Recent Decisions

United States Court of Appeals, Fifth Circuit

Grogan v. W & T Offshore, Inc., 15-30369 (5th Cir. 01/27/2016)

W&T Offshore hired Triton Diving Services to provide a vessel, staff, and equipment for W&T's offshore pipeline project. W&T also hired a safety contractor, Tiger Safety, to provide safety monitoring and training. One of Tiger’s employees was injured while on board Triton’s vessel. The court below interpreted the parties' Master Service Contract to place the burden of paying for the injuries on W&T alone. The district court did not clearly err in determining that W&T occupied the vessel. The injured worker was W&T's invitee. The party ultimately responsible for the invitee's presence was W&T, not Triton. The worker was not Triton's invitee. The district court’s ruling is affirmed. Grogan v. W & T Offshore Inc., 5th U.S. Circuit Court of Appeals, No. 15-30369, 01/27/2016.

15-30369
PATRICK E. HIGGINBOTHAM, Circuit Judge:

United States Court of Appeals, Fifth Circuit

Flynn v. Distinctive Home Care, Inc., 15-50314 (5th Cir. 02/01/2016)

The plaintiff-appellant is a pediatrician who performed services at a military base under contract with the appellees. The appellant sued the appellees, alleging employment discrimination under the Rehabilitation Act. Section 504(d) of the Rehabilitation Act does not incorporate the prohibition on employment discrimination suits brought by independent contractors found in Title I of the Americans with Disabilities Act; the Rehabilitation Act permits employment discrimination suits by independent contractors. The district court’s judgment is vacated in part and remanded. Flynn v. Distinctive Home Care, Inc., 5th U.S. Circuit Court of Appeals, No. 15-50314, 02/01/2016.

15-50314
W. EUGENE DAVIS, CIRCUIT JUDGE.

Court of Appeals of Texas, Eighth District, EL Paso

Golden Age Senior Living of El Paso, LLC v. Atwood, 08-14-00161-CV (Tex.App. Dist.8 01/08/2015)

The appellants in this alleged employment-discrimination case challenge the trial court’s denial of their motion to compel arbitration. The appellants have failed to establish the existence of a valid and enforceable arbitration agreement to which they are parties as non-signatories. The underlying principle in In re: Rubiola is that non-signatories may not rely on an arbitration agreement to compel arbitration unless they were acting on behalf of a signatory from which they derive their arbitration rights. Although the signatory here, “12 Oaks,” has a business relationship with appellants, there is no evidence that appellants have an economic interest in 12 Oaks. The trial court’s order denying the motion to compel arbitration is affirmed. Golden Age Senior Living of El Paso, LLC v. Atwood, El Paso Court of Appeals, No. 08-14-00161-CV, 01/08/2015.

08-14-00161-CV
YVONNE T. RODRIGUEZ, Justice

Court of Appeals of Texas, Eighth District, EL Paso

Phillips v. Texas Department of Public Safety, 08-15-00134-CV (Tex.App. Dist.8 01/13/2016)

The trial court dismissed the appellant’s suit against the Texas Department of Public Safety for lack of jurisdiction. There is no administrative appeal from an automatic suspension under the driving-while-license-invalid statute. The license holder's remedy is to challenge the DWLI charge. In the absence of a statute authorizing the appellant to challenge her automatic suspension, DPS retains its sovereign immunity. The trial court’s judgment is affirmed. Phillips v. Texas Department of Public Safety, El Paso Court of Appeals, No. 08-15-00134-CV, 01/13/2016.

08-15-00134-CV
YVONNE T. RODRIGUEZ, JUSTICE

Court of Appeals of Texas, Eighth District, EL Paso

Oncor Electric Delivery Co. LLC v. Chaparral Energy, L.L.C., 08-13-00159-CV (Tex.App. Dist.8 01/13/2016)

A jury found that the appellant, an electricity provider, failed to timely comply with its agreement to provide electricity to the plaintiff’s oil wells and awarded the plaintiff damages and attorneys' fees. The trial court and the Public Utility Commission had concurrent jurisdiction to determine the parties' dispute until the doctrine of primary jurisdiction established that the court was required to defer to the PUC. By failing to raise a primary jurisdiction argument, the appellant failed to preserve the issue. Given the express language of the agreement and the tariff, and the appellant’s failure to object to the jury question which instructed that compliance with an agreement must occur within a reasonable time under the circumstances, the filed-rate doctrine does not apply. Until the utility completed construction of the facilities needed to deliver electricity, there was nothing subject to fluctuation or interruption that would trigger the tariff’s liability limitation. The trial court’s judgment is affirmed. Oncor Electric Delivery Co. LLC v. Chaparral Energy LLC, El Paso Court of Appeals, No. 08-13-00159-CV, 01/13/2016.

08-13-00159-CV
ANN CRAWFORD MCCLURE, CHIEF JUSTICE

Court of Appeals of Texas, Eighth District, El Paso

City of EL Paso v. Collins, 08-14-00319-CV (Tex.App. Dist.8 01/20/2016)

A city contends that the trial court erred in denying its plea to the jurisdiction on the plaintiffs’ premises liability claim. The plaintiffs did not simply allege that the pool water was dangerously cloudy on the day of an accident that injured the plaintiffs’ child — if alone, this allegation would negate the existence of any duty owed by the city, in light of the open and obvious dangers associated with swimming in cloudy water — instead, they also alleged that the cloudy water concealed a hidden, latent danger, a "suction" allegedly occurring at the bottom of the pool that entrapped the child’s hand. At the pleading stage, these factual allegations sufficient to support a claim for premises liability for which governmental immunity is waived. The city never came forward with any evidence to dispute the plaintiffs’ factual allegation that the city had actual knowledge of a dangerous condition existing at the pool on the day of the accident. Consequently, the burden never shifted to the plaintiffs to come forward with any evidence to support that allegation. The plaintiffs’ negligent use claim is merely a recharacterization of their premises liability claim, and is dismissed for lack of jurisdiction. The trial court’s order denying the plea to the jurisdiction on the premises liability claim is affirmed and remanded. City of EL Paso v. Collins, El Paso Court of Appeals, No. 08-14-00319-CV, 01/20/2016.

08-14-00319-CV
STEVEN L. HUGHES, JUSTICE.

Court of Appeals of Texas, Eleventh District

Jobe v. State, 11-15-00220-CR (Tex.App. Dist.11 01/21/2016)

The appellant asserts that the trial court abused its discretion when it denied his request to reduce the amount of the bond. Although the appellant is indigent, ability to make bond is one of many factors to be considered. Given the serious nature of capital murder, the circumstances surrounding the crime as alleged in this case, the potential sentence, the lack of evidence of any effort on the appellant’s part to obtain a bond or of the ability of family and friends to help him do so, and the evidence regarding the alleged crime that was presented at the hearing, the trial court did not abuse its discretion when it concluded that bail in the amount of $1,000,000 was reasonable. The trial court’s order is affirmed. Jobe v. State, Eastland Court of Appeals, No. 11-15-00220-CR, 01/21/2016.

11-15-00220-CR
JOHN M. BAILEY JUSTICE.

Court of Appeals of Texas, Fifth District, Dallas

Shamoun & Norman, LLP v. Hill, 05-13-01634-CV (Tex.App. Dist.5 01/26/2016)

After the settlement of suits involving a client, a firm sued for attorneys’ fees under quantum meruit. The trial court set aside the jury’s verdict in favor of the firm and rendered a take-nothing judgment. An attorney may recover under quantum meruit when the basis for recovery is an oral contingency fee agreement. While the jury heard evidence of an attorney’s hourly rate and number of hours worked under the limited fee agreements, those calculations are irrelevant when considering the reasonable value of services performed outside of those agreements. Although the jury did not rely on hourly-rate evidence and the number of hours the attorney worked reaching the global settlement agreement, a fee that works out to $48,000 an hour is not necessarily unreasonable. As to the quantum meruit claim, the trial court’s judgment is reversed; as to fees incurred for prosecuting the quantum meruit claim, the judgment is reversed and remanded; the judgment is otherwise affirmed. Shamoun & Norman, LLP v. Hill, Dallas Court of Appeals, No. 05-13-01634-CV, 01/26/2016.

05-13-01634-CV
DAVID L. BRIDGES JUSTICE

Court of Appeals of Texas, First District

Vasquez v. State, 01-15-00183-CR (Tex.App. Dist.14 01/14/2016)

The appellant contends that the trial court erred in prohibiting him from discussing the legal registration requirements for convicted sex offenders in his closing argument in the punishment phase. To the extent that the appellant’s remarks in closing argument would discuss and apply the law applicable to convicted sex offenders, as his offer of proof did, the trial court should have allowed them. The trial court properly excluded, however, counsel's comments that sex offenders are less likely to be released on parole than other offenders because it was argument outside the record. Because appellant’s counsel conveyed to the jury the substantive argument that the appellant would be subject to sex offender registration requirements, the error was harmless. The trial court’s judgment is affirmed. Vasquez v. State, Houston’s 1st Court of Appeals, No. 01-15-00183-CR, 01/14/2016.

01-15-00183-CR
Jane Bland Justice

Court of Appeals of Texas, First District

Fawcett v. Rogers, 01-15-00121-CV (Tex.App. Dist.14 01/14/2016)

The trial court denied the defendants’ motion to dismiss this alleged defamation suit. All of the complained-of communications concerned whether the plaintiff had violated internal rules of an organization, the Masons, to which the parties belonged. All of the allegedly defamatory statements were between individuals seeking to defend their common interests. The private nature of the communications does not affect the applicability of Texas Civil Practice and Remedies Code Chapter 27 to his claims. The doctrine of judicial non-interference does not implicate subject-matter jurisdiction and there is no statutory authority allowing interlocutory review of a motion to dismiss based on the doctrine of judicial non-interference. The denial of the motion to dismiss is affirmed in part, reversed in part, and remanded. Fawcett v. Rogers, Houston’s 1st Court of Appeals, No. 01-15-00121-CV (Tex.App. Dist.14 01/14/2016)

01-15-00121-CV
LAURA CARTER HIGLEY JUSTICE

Court of Appeals of Texas, First District

Aamco Transmissions, Inc. v. Bova, 01-14-00974-CV (Tex.App. Dist.14 01/14/2016)

The appellant contends that it is apparent from the face of the record that the trial court erred by entering a no-answer default judgment. A plaintiff is not required to serve an amended petition on a defendant that has not answered unless it seeks a more onerous judgment than the one requested in the superseded pleading. In tort suits, the omission of one or more defendants from an amended petition does not necessarily increase the exposure of the remaining defendants even when the maximum recovery sought remains the same. Conaway does not stand for the proposition that default judgments are void if entered before the deadline to answer a subsequent unserved amended pleading. The trial court’s judgment is affirmed. Aamco Transmissions, Inc. v. Bova, Houston’s 1st Court of Appeals, No. 01-14-00974-CV, 01/14/2016.

