged with aggravated robbery with a deadly weapon, and convicted of the lesser-included offense of robbery. A defendant is not entitled to an instruction on the lesser-included offense of theft without clear evidence of value in the record. The appellant failed to demonstrate a reasonable probability that the outcome of the proceedings would have been different but for counsel's failure to elicit testimony of the stolen truck's value. The trial court's judgment is affirmed. Houston's 14th Court of Appeals, No. 14-12-01130-CR, 02-04-2014

Practice Areas: Criminal Law

Tex. App. Dist. 14

Harris County Sheriff's Civil Service Commission v. Guthrie

The Sheriff's Civil Service Commission appeals the district court's ruling that reversed the commission's decision to uphold a termination decision. The sherriff's termination stemmed principally from the sherriff's alleged conduct during a theft investigation at a car wash after his wife reported $17 had been stolen from her vehicle. The terminated sherriff received a proposed termination letter and several documents, including a signed, written statement by the general manager of the car wash providing considerable detail regarding the sherriff's alleged conduct and its impact on the general manager and the car wash. The general manager could therefore properly be considered a complainant as defined for purposes of Texas Government Code §614.023 purposes. Houston's 14th Court of Appeals, No. 14-12-00474-CV, 01-13-2014

Tex. App. Dist. 3

City of Austin v. Chandler

A jury returned a verdict favoring the appellees on their claim that a city's method of consolidating the Public Safety Emergency Management Department into the Austin Police Department disparately impacted older PSEM employees by stripping them of their rank and years of service. Given that disparate-impact claims necessarily assert that a facially neutral employment practice adversely affected older employees, it would be wholly illogical to say that employees can never bring a disparate-impact claim when the facially neutral policy relies on factors-like pension status or seniority-that are "empirically correlated with age." The jury could reasonably have concluded that the 9.9 percentage-point difference in raises after the consolidation is sufficiently substantial to raise an inference of causation. The trial court's judgment is affirmed. Austin Court of Appeals, No. 03-12-00057-CV, 02-07-2014

Practice Areas: Labor and Employment

Tex. App. Dist. 4

City of San Antonio v. Kopplow Development, Inc.

On remand from the Texas Supreme Court, the appelate court considers a cross-appellant's argument that its vested right to develop taken property meant that the trial court erred in excluding evidence of the value of the entire property. The trial court erred in concluding that Texas Local Government Code §245.004(9) exempted the cross-appellant's vested rights, and in excluding evidence of the cost to fill the property from 741 feet to 743 feet due to the city's new flooding regulations. The trial court's judgment awarding damages is reversed and remanded for a new trial on the issue of remainder damages related to the inverse condemnation claim. San Antonio Court of Appeals, No. 04-09-00403-CV, 02-05-2014

Tex. App. Dist. 4

Huff Energy Fund, L.P. v.