01-14-00974-CV
Michael Massengale Justice

Court of Appeals of Texas, First District

Espinosa v. Aaron's Rents, Inc., 01-14-00843-CV (Tex.App. Dist.14 01/14/2016)

A former employee appeals the trial court's summary judgment on the employee's suit for defamation and related claims. By the time the trial court ruled on the summary-judgment motion, the bankruptcy court had granted the employee’s motion to reopen his Chapter 7 case and had permitted him to amend his filings to disclose the state lawsuit as a contingent asset. Judicial estoppel does not bar the suit. The trial court did not err in granting summary judgment on the employee’s malicious prosecution claim; the evidence does not support a reasonable inference that the employer provided false information that was material and relied upon by those who prosecuted the employee. The employee has not identified any statement that the employer made to authorities or in connection with its internal investigation that was false or made with reckless disregard of the truth. The trial court’s judgment is affirmed. Espinosa v. Aaron's Rents Inc., Houston’s 1st Court of Appeals, No. 01-14-00843-CV, 01/14/2016.

01-14-00843-CV
Jane Bland Justice

Court of Appeals of Texas, Fourteenth District

In re Master Flo Valve Inc., 14-15-00956-CV (Tex.App. Dist.14 01/26/2016)

The relators petition for a writ of mandamus compelling that a discovery order be vacated. Discovery orders requiring production from an unreasonably long period are impermissibly overbroad. A request for all evidence that supports an opposing party's allegations, but which does not identify any particular class or type of documents, is an improper request to be allowed to generally peruse all evidence the opposing party might have; such a request is vague and overbroad. A party cannot be compelled to produce that which has not been requested. An order that a party conduct certain keyword searches of its electronic files intrudes on a party's right to develop its own means of searching for responsive documents without court involvement or interference by the opposing party. The petition for writ of mandamus is conditionally granted in part. In re Master Flo Valve Inc., 14-15-00956-CV (Tex.App. Dist.14 01/26/2016)

14-15-00956-CV
KEN WISE JUSTICE.

Court of Appeals of Texas, Fourteenth District

Patel v. Hussain, 14-14-00459-CV (Tex.App. Dist.14 01/21/2016)

A jury found in the plaintiff’s favor on her claims for intentional infliction of emotional distress, intrusion on seclusion, public disclosure of private facts and defamation. Guidry does not hold that a party asserting an affirmative defense waives error in the judgment when: 1. the jury answered "yes" for an affirmative defense; 2. the damages question did not condition an answer on a "no" finding of the affirmative defense; and 3. the jury answered the damages question. A jury's finding of substantial truth precludes liability for a defamation claim. Durban is not followed; because the defendant’s conduct invaded the plaintiff’s legally protected privacy interest under her claims for intrusion on seclusion and public disclosure of private facts, a cause of action alleging intentional infliciton of emotional distress is unavailable. The trial court’s judgment is affirmed as modified. Patel v. Hussain, Houston’s 14th Court of Appeals, No. 14-14-00459-CV, 01/21/2016.

14-14-00459-CV
SHARON MCCALLY JUSTICE

Court of Appeals of Texas, Fourteenth District

The University of Texas M.D. Anderson Cancer Center v. Jones, 14-15-00266-CV (Tex.App. Dist.14 01/21/2016)

The appellee alleges that she suffered injuries as a result of taking medication prescribed and dispensed to her through a smoking cessation study conducted by appellant. The appellant challenges the denial of its plea to the jurisdiction. For there to be a waiver of immunity, it is not a requirement that a governmental employee actually administer the drug — either dispensing or administering a drug is a use of tangible personal property for purposes of §101.021(2). A nexus between the prescription and the appellee’s injuries was established by evidence including expert testimony that her suicide attempt was likely caused by one of the prescribed drugs. The trial court’s order is affirmed. The University of Texas M.D. Anderson Cancer Center v. Jones, Houston’s 14th Court of Appeals, No. 14-15-00266-CV, 01/21/2016.

14-15-00266-CV
J. Brett Busby Justice

Court of Appeals of Texas, Fourth District, San Antonio

State v. Castorena, 04-14-00671-CR (Tex.App. Dist.4 01/20/2016)

The state appeals the trial court's order granting the appellee’s motion to quash the indictment. It was not necessary for the state in this case to allege each separate misapplication of fiduciary funds in the indictment because the offense in this case was aggregated misapplication of fiduciary funds - a single offense. There was no constitutional violation based on a lack of notice because the state filed a business records affidavit to which it attached 434 pages of cellular phone records upon which the state intended to base its prosecution - it was the State's contention that the appellee allegedly misapplied fiduciary funds by using union funds to pay for his personal phone calls. Because the state, in addition to alleging the appellee acted recklessly, alleged the appellee acted intentionally or knowingly, it was not required under Texas Code of Criminal Procedure article 21.15 to allege the act or acts relied upon to constitute recklessness. The trial court’s order is reversed and remanded. State v. Castorena, San Antonio Court of Appeals, No. 04-14-00671-CR, 01/20/2016.

04-14-00671-CR
MARIALYN BARNARD, JUSTICE

Court of Appeals of Texas, Ninth District, Beaumont

Booth v. Kontomitras, 09-15-00174-CV (Tex.App. Dist.9 01/21/2016)

The appellants appeal from the denial of their special appearances. Even if the appellants own property in Texas and have made trips to Texas, the contacts between the appellants and Texas have been sporadic and limited and fall short of the type of continuous, systematic, and substantial contacts necessary for a finding of general jurisdiction. A conclusory allegation that a nonresident defendant used a resident corporation "as a sham to perpetrate fraud" is insufficient to pierce the veil for jurisdictional purposes where the plaintiff does not plead or otherwise offer evidence of any facts to establish how a defendant allegedly used the corporation to perpetrate fraud. The trial court’s denial is reversed and remanded. Booth v. Kontomitras, Beaumont Court of Appeals, No. 09-15-00174-CV, 01/21/2016. http://www.texaslawyer.com/id=1202748287904

09-15-00174-CV
LEANNE JOHNSON Justice

Court of Appeals of Texas, Second District, Fort Worth

Savering v. City of Mansfield, 02-15-00034-CV (Tex.App. Dist.2 01/21/2016)

The appellants sued a city and home owners’ association over ownership of a piece of property. The city built a bridge connecting the property to a public park. The appellants challenge the denial of their appllication for a temporary injunction. The trial court had the discretion to believe or disbelieve any of the testimony, to determine that the additional pedestrian access provided by the bridge — when the neighborhood had already had a pedestrian access point that an appellant was aware of when she bought her home — did not constitute irreparable injury or extreme hardship, and to conclude that the appellants had not made a clear and compelling presentation of extreme necessity or hardship. Savering v. City of Mansfield, Fort Worth Court of Appeals, No. 02-15-00034-CV. 01/21/2016.

02-15-00034-CV
BONNIE SUDDERTH JUSTICE

Court of Appeals of Texas, Second District, Fort Worth

State v. Swan, 02-14-00416-CR (Tex.App. Dist.2 01/21/2016)

The trial court granted the appellee's motion to suppress the results of her blood alcohol test. Villarreal and other decisions foreclose the state's argument that the nonconsensual and warrantless search and seizure of appellee's blood, which was conducted under Texas Transportation Code §724.012 and without facts supporting an independent exception to the warrant requirement, did not violate appellee's rights under the Fourth Amendment. The officer’s good faith belief in the validity of the law does not overcome the exclusionary rule. The trial court’s order is affirmed. State v. Swan, Fort Worth Court of Appeals, No. 02-14-00416-CR, 01/21/2016.

02-14-00416-CR
TERRIE LIVINGSTON CHIEF JUSTICE

Court of Appeals of Texas, Seventh District, Amarillo

Bezerra v. State, 07-15-00018-CR (Tex.App. Dist.7 01/14/2016)

The appellant challenges, inter alia, the admission of evidence of alleged extraneous sex offenses. Nothing within Texas Code of Criminal Procedure article 38.37 §2, impermissibly lessens the state's burden of proving every element of the offense beyond a reasonable doubt and, as such, does not violate the appellant’s due process rights. Evidence that appellant had allegedly sexually assaulted his adopted daughter is probative that his actions toward the complainants were committed with intent to arouse or gratify his sexual desire. The trial court’s judgment is affirmed. Bezerra v. State, Amarillo Court of Appeals, No. 07-15-00018-CR, 01/14/2016.

07-15-00018-CR
MACKEY K. HANCOCK JUSTICE.

Court of Appeals of Texas, Seventh District, Amarillo

Valencia v. State, 07-14-00103-CR (Tex.App. Dist.7 01/21/2016)

The jury found the appellant guilty of alleged felony murder of a person who died of four gunshot wounds. DNA evidence found on the firearm did not connect the appellant with the shooting. Another person’s DNA was found on the firearm, and the defense alleged that this person was the shooter. The DNA evidence did not require the jury to harbor a reasonable doubt as to appellant's identity as the shooter. The trial court’s judgment is affirmed. Valencia v. State, 07-14-00103-CR (Tex.App. Dist.7 01/21/2016)

07-14-00103-CR
James T. Campbell Justice

Court of Appeals of Texas, Sixth District, Texarkana

State Best Interest and Protection of H.S., 06-15-00105-CV (Tex.App. Dist.6 01/22/2016)

The trial court issued an order authorizing the administration of psychoactive drugs to the appellant. The evidence supporting the trial court’s Texas Health & Safety Code §574.034(a)(2)(C) findings also supports the trial court’s conclustion that the appellant lacks the capacity to make a decision regarding the administration of the proposed medication. The trial court’s judgment is affirmed. State Best Interest and Protection of H.S., Texarkana Court of Appeals, No. 06-15-00105-CV, 01/22/2016.

06-15-00105-CV
JOSH R. MORRISS, III CHIEF JUSTICE.

Court of Appeals of Texas, Sixth District, Texarkana

In re Meyer, 06-15-00180-CR (Tex.App. Dist.6 01/14/2016)

Petitioner asks for a writ of mandamus compelling the lower courts and the district attorney to address the question of jurisdiction. The courts of appeals do not have jurisdiction to issue a writ of mandamus against a justice of the peace or a district attorney under Texas Government Code §22.221(b). Because the definition of “county court” given in §21.009(1) applies when interpreting §22.221(b), and because that definition describes only the constitutional county court, the court of appeals’ has jurisdiction to issue a writ of mandamus against a constitutional county court, not a statutory county court. The petition is dismissed for want of jurisdiction. In re Meyer, Texarkana Court of Appeals, No. 06-15-00180-CR, 01/14/2016.

06-15-00180-CR
RALPH K. BURGESS JUSTICE

Court of Appeals of Texas, Sixth District, Texarkana

Stewart v. State, 06-15-00120-CR (Tex.App. Dist.6 01/22/2016)

The appellant challenges the jury's finding that the appellant entered a metal shop on a rural property with the intent to commit theft. The jury heard that the appellant had approached a remote cabin at night and attempted to open the door. He failed to leave the property, even after being warned to do so at gunpoint. The evidence at trial showed that he entered the shop and rummaged through it, removing items and exiting the shop with a bag that looked like a bank deposit bag. The trial court’s judgment is affirmed. Stewart v. State, Texarkana Court of Appeals, No. 06-15-00120-CR, 01/22/2016.

06-15-00120-CR
Ralph Burgess Justice

Court of Appeals of Texas, Sixth District, Texarkana

State Best Interest and Protection of H.S., 06-15-00104-CV (Tex.App. Dist.6 01/22/2016)

The appellant challenges the trial court's order requiring her to undergo temporary mental health treatment at a hospital. The appellant’s testimony constituted an overt act demonstrating 1. that her mental distress is severe and abnormal, 2. that she has experienced substantial mental deterioration of her ability to provide for her health or safety, and 3. her inability to make a rational and informed decision as to whether or not to submit to mental health treatment. The trial court’s order is affirmed. State Best Interest and Protection of H.S., Texarkana Court of Appeals, No. 06-15-00104-CV, 01/22/2016.

06-15-00104-CV
RALPH BURGESS JUSTICE.

Court of Appeals of Texas, Sixth District, Texarkana

Moorhead v. State, 06-15-00083-CR (Tex.App. Dist.6 01/21/2016)

The appellant appeals his conviction for alleged evading arrest, asserting that his sentence is improper because this offense was only a state jail felony and that the state gave him inadequate notice of its intent to seek enhancement. Evading arrest with a motor vehicle is a third degree felony. When the state proved a prior third degree felony conviction, the appellant was susceptible to a second degree felony range of punishment, not less than two and not more than 20 years. The sentence of 15 years for evading arrest or detention with a motor vehicle was within the allowed, enhanced range of punishment. The appellant was sufficiently on notice the state would seek a deadly-weapon finding on the allegation of evading arrest with a vehicle. While a second notice, filed subsequent to the indictment, did not specify to which count it pertained, the indictment specifically stated a deadly-weapon allegation as to count I, aggravated assault. Both counts arose from the same event. The trial court’s judgment is affirmed. Moorhead v. State, Texarkana Court of Appeals, No. 06-15-00083-CR, 01/21/2016.

06-15-00083-CR
JOSH R. MORRISS, III CHIEF JUSTICE.

Court of Appeals of Texas, Sixth District, Texarkana

Ayers v. State, 06-15-00156-CR (Tex.App. Dist.6 01/14/2016)

During a hearing on community supervision, the appellant and the state requested the trial court to review a letter that the defendant had written to the trial court and which had been filed with the clerk. The appellant contends that because the letter was not formally admitted into evidence at the punishment hearing, the state argued outside of the evidence in referencing the letter during closing argument. The appellant was required to object to the state's closing argument in order to preserve this issue for appellate review. Being able to present the appellant’s argument without subjecting himself to the perils of cross-examination appears to be sound trial strategy, and a strategy endorsed by the appellant; the appellant’s inneffective assistance argument fails. The trial court’s judgment is affirmed. Ayers v. State, Texarkana Court of Appeals, No. 06-15-00156-CR, 01/14/2016.

06-15-00156-CR
Bailey C. Moseley Justice

Court of Appeals of Texas, Sixth District, Texarkana

Alex v. State, 06-15-00054-CR (Tex.App. Dist.6 01/08/2016)

The appellant was convicted of alleged burglary. She argues that the evidence is legally insufficient to prove that she entered the building, a fast food restaurant, without the effective consent of the owner. The evidence established that the appellant was a former employee of the restaurant, and, further, that former employees who have been terminated do not have consent to enter the restaurant while it is closed. The trial court’s judgment is affirmed. Alex v. State, Texarkana Court of Appeals, No. 06-15-00054-CR, 01/08/2016.

06-15-00054-CR
RALPH K. BURGESS JUSTICE.

Court of Appeals of Texas, Sixth District, Texarkana

In re J.K.V., 06-15-00063-CV (Tex.App. Dist.6 01/22/2016)

The appellant challenges the trial court’s best-interest finding terminating her parental rights to a child. Due to the young age of the child, his desire cannot be determined. The testimony indicates, however, that the child was not bonded to the appellant, that he had been living with his foster family, and that he was being well cared for. The trial court could infer that the child would prefer to remain in the environment of the foster home. The trial court’s judgment is affirmed. In re J.K.V., Texarkana Court of Appeals, No. 06-15-00063-CV, 01/22/2016.

06-15-00063-CV
Bailey C. Moseley Justice

Court of Appeals of Texas, Tenth District

United States Invention Corp. v. Betts, 10-14-00281-CV (Tex.App. Dist.10 01/14/2016)

The appellant filed suit, seeking, among other things, a declaration that it had an implied easement appurtenant or, alternatively, an express easement across appellees' 5.508-acre tract to build a road to appellant's 16.34-acre tract. The trial court granted appellees' motion for a directed verdict, and appellees proceeded to present their counterclaims. At the close of the evidence, the trial court submitted the case to the jury, which found appellant liable to appellees for trespass to realty. At trial, appellant presented evidence of unity of ownership between the dominant and servient estates just prior to a 1915 partition judgment. However, appellant produced no probative evidence that the alleged road that constituted the easement existed and was in apparent use in 1915, or that the road had been continuously used since the 1915 partition. The trial court’s judgment is affirmed. United States Invention Corp. v. Betts, Waco Court of Appeals, No. 10-14-00281-CV, 01/14/2016.

10-14-00281-CV
AL SCOGGINS Justice

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

Entravision Communications Corporation v. Salinas, 13-13-00702-CV (Tex.App. Dist.13 01/22/2016)

The appellant challenges the denial of a motion to dismiss filed pursuant to the Texas Citizens Participation Act. The plaintiff, a mayor, brought suit relating to a Facebook post that alleged that his father “Was Arrested with a Very Important Sum of Money.” The communication at issue is in connection with a matter of public concern — specifically that it implicated concerns of community well-being or that it involved issues related to a public official or public figure. The placement of a photograph below the article arguably emphasized the father-son relationship, but when viewed with the language of the post, it did not create the impression to a person of ordinary intelligence that the mayor was involved in criminal wrongdoings. As to the mayor, the statement is not defamatory as a matter of law. The trial court’s order is reversed and remanded. Entravision Communications Corporation v. Salinas, Corpus Christi Court of Appeals, No. 13-13-00702-CV, 01/22/2016.

13-13-00702-CV
NELDA V. RODRIGUEZ, JUSTICE.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

Double Diamond-Delaware, Inc. v. Alfonso, 13-14-00324-CV (Tex.App. Dist.13 01/14/2016)

A group of property owners filed a federal class-action suit against a real estate developer alleging, among other things, violations of the Racketeer Influenced and Corrupt Organizations Act. The property owners allege the developer failed to disclose that it allegedly utilizes control over a property owner’s association to cause the association to act in favor of the developer. The developer appeals the denial of its motion to transfer venue. The specific provisions in Texas Rule of Civil Procedure 88 allow a party to use its own discovery responses in the context of a venue determination. No individual trial plaintiff put forth prima facie evidence establishing a link between the essential elements of his or her causes of action and Hidalgo County. The appellant put forth prima facie evidence supporting venue in Dallas County, the location of the appellant’s principal place of business, pursuant to Texas Civil Practice and Remedies Code §15.002(a)(3). The trial court’s judgment is reversed and remanded with instructions. Double Diamond-Delaware, Inc. v. Alfonso, Corpus Christi Court of Appeals, No. 13-14-00324-CV, 13 01/14/2016.

13-14-00324-CV
NELDA V. RODRIGUEZ Justice

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

Walters v. Allways Auto Group, Ltd., 13-15-00329-CV (Tex.App. Dist.13 01/14/2016)

This case arises out an automobile accident. The plaintiff alleges that the defendant’s loan of a vehicle to the other driver was negligent entrustment. The defendant, the appellant, argued that the driver’s actions served as an unforeseeable superseding cause that removed it from the chain of proximate causation as a matter of law. Because the plaintiff must make some showing that the owner's negligent entrustment proximately caused the collision, a plaintiff's claim is susceptible to attack on the grounds of superseding cause, which operates to destroy the element of proximate causation. The plaintiff has not introduced evidence showing that an alleged DWI collision was an extraordinary rather than normal consequence of lending a vehicle to a man who was allegedly intoxicated at the time, who appeared to have had his license revoked, and who was unable to present the dealership with a valid license when purchasing a vehicle to replace the one he had totaled in a recent alleged DWI collision. The trial court’s summary judgment is reversed and remanded. Walters v. Allways Auto Group, Ltd., Corpus Christi Court of Appeals, No. 13-15-00329-CV, 01/14/2016.

13-15-00329-CV
NELDA V. RODRIGUEZ Justice

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

Texas Campaign For Environment v. Partners Dewatering International, LLC, 13-14-00656-CV (Tex.App. Dist.13 01/21/2016)

A grease and grit trap processing business filed suit against a non-profit environmental group, alleging tortious interference with a contract and business disparagement. This is an interlocutory appeal from the denial of the motion to dismiss filed pursuant to the Texas Citizens Participation Act. Because the contract contemplated, in part, the provision of a service to a city, the city was not immune from suit, and the appellant’s argument that it could not have interferred with the contract as a matter of law fails. The appellee established by clear and specific evidence a prima facie case for the intentional interference element of its tortious interference claim: amongst other actions in opposition to the appellee’s alleged plan to use the city’s wastewater treatment plant, the appellant appeared at public meetings, at times taking control of the meeting, and instructed the public on how to participate effectively at the meetings. An actual malice determination in the context of a disparagement claim focuses not on what the defendant should have done or did not do. The appellee has not shown clear and specific proof that appellants made the allegedly defamatory statements with malice, therefore it did not sustain its burden of proof on the malice element of its business disparagement claim. The trial court’s denial is affirmed in part, reversed in part, and remanded. Texas Campaign For Environment v. Partners Dewatering International, LLC, Corpus Christi Court of Appeals, No. 13-14-00656-CV, 01/21/2016.

13-14-00656-CV
NELDA V. RODRIGUEZ JUSTICE

United States Court of Appeals, Fifth Circuit

United States v. Weast, 14-11253 (5th Cir. 01/26/2016)

The appellant challenges his conviction for alleged receipt and possession of child pornography. There is no reasonable expectation of privacy in IP addresses and peer-to-peer-shared files that are widely and voluntarily disseminated in the course of normal use of networked devices and peer-to-peer software. The trial judge may terminate self-representation by a defendant who, pre-trial, deliberately engages in serious and obstructionist misconduct; there is no requirement that he be allowed to actually disrupt trial before self-representation is terminated. The district court’s judgment is affirmed. United States v. Weast, 5th U.S. Circuit Court of Appeals, No. 14-11253, 01/26/2016.

14-11253
PATRICK E. HIGGINBOTHAM, CIRCUIT JUDGE.

United States Court of Appeals, Fifth Circuit

United States v. Gluk, 14-51012 (5th Cir. 01/25/2016)

The appellants challenge their convictions for alleged securities fraud. The district judge excluded evidence of a law firm’s investigation and an SEC investigation. The judge overruled objections from the defendants and allowed testimony about uncharged alleged medical fraud at the company. The investigative reports are likely to have a proper and appropriate influence on a jury's deliberations by providing it with expert assistance regarding the plausibility of expert testimony. Their exclusion was harmful error. The district court also erred by failing to properly police the line between proper and improper evidence; it should have been careful to prevent the government from dwelling on the salacious details of the company’s alleged business practices that could not be charged to the defendants. The convictions are vacated and remanded. United States v. Gluk, 5th U.S. Circuit Court of Appeals, No. 14-51012, 01/25/2016.

14-51012
E. GRADY JOLLY, CIRCUIT JUDGE.

United States Court of Appeals, Fifth Circuit

Hartfield v. Osborne, 15-20275 (5th Cir. 01/20/2016)

The petitioner-appellant filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2241. 28 U.S.C. §2254 governs a habeas application when the petitioner is currently in custody pursuant to a state court judgment, but was not at the time of filing. Although the petitioner initially filed a pretrial federal habeas petition under §2241, intervening events have led to the petitioner’s being in custody pursuant to a state court judgment. Because his claim is now properly characterized as an attack on the validity of his conviction and sentence, his petition, like the petition inYellowbear, must be brought under §2254. The appeal is dismissed without affecting the petitioner’s ability to proceed through the state court process. The appellant preserves his ability to file a federal habeas petition under §2254. Hartfield v. Osborne, 5th U.S. Circuit Court of Appeals, No. 15-20275, 01/20/2016.

15-20275
KING, Circuit Judge.

United States Court of Appeals, Fifth Circuit

Seahawk Liquidating Trust v. Certain Underwriters At Lloyds London, 15-30324 (5th Cir. 01/19/2016)

The appellees, defendant-insurers, rejected the appellant’s $16,969,860 claim to cover the cost of repairs to a drilling rig and the loss of a drilling contract. The rig sustained damages in rough seas due to a faulty jack-up system. There were two occurrences: a February storm and a July storm. When an occurrence is technically defined to include a series of losses arising from the same event, it includes only those losses proximately caused by that event. The court did not clearly err in finding that the February storm was not the proximate cause of the sequence of losses following the July storm. The appellant failed to meet its burden under the concurrent-cause doctrine because it presented no evidence to apportion damages between covered and excluded perils; the district court properly denied the claim for the loss of the drilling contract. The district court’s judgment is affirmed. Seahawk Liquidating Trust v. Certain Underwriters At Lloyds London, 5th U.S. Circuit Court of Appeals, No. 15-30324, 01/19/2016.

15-30324
JERRY E. SMITH, CIRCUIT JUDGE.

United States Court of Appeals, Fifth Circuit

United States v. Cardenas, 15-50125 (5th Cir. 01/19/2016)

The appellant argues that the district court should have instructed the jury that, to find him guilty of violations of 18 U.S.C. §554(a) (smuggling from the United States), it must find that he violated 22 U.S.C. §2778(c) (control of arms exports and imports), with the specific intent to violate the law. To establish an offense under §554(a), the government is required to prove only that the defendant knew he was dealing with ammunition that was intended for export and that the exportation was illegal. The government is not required to prove both that the defendant knew that the ammunition was an item for which an export license was required and intended to export the weapons without the license. The district court’s judgment is affirmed. United States v. Cardenas, 5th U.S. Circuit Court of Appeals, No. 15-50125, 01/19/2016.

15-50125
PER CURIAM

United States Court of Appeals, Fifth Circuit

Weber v. PACT XPP Technologies, AG, 15-40432 (5th Cir. 01/26/2016)

The appellant challenges a judgment of dismissal, without prejudice, based on forum non conveniens. The dispute revolves around a compensation agreement. The balance of factors favors application of German law. The contract is in the German language, it governs the compensation of a German-born businessman by a German company for his service on its supervisory board of directors, specifying that performance would be in Munich and contemplating at least permissive jurisdiction in the German courts for disputes arising under the contract. The forum selection clause is mandatory and enforceable. The judgment of dismissal without prejudice is affirmed. Weber v. PACT XPP Technologies AG, 5th U.S. Circuit Court of Appeals, No. 15-40432, 01/26/2016.

15-40432
JERRY E. SMITH, CIRCUIT JUDGE.

United States Court of Appeals, Fifth Circuit

United States v. Thompson, 15-40370 (5th Cir. 01/21/2016)

The defendant appeals his conviction for alleged failure to register as a sex offender. The Sex Offender Registration & Notification Act is constitutional under the Necessary and Proper Clause, and the appellant’s conviction may stand even though he never served in the military. The conviction is affirmed. United States v. Thompson, 5th U.S. Circuit Court of Appeals, No. 15-40370, 01/21/2016.

15-40370
W. EUGENE DAVIS, CIRCUIT JUDGE

United States Court of Appeals, Fifth Circuit

Jenkins v. C.R.E.S. Management, L.L.C., 14-20609 (5th Cir. 01/26/2016)

The appellant alleged that an apartment owner had a duty to protect him from unreasonable and foreseeable harm due to the criminal acts of third parties. The district court found that the apartment complex's criminal history was insufficient to render foreseeable the assault against the appellant. The district court did not err in limiting its review to relevant crimes. The district court erred in excluding burglaries as irrelevant to the foreseeability analysis. Residential burglaries, by their very nature, may suggest the foreseeability of violent crime. The district court’s judgment is reversed and remanded. Jenkins v. C.R.E.S. Management, L.L.C., 5th U.S. Circuit Court of Appeals, No. 14-20609, 01/26/2016.

14-20609
PRISCILLA R. OWEN, CIRCUIT JUDGE.

United States Court of Appeals, Fifth Circuit

In re Krueger, 14-11355 (5th Cir. 01/19/2016)

The debtor’s chapter 7 bankruptcy case was dismissed pursuant to 11 U.S.C. §707(a) for the debtor's alleged bad faith conduct constituting cause for dismissal. The bankruptcy rules permitted the 11 U.S.C. § 707(a) dismissal motion to be pursued as a contested motion — not as an adversary proceeding — and the bankruptcy court conducted the proceeding appropriately. Section 707(a) is to be read expansively; a debtor's bad faith in the bankruptcy process can serve as the basis of a dismissal for cause even if the bad faith conduct is arguably encompassed by other provisions of the Bankruptcy Code. The judgments of the bankruptcy court and the district court are affirmed. In re Krueger, 5th U.S. 14-11355 (5th Cir. 01/19/2016)

14-11355
EDITH H. JONES, CIRCUIT JUDGE.

United States Court of Appeals, Fifth Circuit

Sanderson Farms, Inc. v. Perez, 15-60215 (5th Cir. 01/22/2016)

The appellant was found to be in violation of 29 C.F.R. §1910.219(c)(2)(i) because the arbor of a chicken-cutting machine was unguarded horizontal-shafting of a mechanical-power-transmission apparatus less than seven feet from the ground. A maintenance program that fails to recognize or remedy hazardous conditions can be a basis for knowledge. The supervisors’ knowledge of the violation may be imputed to the company. Safety regulations are preventative, not reactionary, and the absence of injury is not evidence of the absence of danger. The petition for review is denied as to the unguarded arbor. The ALJ erred when applying 29 C.F.R. §1910.219(c)(4)(i) instead of 29 C.F.R. §1910.219(h)(1) to a protruding key, therefore the petition for review is granted as to the projecting key. Sanderson Farms, Inc. v. Perez, 5th U.S. Circuit Court of Appeals, No. 15-60215, 01/22/2016.

15-60215
JAMES E. GRAVES, JR., Circuit Judge

United States Court of Appeals, Fifth Circuit

United States v. Tilford, 15-10352 (5th Cir. 01/19/2016)

The district court ordered the appellant’s employer to withhold the portion of her earnings that accrued prior to the date of the appellant’s divorce. Before their divorce, the appellant’s spouse pleaded guilty to failing to file a tax return and agreed to pay restitution. Internal Revenue Code § 66(c) provides tax liability relief for innocent spouses. Criminal restitution, even as a penalty for a failure to pay taxes, is not a tax, therefore the innocent spouse provision does not apply. The district court’s denial of the appellant’s motion to quash is affirmed. United States v. Tilford, 5th U.S. Circuit Court of Appeals, No. 15-10352, 01/19/2016.

15-10352
PATRICK E. HIGGINBOTHAM, CIRCUIT JUDGE.

Court of Appeals of Texas, Eighth District, El Paso

In re Perez, 08-15-00381-CV (Tex.App. Dist.8 01/11/2016)

The petitioner requests a writ of mandamus compelling the removal of a person from the Democratic primary ballot for El Paso County Commissioner Precinct 3. A candidate for the office of El Paso County Commissioner is required to both reside within and be a registered voter in the corresponding precinct in order to satisfy the eligibility requirements of Texas Election Code §141.001(a)(5) and (a)(6), respectively. Under §1.005(16), the phrase "registered voter" means a person registered to vote in this state whose registration is effective. The writ of mandamus is conditionally granted as to one official, who is ordered to remove the would-be candidate’s name from the ballot. In re Perez, El Paso Court of Appeals, No. 08-15-00381-CV, 01/11/2016.

08-15-00381-CV
ANN CRAWFORD McCLURE, Chief Justice.

Court of Appeals of Texas, Eighth District, El Paso

Quiroz v. Llamas-Soforo, 08-14-00073-CV (Tex.App. Dist.8 01/06/2016)

The plaintiff in this alleged medical malpractice case appeals a take-nothing verdict on the jury’s finding of no negligence. Even expert witnesses are subject to the jury's sole role as the judges of credibility and the weight to be given their testimony. The defendant’s own testimony was sufficient to establish the applicable standard of care and that he was not negligent. The trial court’s judgment is affirmed. Quiroz v. Llamas-Soforo, 08-14-00073-CV (Tex.App. Dist.8 01/06/2016)

08-14-00073-CV
STEVEN L. HUGHES, Justice

Court of Appeals of Texas, Fifth District, Dallas

In re Moore, 05-14-01173-CV (Tex.App. Dist.5 01/07/2016)

Father appeals orders modifying child support and a requirement that he pay Mother's appellate attorney's fees and expenses. Notwithstanding Texas Family Code §109.001(c), an appellate court has jurisdiction to review a §109.001 order in conjunction with the pending appeal from the final judgment. Because the order to pay attorney’s fees is conditional, Father has an adequate remedy on appeal; therefore, mandamus is not appropriate. Specific testimony about the total number of hours required or the amount of hours required for each service is not necessary; a reasonable inference from the evidence is that the trial court was aware of the proceedings in the case and, as a family law court, was familiar with the rates and reasonableness of the attorney's fees. The trial court’s orders are affirmed. In re Moore, Dallas Court of Appeals, No. 05-14-01173-CV, 01/07/2016.

05-14-01173-CV
ELIZABETH LANG-MIERS JUSTICE

Court of Appeals of Texas, First District

Ex parte Bowman, 01-13-01045-CR (Tex.App. Dist.14 01/12/2016)

The appellant challenges the trial court's order denying his application for a writ of habeas corpus. Standing alone, the mere fact that the facts of appellant's case are more than 10 years old does not serve to establish material prejudice to the state in retrying its case against appellant. Even when the state presents some proof of prejudice, a court still must then weigh that prejudice against any equitable considerations that militate in favor of granting habeas relief. It was not reasonable for trial counsel to decide not to impeach an officer’s testimony and argue that he lacked credibility or had an improper motive to arrest appellant without actually investigating the officer’s alleged overtime-pay abuse by obtaining his payroll records; but for the deficient performance of trial counsel, there is a reasonable probability that the outcome of the trial would have been different. The trial court’s denial is reversed and remanded, and the writ is granted. Ex parte Bowman, Houston’s 1st Court of Appeals, No. 01-13-01045-CR, 01/12/2016.

01-13-01045-CR
TERRY JENNINGS, JUSTICE.

Court of Appeals of Texas, First District

Bautista v. Trinidad Drilling Ltd., 01-14-00892-CV (Tex.App. Dist.14 01/12/2016)

The trial court granted the special appearance of the appellee, a Canadian corporation. While the appellants claim that a remedial plan set into place by Trinidad Ltd. after the accident was evidence of its specific control over the rig, they do not claim that it exercised any authority over this aspect of safety before the accident. Because the appellants have not alleged specific control before the accident, there are insufficient jurisdictional facts to establish specific control over a Texas premises which would give rise to liability. Regarding general jurisdiction, the appellants' allegations and the record evidence do not support a finding that the appellee’s contacts with Texas were so substantial that it was essentially at home in Texas. The trial court’s order sustaining the special appearance is affirmed. Bautista v. Trinidad Drilling Ltd., 01-14-00892-CV (Tex.App. Dist.14 01/12/2016)

01-14-00892-CV
MICHAEL MASSENGALE, JUSTICE.

Court of Appeals of Texas, First District

Koch v. State, 01-14-00248-CR (Tex.App. Dist.14 01/12/2016)

A jury convicted the appellant of the alleged Class B misdemeanor offense of driving while intoxicated-second offense. A police officer told the appellant when she placed him in the backseat of her patrol car that he was not under arrest, and evidence in the record supports this finding and also demonstrates that the officer took these actions to keep appellant safe and secure while she and another officer investigated the accident scene. The trial court did not abuse its discretion when it concluded that appellant's encounter with the officers remained an investigatory detention and was not converted to an arrest upon his being placed in handcuffs in the back of a patrol car. Therefore, the officer was not required to read Miranda warnings before continuing the investigation. The trial court’s judgment is affirmed. Koch v. State, Houston’s 1st Court of Appeals, No. 01-14-00248-CR, 01/12/2016.

01-14-00248-CR
EVELYN V. KEYES JUSTICE.

Court of Appeals of Texas, Fourteenth District

PNS Stores, Inc. v. Munguia, 14-14-00319-CV (Tex.App. Dist.14 01/12/2016)

The appellant, a retail store, challenges the award of $1,048,500 in damages following a jury trial on the appellee’s suit for injuries sustained when he was hit on the head by two bottles of deck wash that fell from a shelf at a store where he was shopping with his son. Although caution is warranted in reviewing claims for physical impairment, there was no double recovery here in awarding damages for past and future physical impairment. The evidence is legally and factually sufficient to support the portions of the judgment awarding the appellee damages for past physical impairment, future physical impairment, past physical pain and mental anguish, and future physical pain and mental anguish. Because the appellee timely remitted $3,583, the trial court's judgment is affirmed as modified. PNS Stores, Inc. v. Munguia, Houston’s 14th Court of Appeals, No. 14-14-00319-CV, 01/12/2016.

14-14-00319-CV
KEN WISE JUSTICE

Court of Appeals of Texas, Fourteenth District

Silberstein v. Trustmark National Bank, 14-14-00660-CV (Tex.App. Dist.14 01/07/2016)

The appellants challenge the jury's determination of the fair market value of 10 homes that were sold at foreclosure sales by appellee. Using involuntary sales in determining the market value of six of the properties under the comparable sales approach provides no support to an expert’s opinions regarding their fair market value under that approach. The trial court’s judgment is reversed and remanded for new trial. Silberstein v. Trustmark National Bank, Houston’s 14th Court of Appeals, No. 14-14-00660-CV, 01/07/2016.

14-14-00660-CV
SHARON MCCALLY JUSTICE

Court of Appeals of Texas, Fourteenth District

Alattar v. Kay Holdings, Inc., 14-14-00792-CV (Tex.App. Dist.14 01/12/2016)

The appellant challenges the grant of the appellee’s special appearance. The appellee did not present evidence that a subscription agreement, admittedly signed by its representative, did not include a clause consenting to personal jurisdiction in Texas. That the corporate representative’s signature on the agreement is electronic is of no moment. The representative’s failure to read the subscription agreement is not a basis to set aside the consent to jurisdiction. The trial court’s order is reversed and remanded. Alattar v. Kay Holdings, Inc., Houston’s 14th Court of Appeals, No. 14-14-00792-CV, 01/12/2016.

14-14-00792-CV
Martha Hill Jamison Justice

Court of Appeals of Texas, Fourteenth District

Johnson v. Oxy USA, Inc., 14-14-00831-CV (Tex.App. Dist.14 01/07/2016)

The appellant appeals the trial court's order granting the appellees Joint Motion for Summary Judgment and Partial Plea to the Jurisdiction. Pursuant to Texas Labor Code §61.061(c), an order from the wage claim appeal tribunal becomes final 14 days after the day it is mailed. The TWC advised the appellant that "[t]he question of whether the employer properly interpreted their policy on reimbursed educational expenses versus a business expense is a question for a different forum." Because this question goes to the heart of the appellant’s breach of contract and declaratory judgment claims, res judicata does not bar those claims. The trial court’s judgment is affirmed in part and reversed in part and remanded. Johnson v. Oxy USA, Inc., Houston’s 14th Court of Appeals, No. 14-14-00831-CV, 01/07/2016.

14-14-00831-CV
KEN WISE JUSTICE.

Court of Appeals of Texas, Fourteenth District

Hoist Liftruck Mfg., Inc. v. Carruth-Doggett, Inc., 14-15-00139-CV (Tex.App. Dist.14 01/12/2016)

The appellant challenges the trial court's order granting the temporary injunction. Although the decision whether to grant or deny a request for a temporary injunction is committed to the sound discretion of the trial court, once the court decides to grant injunctive relief, the order itself must contain the reasons for its issuance. The trial court's temporary injunction order does not state a reason for its issuance and does not address why irreparable injury will result absent an injunction. A trial court abuses its discretion if it issues a temporary injunction order that does not comply with Rule 683. The temporary injunction order is ordered void and dissolved. The case is remanded. Hoist Liftruck Mfg. Inc. v. Carruth-Doggett Inc., Houston’s 14th Court of Appeals, No. 14-15-00139-CV, 01/12/2016.

14-15-00139-CV
J. Brett Busby Justice

Court of Appeals of Texas, Fourteenth District

Ward v. Lamar University and Texas State University System, 14-14-00097-CV (Tex.App. Dist.14 01/12/2016)

The appellant sued a state university and the university system alleging whistleblower act violations and violations under the Texas constitution. The appellant testified that she lost her procurement duties, which were the duties that had allowed her to discover the transactions she reported. Removing the very authority that allowed a whistleblower to find wrongdoing in the first place is some evidence of an action that would likely dissuade a reasonable, similarly situated worker from making a report under the Act. With respect to the system, unfulfilled threats to fire do not constitute actionable adverse employment decisions. The parties have not addressed — either in the trial court or on appeal — whether Texas courts recognize a claim under the Texas Constitution to enjoin an adverse employment action taken in retaliation for the exercise of free speech rights, nor have they addressed whether appellees are immune from suit on such a claim. The trial court should have allowed the parties to develop these issues through the adversary process. The trial court’s dismissal is affirmed in part, and reversed and remanded in part. Ward v. Lamar University and Texas State University System, Houston’s 14th Court of Appeals, No. 14-14-00097-CV, 01/12/2016.

14-14-00097-CV
J. BRETT BUSBY JUSTICE.

Court of Appeals of Texas, Fourteenth District

Lewis v. State, 14-14-00779-CR (Tex.App. Dist.14 01/07/2016)

The trial court denied appellant's request to represent himself after observing appellant's allegedly confrontational and obstructive behavior. The appellant is allegedly one of a loosely-formed group of citizens who believe that they are sovereign individuals — so-called "sovereign citizens" — beyond the reach of any criminal court. The trial court did not abuse its discretion in determining that appellant's behavior demonstrated an attempt at calculated obstruction and delay, and not an earnest attempt to act in his own defense. A finding of competence to stand trial does not automatically qualify a defendant to also conduct his own defense; neither does a denial of self-representation disqualify a defendant from being found competent to stand trial. The trial court’s judgment is affirmed. Lewis v. State, Houston’s 14th Court of Appeals, No. 14-14-00779-CR, 01/07/2016.

14-14-00779-CR
MARC W. BROWN JUSTICE

Court of Appeals of Texas, Fourth District, San Antonio

In re E.K.C., 04-15-00457-CV (Tex.App. Dist.4 01/13/2016)

The appellant challenges the trial court's finding that termination of his parental rights is in the best interest of the child. The Associate Judge's Report and Order was signed on June 1. Although not required, this order was signed as being adopted by the district judge on June 4, 2015. The appellant argues the appealable order is the formal, typewritten order that was signed on July 17. The Associate Judge's Report and Order signed June 1, 2015, is a final, appealable order. The notice of appeal, filed on July 17, was untimely. The appeal is dismissed. In re E.K.C., San Antonio Court of Appeals, No. 04-15-00457-CV, 01/13/2016.

04-15-00457-CV
Luz Elena D. Chapa, Justice

Court of Appeals of Texas, Fourth District, San Antonio

Donohue v. Dominguez, 04-15-00068-CV (Tex.App. Dist.4 01/13/2016)

The appellant challenges the dismissal of his claims against two police officers pursuant to Texas Tort Claims Act §101.106(f). Any civil claims brought for false imprisonment, assault, and aggravated assault are torts and are subject to the Texas Tort Claims Act. The appellant’s claims pursuant to the Texas Constitution do not exist apart from §101.106 of the Texas Tort Claims Act. The order of dismissal is affirmed. Donohue v. Dominguez, San Antonio Court of Appeals, No. 04-15-00068-CV, 01/13/2016.

04-15-00068-CV
KAREN ANGELINI, JUSTICE

Court of Appeals of Texas, Sixth District, Texarkana

In re M.C., 06-15-00064-CV (Tex.App. Dist.6 01/11/2016)

The appellant challenges the termination of her parental rights to three children. Because it exposes the child to the possibility that the parent may be impaired or imprisoned, alleged illegal drug use may support termination under Texas Family Code §161.001(b)(1)(E). The trial court’s judgment is affirmed. In re M.C., Texarkana Court of Appeals, No. 06-15-00064-CV, 01/11/2016.

06-15-00064-CV
BAILEY C. MOSELEY JUSTICE.

Court of Appeals of Texas, Sixth District, Texarkana

Alex v. State, 06-15-00054-CR (Tex.App. Dist.6 01/08/2016)

The appellant was convicted of burglary of a building. The state does not need to present direct evidence to establish the owner's lack of consent; rather, proof of lack of consent may be established through circumstantial evidence. The trial court’s judgment is affirmed. Alex v. State, Texarkana Court of Appeals, No. 06-15-00054-CR, 01/08/2016.

06-15-00054-CR
RALPH K. BURGESS JUSTICE.

Court of Appeals of Texas, Tenth District

Brock v. State, 10-14-00224-CR (Tex.App. Dist.10 01/07/2016)

The appellant challenges his conviction for the alleged offense of retaliation against a public servant. A plain reading of Texas Penal Code §36.06 (a)(1) and (a)(2) are alternative means of committing a §36.06 offense. The state was authorized to allege in a single count different means-namely, subsections (a)(1) and (a)(2)-for committing an offense under §36.06. Therefore, the indictment here, by alleging in one count that the appellant violated subsections (a)(1) and (a)(2), is not duplicitous. The trial court’s judgment is affirmed. Brock v. State, Waco Court of Appeals, No. 10-14-00224-CR, 01/07/2016.

10-14-00224-CR
AL SCOGGINS Justice

Court of Appeals of Texas, Third District, Austin

Robisheaux v. State, 03-14-00329-CR (Tex.App. Dist.3 01/07/2016)

The appellant argues that Texas Code of Criminal Procedure article 38.37 §2, authorizing the admission of evidence showing that the defendant allegedly has committed a separate sexual offense, is facially unconstitutional. The appellant has not demonstrated that the statute is facially unconstitutional because he has not shown that it operates unconstitutionally in all of its applications. The statute does not alter the amount of proof needed for conviction; its application here was not an ex post facto violation. The district court’s judgment is affirmed. Robisheaux v. State, Austin Court of Appeals, No. 03-14-00329-CR, 01/07/2016.

03-14-00329-CR
David Puryear, Justice

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

Miramar Petroleum, Inc. v. Cimarron Engineering, LLC., 13-15-00251-CV (Tex.App. Dist.13 01/07/2016)

The appellant contends that the trial court abused its discretion by granting the appellee’s motion to dismiss with prejudice because its "newly-filed action" was supported by a certificate of merit. Texas Civil Practice and Remedies Code §150.002(e) granting the trial court discretion to dismiss a complaint without prejudice reveals the Legislature's intent to allow a plaintiff to re-file a suit, not otherwise barred, in compliance with the statute. Therefore, the plaintiff, under the facts of this case, included a certificate of merit with its sixth amended petition in compliance with §150.002. The trial court’s judgment is reversed and remanded. Miramar Petroleum, Inc. v. Cimarron Engineering, LLC., Corpus Christi Court of Appeals, No. 13-15-00251-CV, 01/07/2016.

13-15-00251-CV
NELDA V. RODRIGUEZ JUSTICE.

Court of Appeals of Texas, Twelfth District, Tyler

East Texas Medical Center Gilmer v. Porter, 12-14-00220-CV (Tex.App. Dist.12 01/13/2016)

The appellant argues that the trial court was required to dismiss the plaintiff’s claim because it is a health care liability claim, and she failed to timely file an expert report. The alleged injury occurred when the plaintiff slipped on a wet substance while walking into the emergency room "walk area" seeking treatment. She was not yet a patient at the time she fell. There is nothing about the duty to keep an area free of fall hazards peculiar to a hospital that does not also apply to any business open to the public. The hospital has not shown how this general duty is related to its provision of health care under these facts. The record does not support the conclusion that the regulatory standards asserted by the hospital establish a substantive nexus between the provision of health care and the underlying facts of the plaintiff’s claim. The trial court’s judgment is affirmed. East Texas Medical Center Gilmer v. Porter, Tyler Court of Appeals, No. 12-14-00220-CV, 01/13/2016.

12-14-00220-CV
JAMES T. WORTHEN CHIEF JUSTICE

Court of Criminal Appeals of Texas

Marshall v. State, PD-0509-14, PD-0510-14 (Tex.Crim.App. 01/13/2016)

A jury convicted the defendant of felony assault against a family member. The court of appeals held the evidence legally sufficient but the omission of the words "bodily injury" from the jury charge's application paragraph egregiously harmed the defendant. Omitting "bodily injury" in the application paragraph did not cause egregious harm because the application paragraph required the jury to find a specific type of bodily injury: the impedance of normal breathing. Even though the alleged victim testified that she never lost consciousness and never was completely unable to breath, that is not required under bodily injury. The court of appeals’ judgment is reversed and the conviction is reinstated. Marshall v. State, Court of Criminal Appeals, No. PD-0509-14, 01/13/2016. http://www.texaslawyer.com/id=1202747327255

PD-0509-14, PD-0510-14
KEASLER, J.

Court of Criminal Appeals of Texas

Fernandez v. State, PD-0123-15 (Tex.Crim.App. 01/13/2016)

A justice of the peace, through his chief deputy clerk, booked an airline flight with a county credit card to attend a conference. After the justice of the peace fell ill, the ticket was cancelled and he received a voucher in his name for the same amount. On evidence that the justice of the peace used the voucher for private travel, he was convicted of alleged theft by a public servant by way of deception. Because the appellant did not use the airline voucher for county-approved travel, his silence was deceptive. This deception affected the judgment of the other party in the transaction — the county via the clerk — who conveyed the county's voucher number to appellant's son, relying on the impression initially created by appellant that the airline ticket purchased with county money would be used for county-approved travel. The court of appeals’ judgment, affirming the trial court, is affirmed. Fernandez v. State, Court of Criminal Appeals, No. PD-0123-15, 01/13/2016.

PD-0123-15
Keller, P.J.

Supreme Court of Texas

Sloan v. Law Office of Oscar C. Gonzalez, Inc., 14-1015 (Tex. 01/08/2016)

In her appellee's brief to the court of appeals, the plaintiff argued that an attorney and his law office are each jointly and severally liable for all damages, including those attributable to another attorney’s alleged actions, because the jury found that they were all engaged in a joint enterprise and joint venture. The court of appeals did not address the sufficiency of the evidence of a joint enterprise or joint venture, or the legal implications of those findings. The court of appeals erred by failing to address these issues, which are necessary to the disposition of the appeal because they determine the amount of damages that the court of appeals' judgment may assign to each respondent. The issue of whether Texas Civil Practice and Remedies Code Chapter 33's proportionate-responsibility scheme supersedes common law joint-venture and joint-enterprise theories for imposing joint and several liability is left for the court of appeals to address in the first instance. The court of appeals’ judgment is reversed and remanded. Sloan v. Law Office of Oscar C. Gonzalez, Inc., Texas Supreme Court, No. 14-1015 (Tex. 01/08/2016)

14-1015
PER CURIAM

Supreme Court of Texas

Ray Fischer and Corporate Tax Management, Inc. v. CTMI, L.L.C., 13-0977 (Tex. 01/08/2016)

The trial court found that portions of an asset-purchase agreement were unenforceable "agreements to agree." Material and essential terms are those that parties would reasonably regard as vitally important ingredients of their bargain. The material terms of a contract are determined on a case-by-case basis, and each contract should be considered separately to determine its material terms. The language providing that the parties "will have to mutually agree" on completion percentages does not render the pending-projects clause unenforceable because the clause contains all of the terms necessary for a court to enforce it. The court of appeals’ judgment is reversed and rendered. Ray Fischer and Corporate Tax Management, Inc. v. CTMI, L.L.C., 13-0977 (Tex. 01/08/2016).

13-0977
JEFFREY S. BOYD JUSTICE

Supreme Court of Texas

J&D Towing, LLC v. American Alternative Insurance Corp., 14-0574 (Tex. 01/08/2016)

The appellant challenges the judgment of the court of appeals, which held that Texas law distinguishes between partial destruction and total destruction of personal property, allowing loss-of-use damages for the former but not for the latter. The owner of personal property that has been totally destroyed may recover loss-of-use damages in addition to the fair market value of the property immediately before the injury. The court of appeals’ judgment is reversed and rendered. J&D Towing, LLC v. American Alternative Insurance Corp., Texas Supreme Court, No. 14-0574, 01/08/2016.

14-0574
Don R. Willett Justice

Supreme Court of Texas

Blair v. Atlantic Industrial, Inc., 14-1041 (Tex. 01/08/2016)

After an automobile accident, the plaintiff sued two parties: Faustino Murillo and his employer, Atlantic Industrial Inc. Murillo stipulated that he was the sole cause of the accident. The trial court disregarded the jury’s apportionment answer and rendered a joint and several judgment for damages against each defendant. The court of appeals’ opinion stated: "We reverse and render judgment that [the plaintiff] take nothing against Atlantic. The judgment in all other respects is affirmed." However, the judgment provided: "We therefore reverse the judgment of the court below and render that the Appellee [the plaintiff] take nothing against Appellants [Atlantic and Murillo]. The judgment in all other respects is affirmed." The opinion and judgment are inconsistent. The court of appeals’ judgment is reversed and remanded for the rendition of a judgment consistent with its opinion. Blair v. Atlantic Industrial Inc., Texas Supreme Court, No. 14-1041, 01/08/2016.

14-1041
PER CURIAM

Supreme Court of Texas

Occidental Chemical Corp. v. Jenkins, 13-0961 (Tex. 01/08/2016)

A chemical company installed an acid-addition device at a plant they later sold. Years after the sale, an employee of the new owner was injured by the device. The employee sued the original owner. The trial court rendered a take-nothing judgment based on a repose defense, but the court of appeals reversed. A claim against a previous owner for injury allegedly caused by a dangerous condition of real property remains a premises-liability claim, regardless of the previous property owner's role in creating the condition. The claim of a person injured by the condition remains a premises-liability claim as to the owner-creator, regardless of how the injured party chooses to plead it. Because the former owner breached no duty, the statutes of repose are irrelevant. The court of appeals’ judgment is reversed and a take-nothing judgment is rendered. Occidental Chemical Corp. v. Jenkins, Texas Supreme Court, No. 13-0961, 01/08/2016.

13-0961
JOHN P. DEVINE JUSTICE

United States Court of Appeals, Fifth Circuit

Local 731 I.B. of T. Excavators and Pavers Pension Trust Fund v. Diodes, Incorporated, 14-41141 (5th Cir. 01/13/2016)

A putative class of purchasers of Diodes Inc. common stock sued Diodes and two of its corporate officers alleging that Diodes and its officers committed securities law violations. The district court dismissed the complaint for failure to state a claim under the heightened pleading requirements of the Private Securities Litigation Reform Act. Diodes accurately warned of the precise impact that a labor shortage would have on its financial results. Most reasonable investors would rather receive an accurate "bottom line" assessment of a disclosed company problem than all of its assumptions and nuances. Even assuming that a case can theoretically be made for more disclosure, the Fund's pleadings are insufficient to support its contention. Significant stock sales alone do not support a strong inference that an officer either knew the importance to investors of the company-specific contributions to the labor shortage or was severely reckless in his ignorance. The sales represented a small portion of his investment in the company, and there are many innocent reasons why an individual would sell stock at a given time. The district court’s judgment is affirmed. Local 731 I.B. of T. Excavators and Pavers Pension Trust Fund v. Diodes Inc., 5th U.S. Circuit Court of Appeals, No. 14-41141, 01/13/2016.

14-41141
EDITH H. JONES, Circuit Judge

United States Court of Appeals, Fifth Circuit

Seth B. v. Orleans Parish School Board, 15-30164 (5th Cir. 01/13/2016)

Parents appeal the denial of reimbursement for an independent educational evaluation. A school district is not required to initiate a hearing in order to contest appellants' right to reimbursement. The IEE's function is not vitiated when only reimbursement is delayed; the parish school board did not unnecessarily delay in demonstrating the IEE's noncompliance. The state-mandated evaluation criteria for learning disabilities is contained in Bulletin 1508. An IEE will meet agency criteria and merit reimbursement if it substantially complies with Bulletin 1508. The district court’s judgment is vacated and remanded. Seth B. v. Orleans Parish School Board, 5th U.S. Circuit Court of Appeals, No. 15-30164, 01/13/2016)

15-30164
PATRICK E. HIGGINBOTHAM, Circuit Judge

United States Court of Appeals, Fifth Circuit

United States v. Garcia-Lopez, 14-41392 (5th Cir. 01/11/2016)

The appellat entered a conditional plea to a single firearm violation, and appeals the denial of his motion to suppress the firearms from which that violation and his resulting conviction flowed. While attempting to serve a felony arrest warrant for the appellant’s younger son, the officer conducted a search and discovered firearms under a mattress. Although protective sweeps may be overbroad where officers search under a mattress without justification, it was logical under the specific facts of this case to suspect that a person might be hiding in a hollowed box spring. The district court’s denial of the motion to suppress is affirmed. United States v. Garcia-Lopez, 5th U.S. Circuit Court of Appeals, No. 14-41392, 01/11/2016.

14-41392
JAMES E. GRAVES, JR., Circuit Judge:

United States Court of Appeals, Fifth Circuit

Cannon v. Jacobs Field Services North America, Inc., 15-20127 (5th Cir. 01/13/2016)

In this suit brought under the Americans with Disabilities Act, the district court granted summary judgment for the employer, finding that the appellant could not prove that he was disabled or a qualified individual. Although the district court concluded otherwise, the ADA includes "lifting" in its list of major life activities. The evidence favoring the appellant also easily passes muster under the revised standard requiring only the perception that he suffered from a physical impairment. Fact issues remain precluding summary judgment on whether, despite the appellant’s impairments, he was still qualified for the field engineer position, including whether climbing a ladder is an essential function. The district court’s judgment is reversed and remanded. Cannon v. Jacobs Field Services North America Inc., 5th U.S. Circuit Court of Appeals, No. 15-20127, 01/13/2016.

15-20127
GREGG COSTA, CIRCUIT JUDGE.

United States Court of Appeals, Fifth Circuit

Serafine v. Branaman, 14-51151 (5th Cir. 01/12/2016)

After the Texas State Board of Examiners of Psychologists ordered her to stop using the title of "psychologist" and to desist from offering or providing psychological services, the appellant sued, alleging that the Psychologists' Licensing Act violates the First and Fourteenth Amendments. Assuming arguendo that the speech of professionals can be regulated incidentally to a valid licensing scheme, such restrictions are properly confined to occupational-related speech made to individual clients. The appellant’s speech was on her campaign website, and was comunicating with voters at large. The inclusion of "psychologist" on the website was not commercial speech, and therefore the decisions involving a state's legitimate power to restrict the use of titles in the commercial context are inapplicable. Section 501.003(b)(1) is a content-based restriction on speech-proscribing one's ability to claim to be a psychologist; that section is unconstitutional as applied to the appellant’s political speech. Section 501.003(c), and §501.003(b)(2), are overbroad and contravene the First Amendment. The district court’s judgment is affirmed in part, and reversed and remanded in part. Serafine v. Branaman, 5th U.S. Circuit Court of Appeals, No. 14-51151, 01/12/2016.

14-51151
JERRY E. SMITH, Circuit Judge.

United States Court of Appeals, Fifth Circuit

Arbuckle Mountain Ranch of Texas, Inc. v. Chesapeake Energy Corp., 15-10955 (5th Cir. 01/07/2016)

After this case was removed by the defendants under the Class Action Fairness Act, the plaintiff moved to remand the case to state court under the "local controversy exception." The plaintiff and the putative class claim to be post-foreclosure owners of disputed oil and gas interests. The putative class allegedly includes between three thousand and five thousand members spread out across the United States. The plaintiff claims the defendants' oil and gas leases automatically terminated upon foreclosure and the defendants' continued operation of these wellheads constituted trespass and conversion. The petition contains two conflicting class definitions. Because the class that the petition at the time of removal sought to have certified is not clearly limited to current owners, and with inadequate evidence of the citizenship of the interim owners in the broader class, the plaintiff has not proven that the exception for local controversies applies. The district court’s order remanding the case to state court is reversed and the case is remanded to the district court. Arbuckle Mountain Ranch of Texas, Inc. v. Chesapeake Energy Corp., 5th U.S. Circuit Court of Appeals, No. 15-10955, 01/07/2016.

15-10955
LESLIE H. SOUTHWICK, CIRCUIT JUDGE.

Court of Appeals of Texas, Fifth District, Dallas

Tatum v. Hersh, 05-14-01318-CV (Tex.App. Dist.5 12/30/2015)

The plaintiffs appeal the dismissal of their suit alleging intentional infliction of emotional distress. The defendant's Texas Citizens Participation Act dismissal motion admits participating in a conversation generally but denies making the specific relevant statements. Under Pickens, a defendant who denies making the communication at issue cannot invoke that dismissal procedure. It is ordered that the appellants recover their costs, that portion of the trial court’s order denying a request for attorney’s fees and sanctions is affirmed, and the remainder is reversed and remanded. Tatum v. Hersh, Dallas Court of Appeals, Dallas Court of Appeals, No. 05-14-01318-CV, 12/30/2015.

05-14-01318-CV
BILL WHITEHILL JUSTICE.

Court of Appeals of Texas, Sixth District, Texarkana

Hydrogeo, LLC v. Quitman Independent School District, 06-15-00007-CV (Tex.App. Dist.6 01/06/2016)

Tax-collecting districts brought suit against an energy company, the appellant, that owned two interests in oil and gas leases. Over the appellant’s objection, the districts were allowed to introduce into evidence a previously undisclosed updated tax statement showing previous and newly accrued taxes owed and reflecting the appellant’s ownership of the interests in question. The trial court entered in-rem judgments enforceable as liens against the respective interests. Because the appellant was on notice that the districts would seek all unpaid taxes, the appellant could not have been unfairly surprised by the tax statement reflecting the current amounts of all unpaid taxes. The judgment was not a personal judgment against the appellant; rather, the judgment was in rem. Consequently, the affirmative defense of non-ownership for the earlier years in question does not apply. The trial court’s judgment is affirmed. Hydrogeo, LLC v. Quitman Independent School District, Texarkana Court of Appeals, No. 06-15-00007-CV, 01/06/2016.

06-15-00007-CV
Josh R. Morriss, III Chief Justice

Court of Appeals of Texas, Sixth District, Texarkana

In re H.B.C., 06-15-00092-CV (Tex.App. Dist.6 01/06/2016)

The appellant challenges the termination of her parental rights to a child. A grandparent, previously appointed as managing conservator, brought the termination action as a predicate to the child’s adoption. Apart from leaving the child with the grandparent (who was under no agreement with the appellant to assume the responsibility to care for the child), the appellant put forth no plan to arrange for the child's care during a period of incarceration. The trial court's ground Q finding was supported by factually sufficient evidence. The trial court’s judgment is affirmed. In re H.B.C., Texarkana Court of Appeals, No. 06-15-00092-CV, 01/06/2016.

06-15-00092-CV
Bailey C. Moseley Justice

United States Court of Appeals, Fifth Circuit

Occidental Chemical Corp. v. Louisiana Public Service Commission, 15-30100 (5th Cir. 01/04/2016)

The district court entered an order indefinitely staying this proceeding to allow the Federal Energy Regulatory Commission to act on an administrative complaint filed by the plaintiff-appellant against a non-party to this action, which largely concerns the same issues. Hines remains good law following Moses H. Cone, and this case is sufficiently close to the facts of Hines to support appellate jurisdiction under the "effectively out of court" rule. Mercury Motor is distinguishable, and does not apply to preclude the district court from applying the primary jurisdiction doctrine in this suit under Public Utility Regulatory Policies Act §210. A deadline will give FERC a reasonable opportunity to act on the complaint without the costs inherent in an indefinite delay. The district court’s stay order is vacated and remanded with instructions. Occidental Chemical Corp. v. Louisiana Public Service Commission, 5th U.S. Circuit Court of Appeals, No. 15-30100 01/04/2016.

15-30100
W. EUGENE DAVIS, Circuit Judge

United States Court of Appeals, Fifth Circuit

United States v. Benns, 14-51207 (5th Cir. 01/06/2016)

The appellant challenges an order to pay restitution to the U.S. Department of Housing and Urban Development imposed under the Mandatory Victims Restitution Act. The appellant was indicted and pleaded guilty to one count of filing a false credit application in an attempt to refinance a mortgage. The government argues that HUD's loss was a direct result of the false application because the filing of the application delayed the foreclosure which resulted in HUD selling the property for a loss. The argument is not supported by the record; for instance, the government failed to submit any evidence that the alleged foreclosure delay, instead of market conditions or other factors, resulted in the loss. The restitution award is vacated. United States v. Benns, 5th U.S. Circuit Court of Appeals, No. 14-51207, 01/06/2016.

14-51207
JAMES E. GRAVES, JR., Circuit Judge.

United States Court of Appeals, Fifth Circuit

Miller v. Metrocare Services, 15-10086 (5th Cir. 01/05/2016)

Following his termination, the appellant sued his employer, a governmental community mental health center. Even assuming the appellant has made out a prima facie case on any of his claims, the employee has articulated a legitimate, nondiscriminatory reason for his termination, including allegations that, as HR director, the appellant failed to conduct required criminal background checks on a number of employees. The record demonstrates that the appellant received sufficient due process at his name-clearing hearing, despite his inability to confront other employees. Confrontation of witnesses is not a mandatory requirement for an adequate name-clearing hearing. The district court’s judgment is affirmed. Miller v. Metrocare Services, 15-10086 (5th Cir. 01/05/2016)

15-10086
EDITH BROWN CLEMENT, CIRCUIT JUDGE.

United States Court of Appeals, Fifth Circuit

United States v. Ramos-Rodriguez, 14-50846 (5th Cir. 01/05/2016)

The appellant contends that the district court erred in admitting evidence at trial regarding a previous traffic stop. The evidence of the prior traffic stop — during which police found a hidden compartment in the appellant’s truck — is relevant to showing knowledge of the hidden drugs. Even assuming arguendo that such evidence may have been inadmissible, it was harmless error because of the overwhelming evidence showing the appellant had knowledge of the drugs: it is implausible that more than a million dollars' worth of cocaine was hidden in the appellant’s truck without his knowledge. It was not error, plain or otherwise, for the government to rely on an agent’s expert testimony in support of its argument that the appellant had knowledge of the cocaine in his truck's hidden compartment. The district court’s judgment is affirmed. United States v. Ramos-Rodriguez, 5th U.S. Circuit Court of Appeals, No. 14-50846, 01/05/2016.

14-50846
PER CURIAM.

United States Court of Appeals, Fifth Circuit

Le v. Lynch, 13-60664 (5th Cir. 01/06/2016)

The appellant challenges the Board of Immigration Appeals' decision to uphold an immigration judge's finding that the appellant was statutorily ineligible for adjustment of status and the BIA's denial of his motion for reconsideration. The appellant contends that determining eligibility, i.e., whether he was convicted of an alleged offense relating to a controlled substance, is a question of law and thus the government’s burden. Notwithstanding the inconclusive evidence here, the burden remains on the appellant to prove eligibility for relief from removal. In light of Mellouli, Peters and Rojas, the appellant’s burden to prove that his conviction did not relate to a controlled substance could have been met, for example, by showing either that he was not convicted of the listed offense, or that his conviction did not involve a drug listed in the federal controlled substance schedules. A pardon by the Canadian National Pardon Centre has no bearing on his conviction for immigration purposes. The petition for review is denied. Le v. Lynch, 5th U.S. Circuit Court of Appeals, No. 13-60664, 01/06/2016.

13-60664
CARL E. STEWART, Chief Judge.

United States Court of Appeals, Fifth Circuit

Wheat v. Florida Parish Juvenile Justice Commission, 14-30788 (5th Cir. 01/05/2016)

A former juvenile detention staff officer appeals from the district court's summary-judgment dismissal of her employment-discrimination suit. Here, the mere assignment of janitorial duties, without further description or detail about what those duties actually were, does not state a materially adverse action under Burlington or Wilson. The appellant produced no evidence to show that the delay in her evaluation or the failure to grant her 4% step increase — accompanied by a right of appeal that she did not exercise — constituted a materially adverse action. The appellant presented no evidence that the denial of a reassignment request made her job objectively worse. The record indicates that the employer has discharged some employees for alleged excessive force, but not others. This mixed record constitutes substantial evidence of a genuine issue of material fact as to whether the appellant’s discharge would have occurred "but for" exercising her protected rights. With regard to the retaliatory termination claim, the district court’s judgment is vacated and remanded; the judgment is otherwise affirmed. Wheat v. Florida Parish Juvenile Justice Commission, 5th U.S. Circuit Court of Appeals, No. 14-30788, 01/05/2016.

14-30788
E. GRADY JOLLY, Circuit Judge

United States Court of Appeals, Fifth Circuit

Gibson v. United States, 14-31303 (5th Cir. 01/04/2016)

A plaintiff fell and sustained injuries while exiting a trailer or mobile home owned by the Federal Emergency Management Agency. He and his wife sued. The district court granted FEMA's motion for summary judgment on the basis that the claims are barred by the Federal Tort Claims Act discretionary function exception. Here, the government operated as a commercial business and welcomed customers to its site as if it were managing a trailer showroom. FEMA's decision to allow customers to fend for themselves in entering and exiting trailers did not require the kind of policy analysis relevant to the exception. The decision concerning how to provide customers invited onto the premises with reasonably safe access to the trailers was not grounded in the policy of the regulatory regime. The district court’s judgment is reversed and remanded. Gibson v. United States, 5th U.S. Circuit Court of Appeals, No. 14-31303, 01/04/2016.

14-31303
LESLIE H. SOUTHWICK, Circuit Judge

United States Court of Appeals, Fifth Circuit

Tubesing v. United States, 15-30347 (5th Cir. 01/06/2016)

The appellant challenges the district court's dismissal of his claims under the Federal Tort Claims Act. The appellant’s claims stem from his employment relationship with the Centers for Disease Control and Prevention. The Civil Service Reform Act provides the appellant’s sole remedy against his employer. Although the appellant points to several actions that are not specifically listed as prohibited personnel practices, Congress never intended that the CSRA would cover only those prohibitions expressed therein. The district court’s judgment is affirmed. Tubesing v. United States, 5th U.S. Circuit Court of Appeals, No. 15-30347, 01/06/2016.

15-30347
JAMES E. GRAVES, JR., CIRCUIT JUDGE.